IN THE COURT OF MAHAVIR SINGH, ADDITIONAL

DISTRICT JUDGE-CUM-PRESIDING JUDGE, EXCLUSIVE

COMMERCIAL COURT AT GURUGRAM EXERCISING
JURISDICTION UNDER THE COMMERCIAL COURTS ACT,
2015 (UID [Link]-0141)
…..…

CNR No. HRGR01-018869-2023

CIS No. CS-121-2023

Civil Suit no. : 94

Date of Institution : 17.11.2023
Date of order : 12.04.2024

Advance India Projects Ltd. Versus M/s Ireo Residences Company

Pvt. Ltd. & Others

Application under section 33 read with section 35 of the Indian

Stamp Act, 1899

Argued by: S/Shri Harshwardhan Goyal and S.K. Goyal, Advocates

for applicant/plaintiff.
Shri M.K. Dang, Advocate for defendants no.1 to 11.
Shri Ashish Chopra, Senior Advocate with Ms. Apoorva
Kaushik, Advocate, Shri Harsh Bhardwaj, Advocate and
Shri Uday Mathur, Advocate for respondent/defendant
no.12.

Order :

This order will dispose of an application under section 33

read with section 35 of the Indian Stamp Act 1899 (hereinafter to be

referred as the ‘Act’) moved on behalf of the applicant/plaintiff

(hereinafter to be referred as the “applicant” only)

2. It is mentioned in the application that in the present case,

an application for impleadment had been filed by Oberoi Realty Ltd.,

relying on two documents executed on stamp paper that reflect

payment of stamp duty to the State of Haryana. The said Oberoi

Realty Ltd. had invited this court to act upon those documents and

deny relief to the applicant, by asserting that possession of the subject

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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parcel of land has already been delivered to it and rights in terms of

Section 53-A of the Transfer of Property Act, 1882 already stood

implicated, inter alia. While applicant reserves its rights in respect of

the assertions made by Oberoi Realty Ltd. and the provisions made in

these two instruments both dated 17.11.2023, which it denies and

disputes in entirety. These documents fall within the ambit of section

2(14) of the Act which is defined in inclusive terms and includes every

document by which any right or liability is, or purports to be, created,

transferred, limited, extended, extinguished or recorded. Learned

counsel for the applicant has relied upon law as laid down in V.V.S.

Rama Sharma Versus State of Uttar Pradesh, (2009) 7 SCC 234 ,

wherein Hon’ble Supreme Court has held that while the power to levy

stamp duty on all instruments may be concurrent, the power to

prescribe the rate of such levy is divided between Parliament and the

State Legislatures, under Entry 44 of List III to the Seventh Schedule

of the Constitution of India. Further, except those instruments which

fall under the categories mentioned in Entry 91 of List I to the Seventh

Schedule, for all other instruments/documents, "... the power to

prescribe the rate belongs to the State Legislatures under Entry 63 of

List II…" The State of Haryana has amended the Indian Stamp Act,

1899 and has inserted Article 23-A in Schedule I thereto whereby 90%

of the duty as a conveyance is payable as stamp duty in the present

case. Further, in view of the fact that two instruments have been

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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produced by Oberoi Realty Ltd., it is submitted that Section 4 of the

Act is squarely attracted in the facts and circumstances of the present

case and these documents would fall within the rubric of "conveyance"

for the purposes of Section 2(10) of the Act, as applicable to the State

of Haryana and in this backdrop, proceeding on the basis of the

recitals made in these instruments as well as the assertions made by

Oberoi Realty Ltd. in its application, these documents are not

adequately stamped. So these cannot be acted upon, much less be

relied upon in the instant proceedings to the prejudice of the applicant,

until the deficit stamp duty as well as penalty thereof has been assessed

in accordance with law and recovered and these two documents may

be impounded forthwith and sent to the jurisdictional authority having

jurisdiction under the statute to assess and determine the requisite

stamp duty and penalty. So, it has been prayed that two documents

produced by Oberoi Realty Ltd. before this court both dated

17.11.2023 be impounded forthwith and thereafter sent for assessment

and adjudication of stamp duty and ten times duty as penalty

thereupon, to the jurisdictional Collector, and until then not be taken

cognizance of, or acted upon, by this court.

