The Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963

   Specific performance  of agreement – Contract of sale of suit premises – Allotment letter issued upon consideration received – Defendants submits, letter not constitute agreement – Plaintiff sued within 3 years after denied – Held, suit is not barred by law of limitation, under MOFA Act. Defendants are liable to be prosecuted for breaches and defaults of statutory provision under MOFA. Defendant shall deposit in Court Rs.1.5 crore. Plaintiff to return original documents. Suit is adjourned for considering plaintiffs oral and further documentary evidence. Sushil Javher Shivdasani v/s Air Inn Pvt. Ltd. 2009(2) Bom.C.R.608
   Agreement/Conveyance—Distinction—Agreement for sale not providing for when conveyance will be executed, though possession is handed over on execution of agreement—Agreement when presented for registration Registrar impounding it on ground that full stamp duty for conveyance as required to be paid under Explanation to Entry 25 of Schedule I of the Stamp Act — Held, where agreement does not provided for when conveyance will be done and possession is handed over, case is covered by Explanation to Entry 25 of the Schedule I and High Court view that it is to be termed as conveyance and duty is payable cannot be faulted.
   The High Court in 1992(2) Bom.C.R. 1 examined the scope of Explanation I to Entry 25 of Schedule I of the Bombay Stamp Act and held that the same was attracted to the case. Under the agreement there is an obligation to hand over the possession even before execution of a conveyance and, therefore, it was a “conveyance” for the purpose of duty payable under the Bombay Stamp Act and there was no obligation in the agreement to enter into a conveyance at a letter stage and clearly it was a case which attracted the said Explanation. Handing over of the possession on the very date of execution was not relevant for determining the nature of the document. On that basis the High Court upheld the stand taken by the State in the matter of levy of duty. 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 if there is an agreement to sell immoveable 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 demand to a conveyance shall be adjusted towards the total duty leviable on the conveyance. In the present case, the agreement entered into clearly provides for sale of an immoveable 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 the Explanation I. If the agreement provides that possession will be handed over on the execution of a conveyance as contemplated under section 11 of the MOF Act, then the Explanation shall not be attracted at all. In the present case, it is clear that in the terms of the agreement there is no provision made at all for execution of the conveyance. On the other hand, what is submitted is that the provisions of the MOF Act, could be applied to the agreement and, therefore, a conveyance is to be executed and the subsequently when it is not clear as to when the conveyance is to be handed over. If that is so, it is clear that the document would attract duty as if it is a conveyance as provided in the Explanation. There is no error in the view taken by the High Court. It is not necessary to examine in these appeals as to whether the instruments in question itself conveys a title or not. Therefore, the decision of High Court made in this regards is upheld. The appeals are dismissed. 1992(2) Bom.C.R. 124; 1999 (1) All.M.R. 698; 1999 (1) Bom.L.R.235

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