Bombay High Court
Salim Baig Akhtar Baig vs Sayyad Nawid Sayyad Nazir on 29 July, 2025
2025:BHC-AUG:19926
WP-13409-23.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13409 OF 2023
Salim Baig S/o. Akhtar Baig,
Age: 30 years, Occu: Agri. & Business,
R/o. A/p. Malapuri, Tq & Dist. Beed. ....PETITIONER
(Orig. Defendant)
VERSUS
Sayyad Nawid S/o. Sayyad Nazir,
Age: 34 years, Occu: Agri.
R/o. Mominpura, Beed,
Tq. & Dist. Beed. ....RESPONDENT
(Orig. Plaintiff)
....
Mr. J. M. Murkute, Advocate for petitioner
Mr. E. S. Potdar, Advocate for Respondent
....
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : 09.07.2025
PRONOUNCED ON 29.07.2025
JUDGMENT :
-
1. Rule. Rule made returnable forthwith, heard finally by
consent of parties.
2. The petitioner/defendant takes exception to order dated
10.05.2023, passed by learned District Judge, Beed in Misc. Civil
Appeal No.91 of 2022, thereby upholding order dated 21.09.2022
passed by learned Joint Civil Judge Senior Division, Beed below
Exhibit-5, in Special Civil Suit No.93 of 2022, thereby granting
temporary injunction in favour of respondent/plaintiff.
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3. The brief facts giving rise to the present petition are as under.
4. Petitioner/original defendant is owner of suit property. He
agreed to sell suit land to respondent/plaintiff for consideration of
Rs.92,50,000/- (Rs. Ninety Two Lac Fifty Thousand only). Accordingly,
executed tabe-isar-pavti / Notarised Agreement. An earnest money of
Rs.2,00,000/- was paid. After execution of agreement, plaintiff paid further
installment on 08.07.2020 and 11.11.2020. Eventually, defendant received
total earnest money of Rs.22,00,000/- lakh (Rs. Twenty Two Lac only). The
sum and substance of agreement is that plaintiff was permitted to develop
land and create saleable plots over suit property and after selling them, to
pay consideration to defendant in installments within time limit. Defendant
was to execute bharna-pavtis time to time and also execute documents in
favour of prospective purchasers of plots. Defendant was under obligation
to clear-off encumbrances upon suit plots and finally execute sale deed of
balance land by 25.06.2022 after receiving total consideration.
5. Plaintiff contends that he was ready to pay balance
consideration amount and requested defendant to clear-off loans; however,
he failed to do so and execute sale deed.
6. Defendant took stand that he was intending to develop
property and convert in saleable plots; therefore, agreement was executed.
However, plaintiff failed to develop property or sell out plots within
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specified time limit. Pertinently defendant admitted receipt of amount of
Rs.22,00,000/- (Rupees Twenty Two Lakh Only).
7. Learned Trial Court, after considering rival contentions,
allowed application Exhibit-5 and temporarily injuncted defendant from
alienating suit property by any mode or disturbing possession of plaintiff till
disposal of suit, except by following due process established by law. The
aforesaid order was subjected to challenge before learned District Judge in
Misc. Civil Appeal No.91 of 2022, who affirmed order and dismissed
appeal.
8. Heard learned Advocates appearing for respective parties.
9. Mr. J. M. Murkute, learned Advocate appearing for petitioner
submits that tabe-isar-pavti dated 26.06.2020 can never be termed as
agreement to sell in strict sense. In fact, it was agreement for development
of property and plaintiff was expected to carve out plots and facilitate sale to
prospective purchasers within specified time limit and pay agreed amount to
defendant.
10. Mr. Murkute Points out that document dated 26.06.2020 is
neither registered nor it is stamped, but simply notarized on bond paper of
Rs.100/-. He would further point out that suit land was never put into
possession of defendant, although he was permitted to take necessary steps
to carve out plotting and develop property for sale. However, Courts below
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relied upon contents of inadmissible and unregistered document, granted
temporary injunction against defendant.
11. In support of his contentions, he relies upon judgment of
Hon'ble Supreme Court in case of Avinash Kumar Chauhan Vs. Vijay
Krishna Mishra reported in 2009 AIR SCW 979. According to Mr.
Murkute, in absence of impounding document, it could not have been
considered even for collateral purpose.
12. Per contra, Mr. E. S. Potdar, learned Advocate appearing for
respondent/plaintiff relying upon judgment of Hon'ble Supreme Court in
case of Ameer Minhaj Vs. Dierdre Elizabeth (wright) Issar reported in
2019 (3) Mh.L.J 550, submits that issue as to registration and requisite
stamp duty cannot be looked into at preliminary stage when application for
temporary injunction is considered. According to him, before admitting
document in evidence, Court has power to impound insufficiently stamped
instrument under Section 35 of Stamp Act and this issue can be considered
by Trial Court at appropriate stage.
