ORDER
V.V.S. Rao, J.
1. The petitioner is the plaintiff in O.S, No. 20 of 2004 on the file of the Court of the V Additional District Judge (Fast Track Court), Ranga Reddy District. The suit is for specific performance of agreement of sale, dated 25-7-1998, in respect of suit schedule land admeasuring Acs.33.33 guntas in various survey numbers situated at Mangalpally Village of Ibrahimpatnam Mandal in Ranga Reddy District.
2. It is the case of the plaintiff that the defendant entered into agreement initially for an extent of Acs. 150.00 of land, who later executed sale deeds in respect of Acs. 116.06 guntas in favour of the nominees of the plaintiff but failed to execute the sale deeds in respect of balance area of Acs.33.33 guntas. The defendant opposed the suit inter alia raising objection that the agreement of sale, which is engrafted on a stamp paper of Rs. 100/- cannot be looked into as per the provisions of A.P. Act 21 of 1995. The defendant contended that when the immovable property is delivered possession to the vendee under agreement of sale or pursuant thereto, the agreement has to bear stamp duty on par with conveyance deed. When the suit was coming up for trial, objection was raised by the defendant regarding admissibility of the suit agreement, dated 25-7-1998. Considering the question, the trial Court placed reliance on the decision of the Division Bench of this Court in B. Ratnamala v. G. Rudramma Veena Hasmukh Jain v. State of Maharashtra , and came to the conclusion that if the agreement itself recites the delivery of possession, such document has to be charged with stamp duty as if it is a conveyance under Article 47-A of Schedule I-A of the Indian Stamp Act, 1899 (Stamp Act, for brevity). Accordingly, the trial Court on 8-3-2006 ordered plaintiff to pay stamp duty and penalty under the Stamp Act or seek the document to be sent to Collector for impounding under Section 38(1) of the Stamp Act. This civil revision petition is filed assailing the said order.
3. Learned Counsel for the petitioner strenuously contends that the suit agreement executed by the defendant in favour of the plaintiff falls under Article 6-A of the Stamp Act and not under Article 47-A of Schedule I-A of the Stamp Act. He vehemently contends that Article 47-A describes the instruments in relation to sale as defined in Section 54 of the Transfer of Property Act, 1882, and an agreement not being sale within the ambit of Section 54 of the Transfer of Property Act, main provision of Article 47-A of Schedule I-A of Stamp Act has no application to an agreement of sale. According to the learned Counsel, it is only by reason of Explanation I below Article 47-A, an agreement to sell followed by delivery of possession is made chargeable as sale under Article 47A of Schedule I-A of Stamp Act. Therefore, he would submit that Explanation to a provision cannot control the interpretation of the main provision. He would reply on the decision of the Supreme Court in M.P. Cement Manufacturers’ Association v. State of M.P. , wherein the Supreme Court explained the function of “Explanation and proviso”. Per contra, the learned Counsel for the respondent submits that as per the decision of the Division Bench of this Court in B, Ratnamala (supra), under Article 47-A of Schedule I-A of Stamp Act, an agreement of sale followed by delivery of possession must be charged as a sale deed. He also placed reliance on a recent decision of this Court in C.R.P. No. 849 of 2006, dated 174-2006, between the same parties, in which the respondent herein is the first petitioner and petitioner herein is the respondent. The said case arose out of the suit being O.S. No. 95 of 2004 filed by the petitioner herein and during the trial, the trial Court admitted an agreement of sale, which also evidenced delivery of possession. When the defendants filed the said revision, this Court allowed the same holding that the agreement is chargeable with the stamp duty under Article 47-A of Schedule I-A of Stamp Act.
4. In C.R.P. No. 849 of 2006 (supra), the fact situation is similar. Dealing with this question, this Court recorded the following findings:
The plaintiff filed the suit for specific performance of agreement of sale. In Para 7 of the plaint, the plaintiff alleged that, “as per the agreement, dated 21-11-1997, the plaintiff was permitted to carry out the development works over the suit schedule property and accordingly the plaintiff developed the land and enjoying the possession of the suit schedule property.” In the affidavit, which the plaintiff filed in support of the application for injunction being I.A. No. 1577 of 2004, similar admission is made. There cannot be any doubt that according to the plaintiff himself, that he was trying to enforce the specific performance of an agreement of sale followed by deliver of possession of the property agreed to be sold and in view of the admission made, there is also evidence of delivery of possession. Therefore, the agreement is chargeable with the stamp duty as per Article 47-A of Schedule I-A of the Stamp Act. The submission that Article 6(A) of Schedule I-A applies, is misconceived. Even according to the plaintiff, he purchased the land under agreement of sale, took possession of the land, developed the land and enjoying the same. In which case, Article 6(A) of Schedule I-A of Stamp Act has no application.
5. In this case, as per clauses (1), (2) and other clauses of agreement of sale, the purchaser was enabled to get layout approved by Town Planning authorities, to advertise the sale of plots and book the sales to prospective purchasers, receive the consideration, by passing necessary receipts and deal with the property with necessary control over the land. Further in Para 4 of the plaint, the petitioner averred that in pursuance of the agreement of sale, the defendant permitted the plaintiff to enter into the suit schedule property to develop the same by obtaining sanction plan. This itself would show that possession was delivered to the petitioner following which the layout was prepared and the land was also sold to many third parties to an extent of about Acs. 116.00. Therefore, as rightly found by the trial Court, the agreement in question is chargeable as conveyance under Article 47-A of Schedule I-A of Stamp Act.