3. The application is opposed by the respondent/defendant

no.12 (hereinafter to be referred as the “respondent” only), by filing

reply to the same in which it is submitted that the aforesaid application

was moved on 6th December 2023 and by its order of even date, this

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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court has directed filing of this present affidavit in reply by 11 th

December, 2023. The respondent denies all the contents, allegations,

statements, averments and submissions made by the applicant in the

said application which are contrary to and inconsistent with what has

been set out herein below and nothing contained in the said application

should be deemed to be admitted for reason of non-traverse or

otherwise. The said application proceeds on a fundamentally erroneous

basis that the registered agreement for sale dated 17 th November 2023

executed in favour of respondent by defendant nos.1-11 ( hereinafter to

be referred as "said Agreement for Sale") and the Possession Letter

dated 17th November 2023 executed in favour of respondent by

Defendant nos.1-11 (hereinafter to be referred as “Possession Letter”)

constitute a 'conveyance' under Section 2(10) of the Act as applicable

to the State of Haryana. The said application also proceeds on the

incorrect premise that the said agreement for sale and Possession

Letter are exigible to stamp duty under Article 23-A of Schedule I to

the Act as applicable to the State of Haryana. The respondent's

contentions are incorrect and without any substance . The State of

Haryana has adopted the Indian Stamp Act, 1899 with Schedule I-A in

place and instead of Schedule I. The instruments executed in the State

of Haryana are exigible to stamp duty as per the relevant articles and

rates prescribed in Schedule I-A to the Indian Stamp Act as applicable

to the State of Haryana and not as per Schedule I. Any instrument

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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reflected in Schedule I is compulsorily required to be stamped at the

rates prescribed in Schedule I-A to the Indian Stamp Act as applicable

to the State of Haryana and not as per Schedule 1. This is the remit of

the proviso to Section 3 of the Indian Stamp Act as applicable to the

State of Haryana.

4. The proviso to Section 3 of the Act as applicable to the

State of Haryana was added by Punjab Act no. VIII of 1922 dated 15 th

January 1923. At that time, the State of Haryana formed part of the

State of Punjab and it was by virtue of the Punjab Re-organisation Act,

1966, that the State of Haryana was carved out as a separate

independent state from the State of Punjab. Thus, all references to

'Punjab' in the proviso to section 3 of the Act as applicable to the State

of Haryana, include the State of Haryana. In Schedule I-A to the Indian

Stamp Act as applicable to the State of Haryana, Article 23A which is

reproduced as below:-

"23A. Conveyance, so far as it relates to reconstruction or

amalgamation or merger / demerger of companies by an order of
the High Court under section 394 of the Companies Act, 1956
(Central Act 1 of 1956) or reconstruction or amalgamation or
merger / demerger of companies under sections 232 and 233 of
the Companies Act, 2013 (Central Act 18 of 2013) by the
Tribunal."

5. Therefore, it is clear that the foundational premise of the

said application, namely, that the said Agreement for Sale and

Possession Letter are chargeable with stamp duty under Article 23A of

Schedule I (instead of Schedule I-A to the Indian Stamp Act as

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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applicable to the State of Haryana) is erroneous, incorrect and

thoroughly misconceived. The said Agreement for Sale is an agreement

for sale of immovable property and is not a conveyance either under

the Transfer of Property Act, 1882 or the Indian Stamp Act. The

definition of conveyance under Section 2(10) of the Act is a

conveyance on sale and on every instrument by which movable or

immovable property is transferred inter-vivos.

