Mr.G.R.Syed, Advocate holding for Mr.V.P.Narwade &Adv.Manjushri v. Narwade, Advocates for the
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18535.24WPIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8535 OF 2024Santosh Baban Nale, Age : 45 years, Occu. : Agri., R/o. Kashti, [Sangawi Fata], Tq. Shrigonda, Dist. Ahmednagar. .. PETITIONER [Ori.Defendant] VERSUS Sau. Vimal Rajendra Shinde Age: 45 years, Occu. : Business, R/o. Kashti, [Sangawi Fata], Tq. Shrigonda, Dist. Ahmednagar. .. RESPONDENT [Ori. Plaintiff]…Mr.G.R.Syed, Advocate holding for Mr.V.P.Narwade &Adv.Manjushri V. Narwade, Advocates for the petitioner Mr.Dilip B. Rode, Advocate for respondent. …CORAM : ARUN R. PEDNEKER, J. DATE : 20.08.2024 ORDER : 1]By the present Writ Petition, the petitioner ischallenging the order dated 25.04.2024 passed by the 3rdJoint Civil Judge Senior Division, Shrigonda below Exh.38in Regular Civil Suit No.67 of 2015 whereby the applicationfiled by the plaintiff-respondent for impounding of theagreement to sell dated 31.03.2008 and submitting the 28535.24WPsame to the Collector for payment of stamp duty inaccordance with the provisions of the Maharashtra StampAct, 1958, was allowed. Brief facts leading to filing the present WritPetition are summarized as under:2]The respondent – plaintiff has filed a suit forspecific performance of contract on the basis of unregisteredagreement to sell dated 31.03.2008. The petitioner –defendant filed written statement and denied all thecontentions raised by the plaintiff in the suit. Duringpendency of the suit, the plaintiff filed an application belowExh.27 on 07.09.2017 for impounding of the agreement tosell dated 31.03.2008 under Section 33 of the BombayStamp Act and requested it to be sent to the Collector forpayment of stamp duty. The said application was withdrawnby the plaintiff. Thereafter another application was filed bythe plaintiff for impounding of the said agreement dated31.03.2008 at Exh.38 on 10.11.2023. The said applicationis resisted by the petitioner – defendant contending thereinthat the respondent – plaintiff is trying to register the illegal
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38535.24WPdocument which is ab initio void contract between theparties. The plaintiff has already filed an application for thesame purpose and withdrawn the same. However, the trialCourt, by order dated 25.04.2024, allowed the subsequentapplication. Against the said order, the present writ petitionis filed. 3]It is the contention of the petitioner that voidcontract which ceases to be enforceable by law cannot bebecome lawful by permitting it to be stamped, so also, it isstated that once application for impounding of theagreement to sell is withdrawn by the plaintiff, he could nothave moved another application for the same purpose. Thelearned counsel for the petitioner relied upon the judgmentin the case of Ameer Minhaj Vs. Dierdre Elizbeth [Wright]Issar and Ors. in Civil appeal No.18377 of 2017, decided on04.07.2018 relevant paras 10 and 11. 4]Per contra, the learned counsel for therespondent submits that once the document liable forpayment of stamp duty is executed, it become liable to be 48535.24WPimpounded for payment of stamp duty and merely becauseearlier application is withdrawn by the plaintiff, the Courtcan proceed with the process of impounding the documentfor payment of stamp duty. Therefore, the application filedby the plaintiff is rightly allowed by the trial Court. 5]Having considered the rival submissions. It isrequired to be noted that the agreement dated 31.03.2008is a notarized agreement and written on the stamp ofRs.100/-. The agreement dated 31.03.2008 is to sell animmovable property and the agreement notes thatpossession of the immovable property is to be given to thepurchaser on part payment of consideration. The agreementto sell is thus deemed to be a conveyance under theMaharashtra Stamp Act, 1899 and stamp duty is leviable onthe instrument. As such, it is the duty of the Court underSection 33 of the Stamp Act to impound the document andforward it to the Collector for payment of stamp duty. Thevalidity of the agreement does not depend uponimpounding and further stamping of the document. The 58535.24WPvalidity of the