1 WP-4762-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 4762 OF 2010 Hamida Hajjin Mard Haji Mohd. Hanif .... Petitioner (Orig. Plaintiff) Vs. Vithabal Uttam Suryavanshi .... Respondent Mr. M.M.Sathaye, Advocate, for the petitioner. CORAM: J.H.BHATIA,J. DATE : 19th October, 2010. P.C. 1. Notice was served to the respondent clearly indicating that the petition may be disposed of finally at the stage of admission. Inspite of service, none appears for the respondent. 2. Heard the learned Counsel for the petitioner. 3. The petitioner had filed Special Civil Suit No.101 of 2004 for specific performance of contract for sale of agricultural land for consideration of Rs.6,70,000/-. Out of the consideration amount, a sum of Rs. 1,50,000/- was paid as earnest money at the time of execution of agreement dated 14.10.2000. The 2 WP-4762-10.sxw balance amount was to be paid within six months. Possession was not handed over to the petitioner. The possession was to be given at the time of execution of the sale deed. The defendant filed an application Exhibit 61 contending that the agreement for sale was executed on stamp paper of Rs.20/- only while the document amounts to conveyance and the Court fee on consideration amount should have been paid. He prayed for impounding of document and for recovery of the stamp duty along with penalty. The application was opposed by the plaintiff contending that the document does not amount to conveyance. 4. The learned trial Court, after hearing the parties, allowed the application and impounded the document. That order is challenged in the present petition. 5. Article 25 in the Schedule to the Bombay Stamp Act, 1958 provides for payment of stamp duty on conveyance deed. Explanation to Article 25 reads thus :- "For the purposes of this Article, where in the case of agreement to sell an immovable property, the possession of any immovable property, is transferred or agreed to be transferred to the purchaser before the execution, or at the time of execution, or after the execution of such 3 WP-4762-10.sxw agreement then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly". In view of this Explanation, if possession of immovable property is transferred or agreed to be transferred to the purchaser before the execution or at the time of execution or after execution of the agreement for sale, then such agreement for sale shall be deemed to be conveyance and stamp duty shall be leviable accordingly. It does not provide that on every agreement for sale, the stamp duty should be levied just like a conveyance deed. Transfer of possession of the immovable property before or at the time of or after execution of agreement for sale is necessary to invoke the explanation. In the present case, the agreement for sale clearly shows hat the possession of the property was not transferred to the plaintiff and that the possession was to be given only at the time of execution of sale deed and not at the time of execution of the agreement for sale as such. The Division Bench of this Court has already taken similar view in Nanibai wd/o Balwant Giri & Ors. vs. Manasi Construction and Developers & Ors. The trial Court misinterpreted the Explanation to Article 25 and wrongly applied the provision to the agreement for sale in the present case where the Explanation is not at all applicable. Thus, the trial Court committed an error in impounding the document. 4 WP-4762-10.sxw 6. For the aforesaid reasons, the Petition is allowed and the impugned order is set aside. (J.H.BHATIA,J.)