6. The said agreement for sale and the possession letter are

thus incapable of classification as a 'conveyance' for the purpose of

Article 23 of Schedule I-A to the Act as applicable to the State of

Haryana. As already mentioned, 'Schedule I' that is referred to and

relied upon by the applicant is inapplicable to the agreement for sale

and possession letter. The said agreement for sale has been correctly

and properly stamped at ₹100/- in accordance with Article 5(c) of

Schedule I-A of the Act as applicable to the State of Haryana. The

possession letter does not require to be stamped under the Indian

Stamp Act as applicable to the State of Haryana for the two-fold

reason, viz. (a) there is no Article in the Indian Stamp Act as applicable

to the State of Haryana that requires payment of stamp duty on a

possession letter, and (b) the possession letter merely records that

possession has been delivered to the respondent. Be that as it may and

out of abundant caution, respondent has in any event paid stamp duty

of ₹100/- on the possession letter and the possession letter is thus duly

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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stamped. It is settled law that an agreement for sale on the one hand

and a conveyance/sale deed on the other hand, are distinct to each

other and are not interchangeable. It is equally settled that an

agreement for sale for immovable property, irrespective of whether

possession of the immovable property is delivered to the purchaser at

the time of the agreement for sale or even thereafter at any time, is not

a conveyance. The said agreement for sale and possession letter cannot

be construed or interpreted as a conveyance/sale deed under law or for

the purpose of levy of stamp duty under the Act as applicable to the

State of Haryana. Article 23-A of Schedule I is inapplicable since the

said agreement for sale does not record or effect delivery of possession

of the immovable property thereunder and in the entire agreement for

sale, there is not a word of possession of the immovable property being

delivered to respondent. Insofar as the possession letter is concerned,

the same merely records the delivery of possession of the immovable

property to respondent has taken place and the possession letter by

itself does not create any right, title or interest in any immovable

property. Therefore, it is evident that the said agreement for sale and

possession letter are different and distinct instruments and neither of

them come within the ambit of Section 53-A of the Transfer of

Property Act, 1882 for the purpose of Article 23-A of Schedule I. The

immovable property that is subject matter of the said agreement for

sale is licensed land that is duly licensed for group housing purpose by

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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the Department of Town and Country Planning. Haryana ("DTCP").

The respondent was informed by defendants no.1 to 11 that the

immovable property that was licensed for group housing could be sold

only after taking prior permission of the DTCP. For this reason, the

single transaction of sale/conveyance of the immovable property is

agreed to be undertaken by execution of the agreement for sale and

after obtainment of sale permission from DTCP, by execution of the

sale deed. Upon obtaining the sale permission from DTCP, defendants

no.1 to 11 are obligated to convey and sell the immovable property

vide the sale deed in the format annexed to the agreement for sale. It is

denied that there is any deficiency in the stamp duty paid by

respondent or that the said agreement for sale and possession letter are

liable to be impounded. All other averments as pleaded in the

application were denied and it is prayed that the application be

dismissed.

7. Thereafter rejoinder to the reply filed on behalf of

respondent/defendant no.12 to the application dated 06.12.2023 moved

by applicant/plaintiff was filed wherein it has been submitted that the

stand taken by respondent/defendant no.12 in its reply is fatal to its

case as it has been pleaded that Schedule I of the Act is not applicable

to the State of Haryana and instead Schedule IA is applicable and

agreement to sell is chargeable to stamp duty under Article 5(c) of

Schedule IA and not Article 23A of Schedule I and the same has been

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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rightly stamped. However, on perusal of the agreement dated

17.11.2023 relied upon by defendant no.12 as well as its recitals,

Article 5(d) under Schedule IA is attracted as the same gives authority

and power to defendant no.12 for construction on the land as well as

development over the land which is subject matter of the said

agreement and so the relevant provision is Article 5 (d) of Schedule IA

which is applicable and not Article 5(c) of said Schedule. The said

instrument also contemplate creation of a mortgage by deposit of title

deeds and so in totality of circumstances Article 5(d) of Schedule IA of

the Act is applicable and it is a fit case for imposing a penalty by the

statutory authorities and so the application moved by the applicant

deserves to be allowed.

