PAWAN KUMAR GUPTA Vs. MOHAMMAD SHAKIR

JUDGEMENT

(1.) Heard learned counsel for the petitioners. Sri R.K. Pandey. learned counsel appearing for contesting respondent No. 2 and learned Standing Counsel.

(2.) Challenge in this petition has been made to the order dated 7-9-2004 passed by Civil Judge (Senior Division), Ghaziaba'd impounding the document/letter of possession produced by the petitioners in evidence.

(3.) Facts are that respondent No. 1 entered into an agreement for sale of the property in question in favour of the petitioners for a consideration of Rs. 12,85,000/-. A registered agreement to sell was executed on 21-6-2003 under the terms of which respondent No. 1 received a sum of Rs. 1,85,000/- as part payment. A sum of Rs. 51,500/- was paid as stamp duty. It was agreed between the parties that the balance amount of sale consideration would be paid at the time of execution of sale deed and the possession of the property in question shall also be delivered at that time. Subsequently, respondent No. 1 after receiving a sum of Rs. 2,00,000/- out of balance sale consideration, delivered the possession of the property in question in favour of the petitioners. The fact of delivery of possession in part performance of the agreement to sell as well as receipt of a sum of Rs. 2,00,000/ towards balance sale consideration was acknowledged by executing a letter of possession before Notary public dated 26-8-2003. The said document was executed on a non-judicial stamp worth Rs. 100/-. However, respondent No.1 instead of executing sale deed in favour of the petitioners in performance of the agreement to sell between them, executed sale deed of the property in question in favour of respondent No. 2. Petitioners filed a suit for specific performance of contract and prohibitory injunction which was registered as original suit No. 706 of 2004. In the said suit, petitioners filed the document namely, letter of possession, in evidence. Respondent No. 2 moved an application to impound the same on the allegation that the aforesaid letter of possession is chargeable as a conveyance in view of Article 23 of Schedule ] B of the Indian Stamp Act as applicable in the State of U.P. and the deed being insufficiently stamped is liable to be impounded. The application was contested by the petitioners. The Court below holding that the document is chargeable as a conveyance as provided by Article 23 of Schedule 1B of the Act and was insufficiently stamped directed to impound the same and referred it to the Collector, Ghaziabad for realization of the proper stamp duty. Aggrieved by the same, the petitioners have approached this Court.