Shri. Mahesh Hariram Rohra And Anr. Petitioners v. Raju Khatumal Pahuja

R.G Ketkar, J.:— Heard Mr. P.D Dalvi, learned Counsel for the petitioners.

2. By this Petition under Article 227 of the Constitution of India, the petitioners, hereinafter referred to as ‘defendants’, have challenged the judgment and order dated 2.2.2015 passed by learned 3rd Jt. Civil Judge, Senior Division, Kalyan below Exh.33 Special Civil Suit No. 597/2011. By that order, learned trial Judge rejected the application made by the petitioners under Sections 33 and 34 of the Maharashtra Stamp Act (for short, ‘the Act’) for impounding the Memorandum of Understanding dated 5.8.2011

3. Mr. Dalvi submitted that the respondent, hereinafter referred to as the ‘plaintiff’, has instituted the suit inter alia praying for:

“i) The defendants be jointly and severally ordered and decreed to pay to the plaintiff a sum of Rs. 27,00,000/- (Rupees Twenty Seven Lakhs Only) being the amount of the loan advanced by the plaintiff to the defendants;

Or in the alternative the defendants be ordered and decreed to hand over to the plaintiff the vacant possession of residential flat i.e Flat No. 4, Sai Parushah C.H.S Ltd., Vasanshah Bazaar, Ulhasnagar - 421 005, Dist. Thane and also execute a registered agreement for sale in favour of the plaintiff.

In the event of failure on the part of the defendants to execute a registered agreement in favour of the plaintiff, a fit and proper person be appointed as a Court Commissioner for execution of registered sale agreement in favour of the plaintiff in respect of Flat No. 4, Sai Parushah C.H.S Ltd., Vasanshah Bazaar, Ulhasnagar - 421 005, Dist. Thane.

ii) The defendant be ordered and decreed to pay to the plaintiff further interest on amount of Rs. 27,00,000/- (Rupees Twenty Seven Lakhs Only) at 15% per annum or at any rate at which the Hon'ble Court deems it just and proper, from the date of the filing of the suit till payment by and/or recovery of the amount from the defendant;”

4. Mr. Dalvi submitted that Section 33 of the Act provides for impounding of the instrument which is not duly stamped. Section 34 thereof lays down that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped. He submitted that learned trial Judge however held in paragraph-6 that the Memorandum of Understanding dated 6.8.2011 is only offer and undertaking of defendant No. 1 which is is accepted by the plaintiff and it is not an agreement of sale or conveyance under Article 25. As the Memorandum of Understanding is not a conveyance, it is not necessary to impound the same as prayed for by the defendants. Mr. Dalvi submitted that the findings are clearly contrary to the prayers made in the suit.

5. Mr. Dalvi states that the next date of hearing before the trial Court is 22.2.2016 In view thereof, issue notice to the respondent, returnable on 9.3.2016 The notice shall indicate that subject to time constraint and convenience of the Court, Petition will be disposed of finally at the stage of admission. Notice shall further indicate that despite service if the respondent fails to appear, the Court will decide the Petition on its own merits.

6. In the meantime, there shall be ad-interim order in terms of prayer clause (b).