8. In response to this rejoinder, sur-rejoinder was filed on

behalf of respondent/defendant no.12 in which averments made in the

rejoinder have been controverted being incorrect stating that the

plaintiff has changed its stance in the rejoinder which cannot be

allowed by this court as original pleadings of the parties are to be seen

and no additional plea can be taken in the rejoinder and one cannot

claim relief or argue beyond what has been pleaded by a party in the

original pleadings. The agreement for sale relied upon by the

respondent/ defendant no.12 has been correctly stamped under Article

5(c) of Schedule IA of the Act and Article 5(d) of the Schedule IA is

not applicable as claimed by the applicant/plaintiff and the same has

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
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been wrongly interpreted by the plaintiff. Even otherwise, Section 33

and 35 of the Act are in applicable to the copies of the

instruments/documents as per settled legal position. The company area

as referred to in the agreement to sell relied upon by the

respondent/defendant no.12 is one of the considerations payable under

clause 4 of the agreement for sale and so there is no requirement for

assessing its value at this stage. An agreement to sell does not fall

under the definition of conveyance under Article 2(10) of the Act or

Article 23A of Schedule IA of the Act as applicable to State of

Haryana. Further, the applicant/plaintiff is also trying to mislead the

court by alleging that agreement for sale has contemplated creation of

a mortgage by deposit of a title deed. Accordingly, it has been prayed

that averments made in the original application and rejoinder filed by

the applicant/plaintiff are devoid of merits and thus, the same are liable

to be dismissed with costs.

9. I have heard learned counsel for the parties and gone

through the case file carefully.

10. Learned counsel for the applicant/plaintiff has argued that

the respondent/defendant no.12 has got it impleaded as party to the suit

on the basis of document executed on the same day on which the suit

was filed claiming it to be an agreement to sell and a separate

document has been executed claiming it to be a letter regarding

handing over of possession. However, both these documents are

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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inadequately stamped as Section 5 of the Act required the aggregate

stamp to be deposited and both these documents are actually a

camouflage and design to avoid stamp duty in respect of several

distinct matters by changing the nomenclature of the documents.

Where any instrument is in respect of several distinct matters then the

aggregate stamp duty on each of the distinct matters has to be

deposited. Even though the first instrument is claimed to be agreement

to sell but in it there is mentioning of so many acts which

independently are liable to affixation of stamp duty as the purchaser

i.e. defendant no.12 has been granted permission to develop the project

on the project land in the manner deemed fit and it has also been given

free, exclusive, uninterpreted right, title and interest in the project land.

As per the provisions of the Act, the stamp duty has to be deposited at

the time of execution of instrument. Learned counsel has further

argued that initially prayer was made for impounding the documents

and then send them to the Collector for adjudication of the stamp duty

but since only copy of the original documents has been placed on file

so at this stage the applicant/plaintiff does not press for this relief but

he has pressed for second limb of Section 35 of the Act that the

respondent/defendant no.12 should be restrained from acting upon

these documents without payment of requisite stamp duty.

Accordingly, learned counsel has prayed for allowing the application.

He has also placed reliance upon following citations of judgments in

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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support of his contentions:

(a) Jupudi Kesava Rao Versus Pulavarthi Venkata Subbarao

1971 (1) SCC 545

(b) Sohan Lal Nihal Chand Versus Raghu Nath Singh &
others, AIR 1934 Lah 606 (Lahore)

(c) Chenbasapa & Another Versus Lakshman Ramchandra ILR

(1894) 18 Bom 369

(d) Amin Chand Versus Firm Madho Ram Banwari Lal, ILR
(1955) 1 P & H 699

(e) Chanda Singh Versus The Amritsar Banking Company etc.

(1921) ILR 2 Lah 330

(f) Perumal Chettiar Versus Kamakshi Ammal, 1938 SCC

OnLine Mad 66

(g) S. Thirumalai Versus S. Govindarajan (Died) & Ors. 2016

SCC OnLine Mad 23300

(h) Lala Uttam Chand Versus Perman Nand and Ors. AIR 1942
Lah 265

(i) The Government of Uttar Pradesh & Ors. Versus Raja

Mohammad Amir Ahmad Khan AIR 1961 SC 787

(j) District Registrar and Collector, Hyderabad and Another

Versus Canara Bank and others (2005) 1 SCC 496

(k) Ram Rattan Versus Parma Nand, 1945 SCC OnLine PC 58

(l) Avinash Kumar Chauhan Versus Vijay Krishna Mishra,

(2009) 2 SCC 532

(m) Chief Controlling Revenue Authority Versus Coastal

Gujarat Power Limited and others (2015) 10 SCC 700

(n) Revital Realty Pvt. Ltd. Versus The State of Haryana and
Ors, 2021 (2) PLR 746