6. In Veena Hasmukh Jain’s case (supra), the Supreme Court considered Article 25 of Schedule I of Bombay Stamp Act, 1958. The said Article refers to the stamp duty prescribed for conveyance of immovable property. Explanation I provided that where possession of immovable property is transferred to the purchaser pursuant to an agreement to sell without execution of conveyance deed, then such sale agreement shall be deemed to be a conveyance and stamp duty thereon shall be levied accordingly under Article 25 of Schedule I of Bombay Stamp Act. The two appellants before the Supreme Court entered into agreement with builders for purchase of a flat in terms of Section 4 of Maharashtra Ownership of Flats (MoF) Act, 1963. When the agreement was presented for registration, the Sub-Registrar, Bombay impounded the same and sent it to Superintendent of Stamps, Bombay, under Section 32-A of the Bombay Stamp Act for determination of true market value of the property. Even before the same was adjudicated, the appellants filed the writ petition challenging the legality of the notice issued to them, and also the provisions of the Bombay Stamp Act relating to determination of the market value. The same went against them, and therefore, appealed to the Supreme Court. The Apex Court considered the question as to whether an agreement to sell is a document conveying right, title and interests of the property as per the Bombay Stamp Act. Noticing Explanation I to Article 25 of Schedule I of the Bombay Stamp Act, the Supreme Court ruled that as per Explanation I, an agreement under which the possession is transferred to the purchaser is conveyance, and that it is certainly open to the State to charge instrument at a particular rate which is akin to conveyance and that it is open to the Legislature to levy duty on different kinds of agreements in different rates. It is appropriate to quote the following from the judgment of Supreme Court:
The duty in respect of an agreement covered by the Explanation is leviable as if it is a conveyance. The conditions to be fulfilled are that if there is an agreement to sell immovable property and possession of such property is transferred to the purchaser before the execution or at the time of execution or subsequently without executing any conveyance in respect thereof, such an agreement to sell is deemed to be a “conveyance”. In the event a conveyance is executed in pursuance of such agreement subsequently, the stamp duty already paid and recovered on the agreement of sale. which is deemed to be a conveyance shall be adjusted towards the total duty leviable on the conveyance. Now, in the present case, the agreement entered into clearly provides for sale of an immovable property and there is also a specific time within which possession has to be delivered. Therefore, the document in question clearly falls within the scope of Explanation I. It is open to the legislature to levy duty on different kinds of agreements at different rates. If the Legislature thought that it would be appropriate to collect duty at the stage of the agreement itself if it fulfils certain conditions instead of postponing the collection of such duty till the completion of the transaction by execution of a conveyance deed inasmuch as all substantial conditions of a conveyance have already been fulfilled such as by passing of a consideration and delivery of possession of the property and what remained to be done is a mere formality of execution of a sale deed, it would be necessary to collect duty at a later (sic agreement) stage itself though right, title and interest may not have passed as such. Still, by reason of the fact that under the terms of the agreement, there is an intention of sale and possession of the property has also been delivered, it is certainly open to the State to charge such instruments at a particular rate which is akin to a conveyance and that is exactly what has been done in the present case.
7. In B. Ratnamala (supra), having regard to the law laid down by the Supreme Court in Veena Hasmukh Jain (supra), a Division Bench of this Court laid down as under:
While considering the provisions of the Indian Stamp Act, it has to be borne in mind that the said Act being a fiscal statute, plain language of the section as per its natural meaning is the true guide. No inferences, analogies or any presumptions can have any place. As the incidence of duty is on the execution of the deed, regard must, therefore, be had only to the terms of the document. Thus the main question that falls for consideration is the interpretation of the expressions “followed by or evidencing delivery of possession”. These expressions cannot be read in isolation and one has to find the true meaning by reading the entire Explanation and more so in conjunction with the earlier expression i.e., “agreement”. Even if these two expressions are looked independently, it means an agreement to sell followed by delivery of possession and an agreement to sell evidencing delivery of possession. In the first case, i.e., “followed by delivery”, possession cannot be disjuncted from the basic source i.e., agreement to sell. Therefore, the expression followed by delivery of possession should have a direct nexus to the Agreement and should be read in juxtaposition to the word ‘agreement’ and it cannot be independent or outside the agreement. Therefore, the delivery of possession should follow the agreement i.e., through the agreement. It takes in its sweep the recital in the agreement itself that delivery of possession is being handed over. It will also cover cases of delivery of possession contemporaneous with the execution of Agreement, even if there is no specific recital in the Agreement. In other words, the delivery of possession should be intimately and inextricably connected with the Agreement. And in the second type, i.e., agreements evidencing delivery of possession, if the document contains evidence of delivery of possession by a recital in that behalf, that is sufficient. Such delivery of possession can be prior to the date of agreement and need not be under the agreement. If the agreement records the fact that the possession was delivered earlier and such recital serves as evidence of delivery of possession, though prior to the Agreement, it falls under the second limb. Therefore, on a proper interpretation of the said expressions, it would follow that an agreement containing specific recital of delivery of possession or indicating delivery of possession even in the past is liable for stamp duty as a ‘sale’ under the said Explanation.
8. The trial Court referred to above two decisions and came to the correct conclusion that on their own admission, plaintiff was delivered possession and therefore, it is chargeable as conveyance. In that view of the matter, this revision petition under Article 227 of Constitution of India is misconceived as there is no grave error apparent on the face of record nor there is any plea that the trial Court failed to act within the bounds of law.
9. The civil revision petition is accordingly dismissed. No costs.