ORDER R.M.S. Khandeparkar, J.
1. Heard the learned advocate for the applicant/original petitioners. None present for the respondents, though served.
2. By this review petition, the applicants are seeking review of the order dated 29th January, 2003 passed in the Writ Petition No. 7410 of 2002. The review is sought on two grounds. One is that a new and important fact has been discovered by the applicants which relates to the sale of the property by the respondents to a third party, and secondly that the penalty which could have been imposed under the Stamp Act could not have been more than double the amount of stamp duty to which the documents could have been normally subjected to and in the case in hand, the penalty has been imposed 10 times of the said stamp duty, and both the points were not considered by this Court while disposing of the petition in the order dated 29th January, 2003.
3. As regards the discovery of new and important fact, which is stated to be relating to the conveyance of the property in question in favour of a third party, merely because it is alleged to have come to the knowledge of the applicants subsequent to the passing of the order in question, that itself ipso facto cannot make it a discovery of a new and important fact after passing of the said order. New and important material or evidence can be said to have discovered for the purpose of seeking review of an order only in cases where in spite of exercise of due diligence, the same could not have been within the knowledge or could not have been produced earlier by the applicants. In order to establish that the material or evidence has been newly discovered so as to justify review of the order, on that count, it is absolutely necessary for the applicants to prove that in spite of diligent efforts on their part, the same could not be known to them or could not produced by them earlier to the passing of the order sought to be reviewed. The requirement of due diligence in the efforts of the applicants must be clearly established for invoking powers under Order 47, Rule 1 of the Code of Civil Procedure, 1908. Any conveyance of the immovable property worth Rs. 100/- and above is necessarily required to be registered. Being so, merely because the applicants learnt about such conveyance after passing of the order in question, that itself will not lead to a conclusion that a new and important aspect of the matter has been discovered. It is not their case that they had made necessary efforts to get such information prior to the passing of the order in question, and if so, what were the efforts.
4. Besides, the order under challenge relates to imposition of penalty for failure on the part of the applicants to pay stamp duty in accordance with the provisions of the Bombay Stamp Act, 1958. The occasion for imposition of penalty had arisen on account of assumption on the part of the parties that the document was a mere agreement for sale when in fact it also reveals clause relating to the delivery of possession of the property. Further, the Court on consideration of the fact that the document disclosed actual delivery of possession along with the said agreement has construed it as a document covered by the Article 25 Explanation-1 of the First Schedule of the said Act, and therefore, the same is to be held as a conveyance and not a mere agreement. That being the subject-matter of dispute, and there has been a conveyance of the property subsequent to the said document, it is of no consequence for decision in the matter and that cannot be considered as discovery of a new and important matter for the purposes of exercise of powers under Order 47, Rule 1 of the Code of Civil Procedure, 1908 in relation to the order in question.
5. As regards the second ground is concerned, undoubtedly, the Section 32A, Third proviso to Sub-section (2)(a) thereof, provides that the amount of penalty should not exceed double the deficient portion of the stamp duty. However, it is doubtful, whether the said provision will be attracted when the document is sought to be impounded in the course of proceedings before the Court. Be it as it may, there are other provisions in the Stamp Act which also prescribe that the maximum penalty could be double the deficient portion of the stamp duty. Being so, prima facie, it appears that the penalty could not have been in excess of double the amount of stamp duty payable on conveyance, and on that count, the applicants perhaps could have successfully persuaded the Court to grant a limited interim relief whereby the impugned order could have been stayed subject to penalty being restricted to double the amount of stamp duty. However, it is pertinent to note that neither this argument was advanced at the time of hearing on 29th January, 2003 nor even a ground in that regard was raised in the Writ Petition No. 7410 of 2002. I have perused the writ petition and the grounds * raised therein and nowhere it discloses any ground on the aspect of penalty being in excess of the provisions of law. The entire challenge related to the nature of the document. The contention of the applicants was that the document was purely an agreement for sale and there was no conveyance of the property. Being so, the ground on which the order dated 29th January, 2003 is sought to be reviewed was not at all borne out from the records and not available in the facts and circumstances of the case to the applicants on 29th January, 2003 when the said order was passed, and therefore, the ground which is now sought to be raised being totally a new ground which is not reflected even from the writ petition, by no stretch of imagination, can be said that there is an error apparent on the face of record in the said order. Whether it would be a ground to seek modification of the order dated 29th January, 2003 by taking proper recourse and remedy or not is totally a different issue. But the ground in the manner it has been raised cannot be a ground to warrant review of the order dated 29th January, 2003.
6. The learned advocate for the applicants has also sought to rely upon the decision of the learned Single Judge in Balasaheb Sahebrao Jadhav v. Hanumant Bhaurao Deshmukh reported in 1995(1) Mh.LJ. 473, therein the learned Single Judge had held that the agreement which was subject-matter of the dispute in the said case, viz. agreement dated 24th February, 1990 which was recorded on the stamp paper of Rs. 10/-, was merely an agreement for sale which falls outside the Article 25 of the Bombay Stamp Act, and therefore, the said Article was not applicable. The observation which was made by the learned Single Judge therein was to the effect that "it is elementary that sale is a transfer of property for price paid or promised to pay or part paid and part promised to pay but a contract for sale of an immovable property is a contract for the sale of such property which takes place on the terms settled between the parties. Section 54 of the Transfer of Property Act clearly provides that the contract for sale does not, of itself, create any interest in or charge on the property." Obviously, the learned Single Judge has proceeded to hold that the document does not warrant stamp duty in terms of the Article 25 of the Bombay Stamp Act because the said Agreement does not create any interest in the property since it is a mere agreement for sale without delivery of possession. The discussion nowhere discloses whether the agreement also contemplated delivery of possession. The essence of the Article 25 of the Bombay Stamp Act is that any agreement which is accompanied by the delivery of possession of the property which is subject-matter of the agreement would warrant subject-matter in terms of the said Article. It does not speak of creation of any interest as such so as to warrant stamp duty under Article 25 of the Bombay Stamp Act. The decision does not help the applicants to seek interference in the order dated 29th January, 2003 for review thereof.
7. For the reasons stated above, therefore, the petition for review is without merit, and hence the same is dismissed with costs.