(o) Green Heights Projects Ltd. Versus State of Haryana &

Ors. Law Finder Doc Id # 1770123

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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(p) Omprakash Versus Laxminarayan and others (2014) 1 SCC

618

(q) Lakdawala Developers Pvt. Ltd. Versus Badal Mittal &

others, (Bombay)(DB): Law Finder Doc Id # 1990503

(r) Nilesh Shantilal Tank & Anr. Versus Jairaj Devidas & Ors.
2014 SCC Online Bom 902

11. On the other hand, learned counsel for the respondent/

defendant no.12 has argued that the present application is

misconceived and liable to be dismissed as the prayer made in the

application could not be allowed as only copies of the documents were

tendered on the case file. Further, in the original application wrong

provision has been referred to which is not applicable and when this

fact was clarified in the reply filed, the applicant/plaintiff took a new

stand in the replication which cannot be admitted. Otherwise also,

from the reading of the instrument relied upon by the defendant no.12,

it is clear that it is not an instrument of conveyance as claimed by the

applicant/plaintiff but an agreement of sale which has been correctly

stamped under Article 5 (c) of the Schedule IA of the Act as applicable

to the State of Haryana and at this stage court cannot say whether the

documents can be acted upon or not. As per settled legal position the

same has to be considered by the court at the stage of leading evidence

to see whether the document relied upon by the party is admissible in

evidence or not but at this stage this aspect cannot be looked into. So

seeing from any angle, the present application moved by the applicant/

plaintiff is devoid of merits. Accordingly, learned counsel has prayed

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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for dismissing the application and has also placed reliance upon

following citations of judgments in support of his contentions:

a) M/s Ajanta Enerprises, Jaipur Versus Bimla Charan

Chatterjee & anr. 1987 SCC OnLine Raj 516

(b) Hariom Agrawal Versus Prakash Chand Malviya (2007) 8

SCC 514

(c) P. Nanikutty, (expired) & Anr. Versus K.U. Kalpakadevi &

Ors. 2023(4) KHC 220

(d) State of Rajasthan and Another Versus Mohammed Ikbal

and others 1988 SCC OnLine Raj 46

(e) District Registrar and Collector, Hyderabad and Another

Versus Canara Bank and Others (2005) 1 SCC 496

(f) Jupudi Kesava Rao Versus Pulavarthi Venkata Subbarao

and others 1971(1) SCC 545

(g) Suraj Lamp and Industries Private Limited Versus State of

Haryana and Another (2012) 1 SCC 656

(h) Munishamappa Versus M. Rama Reddy and Others 2023

SCC OnLine SC 1701

(i) Dilawar Singh Versus Amandeep Singh

2016:PHHC:019692

12. I have heard counsel for the parties and have gone

through the case file carefully.

13. After hearing rival contentions and after appreciation of

record of the case and after going through the citations of judgments

relied upon by learned counsel for the parties, the court is of the

considered view that the present application deserves dismissal for the

reasons given below.

14. In the original application filed by the applicant/plaintiff,

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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it has been prayed that the two documents relied upon by the defendant

no.12 dated 17.11.2023 fall within the ambit of section 2(14) of the

Indian Stamp Act and both these documents be impounded forthwith

and thereafter sent for assessment and adjudication of stamp duty and

ten times duty as penalty thereupon to the jurisdictional Collector and

until then these documents not be taken cognizance of or acted upon

by respondent. The applicant/plaintiff also filed rejoinder to the reply

filed by the respondent/defendant no.12 but no additional prayer has

been made in the rejoinder. However, during the course of arguments,

it has been admitted by learned counsel for the applicant/plaintiff that

copy of a document cannot be impounded and so the main relief

sought by the applicant/plaintiff cannot be allowed as at this stage only

copy of documents have been filed and not the original documents.

