A conjoint reading of the covenants of the said Memorandum of Understanding coupled with the averments in the Plaint lead to a conclusion that the land in question has been handed over to the Plaintiffs for development. Unless the possession is handed over, the various obligations which have been adverted to hereinabove cannot be fulfilled by the Plaintiffs. It is in the said context that the submissions of the learned counsel appearing for the Petitioners would have to be considered. Though the learned counsel for the Petitioners was at pains to point out that the said agreement postulates a Joint Venture Agreement to be executed, in my view, the said covenant would not take the case of the Plaintiffs any further. Merely because a Joint Venture Agreement was to be entered into, the same would not mean that the document in question would not be covered by Explanation-1 to Article 25 of the said Act. The facility of having a joint venture was to see to it that the development of the property takes place and was not in the nature of a clause which postulates a further agreement to be executed, on the execution of which, possession was to be handed over. The Joint Venture Agreement was to be entered into merely to facilitate the development of the land in question and has nothing to do with handing over possession of the land. The covenant No. 16 as can be seen contemplates the development to be carried out within three years. The said covenant is a defining covenant in so far as the aspect of possession is concerned. There was no question of fixing a time frame if the possession was to be postponed to a future date as was sought to be contended by the learned counsel appearing for the Petitioners, though not with any great deal of conviction. Implicit in the said aspect of development being completed in three years is the acceptance of the fact that the possession in fact was handed over for the purposes of carrying out the intent and objects of the said Development Agreement. The Trial Court was right in recording that the exact nature of the transaction is not sought to be revealed by the Plaintiffs. Curiously the aspect of possession has not been covered in the Memorandum of Understanding and this can only be attributed to the fact that by clever drafting, the aspect of possession has been purposely kept away. It is to cover such eventualities where possession is handed over and the execution of the sale deed is avoided so as to avoid the payment of stamp duty that Explanation-1 to Article 25 was introduced in the said Act. The said aspect has been dealt with in the judgment in Balwantgir Giri's case (supra). In my view therefore a reading of the covenants and the averments made in the Plaint lead to an irresistible conclusion that the document is a conveyance and was therefore chargeable to stamp duty in terms of Article 25 of the said Act. The impugned order of the Trial Court impounding the document and sending it to the Collector of Stamps therefore cannot be taken exception to. No case for interference is therefore made out.1
Writ Petition No. 9210 of 2012
Print Page
2013(4)ALLMR28, 2013(4)MhLj202
IN THE HIGH COURT OF BOMBAY
Decided On: 25.04.2013
Appellants: Shri Ashok Ganagsahai Singhal and Ors.
Vs.
Respondent: Shri Ramdhar Nankulal Yadav and Ors.
Vs.
Respondent: Shri Ramdhar Nankulal Yadav and Ors.
Hon'ble Judges/Coram:R.M. Savant , J.
