1 wp 7211.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7211 OF 2011 Sanjiv Kumar S/o Harakchand Kankariya, Age : 51 Years, Occu. : Agril. & Business, R/o 77, Bhagwati Colony, Aurangabad. .. Petitioner Versus 1. The State of Maharashtra. 2. The Collector of Stamps & Joint District Registrar, Class ­ I, Aurangabad. 3. The Chief Controller of Stamps, Maharashtra State, Pune. 4. Smt. Premlata W/o Prabhakar Khot, Age : 76 Years, Occu. : Household, R/o 10, Shantiniketan Colony, Aurangabad 431 002. 5. Dr. Rajni D/o Prabhakar Khot, Age : 56 Years, Occu. : Service & H.H., R/o As above. .. Respondents Shri A. S. Barlota, Advocate for the Petitioner. Shri P. P. More, A.G.P. for the Respondent/State. Shri Kulkarni, Advocate for the Respondent No. 4 and 5. 2 wp 7211.11 CORAM : S. V. GANGAPURWALA, J. DATE : 26TH SEPTEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties, taken up for final hearing. 2. The petitioner is the original plaintiff, who has filed suit for specific performance of contract pursuant to agreement of sale dated 22.03.2008. During the pendency of the suit the said document was impounded. The Collector Stamps directed that the said document requires stamp duty of Rs. 4,25,000/­ and penalty of Rs. 2,80,500/­. The petitioner preferred an appeal. The Appellate Authority dismissed the appeal. The Civil Judge Senior Division, directed the petitioner to comply the order of the Collector of Stamps. The said orders are assailed in the present writ petition. 3. Heard Shri Barlota, the learned counsel for the petitioner and Shri Kulkarni, the learned counsel for respondent Nos. 4 and 5. 4. Shri Kulkarni, the learned counsel for the respondent Nos. 3 wp 7211.11 4 and 5 relying on clauses 3 and 6 of the agreement of sale submits that in view of the said clauses it is clear that the possession was to be handed over to the purchaser prior to the execution of the conveyance. 5. With the assistance of the learned counsel, I have gone through the document i. e. the agreement of sale. On perusal of said document it is manifest that the said document does not contain recital about delivery of possession. The same is sought to be inferred by the authorities which is not permissible. The Division Bench of this Court in a case of Balwantgir Giri through his L.Rs. and others Vs. Manasi Construction & Developers & others reported in 2007 (1) Bom. C. R. 212 has held that even the agreement of sale reciting delivery of possession on the day of sale deed, cannot be termed as conveyance as contemplated under Explanation I to Article 25 of Schedule 1 of the Bombay Stamp Act. In the present case, the agreement of sale does not recite about the delivery of possession at any time prior to the execution of sale deed. In view of that impugned orders cannot be sustained. 4 wp 7211.11 6. The impugned orders are quashed and set aside. Rule is made absolute in terms of prayer clauses "C" and "D". No costs. Sd/­ [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11