Reliance in this regard can be placed upon law as laid down by

Hon’ble Supreme Court of India in Hariom Agrawal Versus

Prakash Chand Malviya (supra). In this judgment a three Hon’ble

judges bench of Hon’ble Supreme Court of India was considering the

question whether the court can impound the photocopy of the

instrument (document) of improper description exercising power under

the Stamp Act 1899. After discussing the statutory provisions laid

down under Sections 33,35 and 2(14) of the Indian Stamp Act, Hon’ble

Supreme Court came to the conclusion that the provisions of the Indian

Stamp Act does not consider inclusion of copy of the document and

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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law is well settled that copy of the instrument cannot be validated by

impounding. Thus, as far as this relief is concerned, the same cannot be

allowed as it is the main relief sought in the present application.

15. Learned counsel for the applicant/plaintiff has argued that

the court cannot allow defendant no.12 to take benefit of these

documents, otherwise also as they have not been appropriately

stamped by affixing necessary court fee as per the provision of Section

5(d) of Schedule I attached to the Act and so in view of second limb of

Section 35 of the Act, these documents cannot be acted upon by the

defendant no.12 without affixation of proper court fees on the same

which is disputed by learned counsel for the respondent/defendant

no.12.

16. Elaborating his arguments, learned counsel for the

applicant/plaintiff has argued that the instruments dated 17.11.2023 are

inadequately stamped as the defendant no.12 has wrongly paid the

stamp duty as per Article 5(c) of Schedule IA of the Act as applicable

to State of Haryana but it did not deposit stamp duty in respect of other

distinct matters mentioned and referred to in the instrument which

have been camouflaged in agreement to sell but in fact the stamp duty

is payable on the said instrument under Article 5(d) and Article 6 under

Schedule IA of the Act itself as applicable in the State of Haryana.

Learned counsel argued that a perusal of the contents of the alleged

agreement to sell show that it is covered under Article 5(d) of Schedule

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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IA which relates to giving authority or power to a promoter or a

developer by whatsoever name called for construction on, development

or sale or transfer in any other manner whatsoever of any immovable

property. Referring to certain recitals made in the document in which it

is mentioned that the purchaser i.e. defendant no.12 shall be entitled to

develop the project on the project land in the manner it deems fit and

proper by exploiting, utilizing and consuming the project ESI ; that the

company shall ensure that the current FSI shall be available for

immediate utilization in the project after the execution of this

agreement; on and from the date of this agreement the parties confirm

that the purchaser is entitled to the full, free, exclusive, uninterpretted

right, title, interest and entitlement to develop the project land; etc. and

many other such averments made in the application. Beside this, it is

also mentioned in the same that the original title deeds shall be handed

over to the defendant no.12 on payment of consideration of ₹160

crores and that company area is part of consideration payable under

clause 4 of the said agreement to sell. So the appropriate provisions

which are applicable are Article 5(d) and 6 of Schedule I-A of the Act

as applicable to the State of Haryana and not Article 5(c) of Schedule I

of the Act. Further, learned counsel has argued that since proper stamp

duty has not been paid, defendant no.12 should be restrained from

acting upon the aforesaid instruments and it should not be given any

benefit of these documents till it pays the appropriate stamp duty

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
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applicable.

17. The argument has been strongly opposed by learned

counsel for respondent/defendant no.12 arguing that the plea was

never raised in the original application and now the applicant/plaintiff

cannot be permitted to raise such a plea. Otherwise also, wrong

provision of law which was not applicable was made the basis of

original application moved on behalf of the applicant/plaintiff and

when this objection was raised in the reply filed by the respondent/

defendant no.12, the applicant/plaintiff has filed a rejoinder taking a

new plea which is not the scope of filing a rejoinder and all these

objections have been raised in sur-rejoinder filed by the

respondent/defendant no.12 to rebut the averments made in the

rejoinder filed on behalf of applicant/plaintiff.

18. I find force in the arguments raised by learned counsel for

the respondent/defendant no.12 as the plea raised in rejoinder cannot

enhance the scope of the original relief sought in the original

pleadings/application. Once no such relief was sought in the original

application, the applicant/plaintiff could not have raised all these

points in the rejoinder and the best recourse for the applicant/plaintiff

was to withdraw the application and file a fresh application, if

necessary.