agreement to sell could be considered at thestage of the trial. The earlier application filed by theplaintiff for impounding, the document even if it iswithdrawn is of no consequence. It is the duty of the courtto impound the document liable for payment of stamp duty,is insufficiently stamped. In the case of Omprakash Vs.Laxminarayan & others in Civil Appeal No.9032 of 2013[Special Leave Petition [C] No.20721 of 2008, decided on07.10.2013, the Hon’ble Supreme Court at para nos. 10 and11 has held as under : 10.The aforesaid Explanation has come intoeffect from 26th September, 1990. TheExplanation, therefore, creates a legalfiction. The agreement to sell shall bedeemed to be a conveyance and stamp duty isleviable on an instrument whereby possessionhas been transferred. Thus the agreement tosell in question is a conveyance within themeaning of Section 2 (10) of the Act and isto be duly stamped. Section 35 of the Actmakes instruments not duly stampedinadmissible in evidence, the relevantportion whereof reads as follows :“35.Instruments not duly stampedinadmissible in evidence, etc. - Noinstrument chargeable with duty shallbe admitted in evidence for any purposeby any person having by law or consentof parties authority to receiveevidence, or shall be acted upon,registered or authenticated by any such 68535.24WPperson or by any public officer, unlesssuch instrument is duly stamped : Provided that - (a)any such instrument shall beadmitted in evidence on payment of theduty with which the same is chargeableor, in the case of an instrumentinsufficiently stamped, of the amountrequired to make up such duty, togetherwith a penalty of five rupees, or, whenten times the amount of the proper dutyor deficient portion thereof exceedsfive rupees, of a sum equal to tentimes such duty or portion; xxx xxx xxx.” 11.From a plain reading of the aforesaidprovision, it is evident that an authorityto receive evidence shall not admit anyinstrument unless it is duly stamped. Aninstrument not duly stamped shall beadmitted in evidence on payment of the dutywith which the same is chargeable or in thecase of an instrument insufficientlystamped, of the amount required to make upsuch duty together with penalty. As we haveobserved earlier, the deed of agreementhaving been insufficiently stamped, the samewas inadmissible in evidence. The courtbeing an authority to receive a document inevidence to give effect thereto, theagreement to sell with possession is aninstrument which requires payment of thestamp duty applicable to a deed ofconveyance. Duty as required, has not beenpaid and, hence, the trial court rightlyheld the same to be inadmissible inevidence. The view which we have taken findssupport from a decision of this Court in thecase of Avinash Kumar Chauhan v. VijayKrishna Mishra, 2009 (1) RCR (Civil) 615 :2009 (1) Recent Apex Judgments (R.A.J.) 78535.24WP297 : (2009 ) 2 SCC 532, in which it hasbeen held as follows :“21.It is not in dispute that thepossession of the property had beendelivered in favour of the appellant.He has, thus, been exercising someright in or over the land in question.We are not concerned with theenforcement of the said agreement.Although the same was not registered,but registration of the document hasnothing to do with the validity thereofas provided for under the provisions ofthe Registration Act, 1908. 22.We have noticed heretobefore thatSection 33 of the Act casts a statutoryobligation on all the authorities toimpound a document. The court being anauthority to receive a document inevidence is bound to give effectthereto. The unregistered deed of salewas an instrument which requiredpayment of the stamp duty applicable toa deed of conveyance. Adequate stampduty admittedly was not paid. Thecourt, therefore, was empowered to passan order in terms of Section 35 of theAct.” 6]The above judgment of the Supreme Court hasheld that if the document is not sufficiently stamped itcannot be read in evidence unless the document is stampedafter following process as available under the BombayStamp Act. The agreement to sell, in the instant case, isliable for payment of stamp duty and is correctly 88535.24WPimpounded by the trial Court. Hence, the present WritPetition is dismissed.[ARUN R. PEDNEKER] JUDGE DDC