13. Mr. Potdar further relies upon judgment of this Court in case of
Merces Builders Private Limited Vs. Shaikh Mohammad Hanif Bepari &
Others reported in 2017 (5) AllMR 401 to contend that in case of
memorandum of understanding which is not duty stamped or registered,
appropriate steps can be taken for impounding of document at the stage of
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evidence.
14. Having considered submissions advanced by learned
Advocates appearing for respective parties and upon perusal of impugned
orders, it can be gathered that parties have admitted execution of tabe-isar-
pavti dated 26.06.2020 and parting of earnest amount of Rs.22,00,000/- in
pursuance of agreement. However, defendant disputes nature of agreement
contending that he was intending to develop property. Plaintiff had assured
for development carve out saleable plots. The validity of agreement expired
on 25.06.2025. The agreement is inadmissible being insufficiently stamped.
The possession of property was never delivered. Plaintiff is in business of
sale and purchase of property. He induced defendant to execute agreement,
assuring for development of property. Plaintiff was never intending to
purchase property for himself, but he was intending to assist development of
plots for defendant without taking possession of property.
15. In above aforesaid background, it can be observed that
agreement to sell is neither registered nor sufficiently stamped. It is
executed on Rs. 100/- bond paper and notarized. It stipulates delivery of
possession of suit property in favour of plaintiff.
16. In this background, Section 35 of Indian Stamp Act would
come into play which mandates that :-
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"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."
17. The Hon'ble Supreme Court of India in case of Avinash
Kumar Chauhan Vs. Vijay Krishna Mishra reported in 2009 AIR SCW
97, observed that where possession of property has been transferred under
any instrument, in absence of payment of stamp duty, such instrument
cannot be admitted even for collateral purpose or to corroborate oral
evidence. There is total and absolute bar as to admission of unstamped
instrument, unless there is compliance with requirements of provisos to
Section 35.
18. In this background, if unstamped instrument is admitted even
for collateral purpose, it would amount to receiving such document in
evidence for a purpose which is prohibited under Section 35 of Stamp Act.
The bar against admissibility of instrument which is chargeable with stamp
duty and is not stamped is of course absolute whatever be the nature of
purpose, be it for main or collateral purpose, unless requirements of proviso
(A) to Section 35 are complied with.
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19. The similar issue was considered by High Court of Karnataka
in case of Smt. Dyavamma Alias Sanna Mukkamma Vs. Smt. Balamma
and Others reported in ILR 2010 KAR 3280, that instruments which are not
duly stamped are not only inadmissible in evidence, but the Court cannot act
upon it, or consider the same for any relief like temporary injunction till
such time both duty and penalty are paid. In case of Yellapu Uma
Maheswari & Another Vs. Buddha Jagadheeswararao & Others reported
in (2015) 16 SCC 787, the Hon'ble Supreme Court observed that if party
wanted to rely upon document for collateral purpose, it was upon for him to
pay stamp duty together with penalty and get document impounded.
20. Looking to the scheme under the provisions of Stamp Act and
law espouses in aforesaid judgments, it is apparent that so-called document
of agreement to sell could not have been considered for any purpose for
accepting plaintiff' case.
21. However, in facts of the present case when defendant has not
denied execution of document, so also receipt of part of consideration
amount, fact of existence of agreement to sell between the parties can be
accepted. However, defendant has empathetically denied delivery of
possession of suit property to plaintiff. If contents of agreement to sell are
ignored for want of its admissibility, there is nothing on record to depict that
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plaintiff has received possession of suit property and even exact nature of
transaction cannot be ascertained at this stage. The Courts below have relied
upon contents of isar-pavti and held that plaintiff is in possession of suit
property. The Courts have erroneously observed that prima facie value of
document could be adjusted at the time of granting interim injunction;
however, such observations are not in tune with legal position. In that view
of the matter, impugned order deserves to be modified.
22. In result, writ petition is partly allowed. The impugned
judgment and order dated 21.09.2022 passed by learned Joint Civil Judge
Senior Division, Beed below Exhibit-5 in Special Suit no.93 of 2022 which
is confirmed by learned District Judge, Beed vide order dated 10.05.2023 in
Misc. Civil Appeal No.91 of 2022 is hereby modified. Respondent
(defendant) or anybody on his behalf is hereby temporarily restrained from
alienating suit property by any mode of transaction. However, order of
temporary injunction passed against defendant to not to disturb possession
of plaintiff over suit property is hereby quashed and set aside.
23. Rule made absolute in aforesaid terms.
[ S. G. CHAPALGAONKAR, J. ]
HRJadhav
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