19. On considering the arguments advanced by learned

counsel for the applicant/plaintiff, it is seen that on perusal of the

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
-:19:-

agreement to sell dated 17.11.2023 which is the main document relied

upon by the respondent/defendant no.12, its contents prima-facie make

out that it is an agreement to sell and not MOU or any other

document. On the title of this instrument, it is clearly mentioned that it

is an agreement for sale which is further corroborated from various

recitals made in the said document as it is mentioned in the same that it

is an agreement for sale of the project land and the existing buildings

and needful would be done after obtaining the DTCP sale approval on

which the purchaser will pay second tranch of ₹65 crores, of monetary

consideration. Further, there is specific mention of consideration to be

paid by the purchaser to the company and the vendor of the monetary

consideration to be paid. Thus, conjoint reading of all these provisions

prima-facie show that the document executed is an agreement to sell

and not a collaboration agreement or MOU etc. which fall under the

ambit of clause 5(d) of Schedule IA of the Act as in these cases

ownership of the land is not transferred which is not the factual

position in the case in hand. Further, the principal instrument of the

transaction between the defendants i.e. the party to the agreement to

sale will be the sale deed and contention of learned counsel for the

applicant/plaintiff that the two instruments relied upon by the

respondent/defendant no.12 pertains to several distinct matters cannot

be accepted at this stage. Further, possession letter relied upon by the

respondent/defendant no.12 is also not required to be stamped as it is

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
-:20:-

not specifically referred to in the Act and otherwise also, the

respondent/defendant no.12 will have to pay stamp duty at the rate of

5% after execution of the sale deed on total consideration amount

including the company area which has to be valued at that time as

referred to in the agreement to sell.

20. In any case, the question whether the instrument has been

allegedly insufficiently stamped or not cannot be gone into at this stage

and this question will arise when the defendant no.12 leads evidence.

Learned counsel for the applicant has strongly relied upon the law as

laid down by Hon’ble Supreme Court in Jupudi Kesava Rao Versus

Pulavarthi Venkata Subbarao (supra). But on going through various

judgments referred to by both the learned counsel on this point

including subsequent judgment in Hariom Agrawal Versus Prakash

Chand Malviya (supra) in which law as laid down by Hon’ble

Supreme Court in Jupudi Kesava Rao Versus Pulavarthi Venkata

Subbarao (supra) has also been referred, the point regarding

admissibility of the document or whether it is acted or not will come at

the stage of admissibility of the document in evidence and not before

that. So this argument of learned counsel for the applicant/defendant

cannot be accepted.

21. Even otherwise, in the written arguments submitted on

behalf of applicant/plaintiff the prayer for assessment of stamp duty

has not been pressed at this stage. So on this ground also, the court is

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024
Advance India Projects Ltd. Versus M/s Ireo Residences Company Pvt. Ltd. & Others
-:21:-

not required to go into this aspect in detail at this stage.

22. No other arguments have been advanced by learned

counsel for the applicant/plaintiff.

23. In the light of discussion made above, the present

application moved by the applicant/plaintiff under Sections 33 read

with section 35 of the Indian Stamp Act 1899 stands dismissed at this

stage with no order as to costs. However, the applicant/plaintiff would

be at liberty to raise objections regarding admissibility of these

documents for being insufficiently stamped at the stage of leading

evidence by the defendants, if so advised.

Date of Order: 12.04.2024 (Mahavir Singh)

(Mukesh Kumar) Additional District Judge-
cum-Presiding Judge
Exclusive Commercial Court
at Gurugram Exercising
Jurisdiction under the
Commercial Courts Act, 2015
(UID [Link]-0141)

Note: This order contains twenty one pages and the same have been
duly checked and signed by me.

(Mahavir Singh)
Additional District Judge-
cum-Presiding Judge
Exclusive Commercial Court
at Gurugram Exercising
Jurisdiction under the
Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024

Mahavir Singh
ADJ-cum-Presiding Judge, Exclusive Commercial Court,
at Gurugram Exercising Jurisdiction under the Commercial Courts Act, 2015
(UID [Link]-0141) 12.04.2024