1. Heard.

2. Challenge in this petition under Article 227 of the Constitution is made to order Annexure P-l dated 14.1.2005 passed by First Additional District Judge, Guna in Civil Suit No. 42-A/04 whereby petitioner is directed to pay stamp duty and penalty on the document for the purpose of taking it on record and admitted it in evidence.

3. Facts in brief necessary for disposal of this petition are that petitioner had filed a suit for specific performance of agreement to sale dated 29.12.2002 Annexure P-2. The written statement was filed and respondent defendant denied the execution of the agreement and contended that agreement dated 29.12.2002 is a forged and fabricated document, it is not signed by defendant/respondent. During the pendency of the proceedings, an application under Order 13 Rule 3 of the CPC was filed and agreement dated 29.12.2002 was produced. An objection was raised with regard to improper stamping of the said document. The said document was executed after payment of only Rs. 50/- as stamp duty. It was stated by the respondent that under Article 23 of the Schedule 1 (A) of the Indian Stamp Act the stamp duty is to be paid as the document conveyance possession of the property in question. Holding that document in question does transfer possession of the property, learned Court below has directed the petitioner to pay stamp duty as contemplated under Scheduled 1 (A), Items No. 23 which is applicable in the State of M.P., duty is assessed at Rs. 75,000/and petitioner was also directed to pay ten times penalty on the said document. Challenging the aforesaid finding petitioner has filed this petition.

4. Shri N.K. Gupta, learned counsel for the petitioner took me through the document in question Annexure P-3 and tried to emphasise that it is only an agreement for sale and as there is no transfer of possession, learned Court below has committed grave error in directing for payment of stamp duty on the document in question thereafter it was argued by him that learned Court had directed for realization of the duty amounting to Rs. 74,950/- and ten times penalty and has not proceeded in the matter in accordance with principle laid down in the case of Satyanarayan v. Ramsingh [2007 (III) MPWN 11 = 2007 (3) MPLJ 384], it is argued by him that learned Court cannot impose its decision on the petitioner but should have given the option of referring the matter for adjudication by the Collector of Stamp. Accordingly, he submits that the order passed is unsustainable and liable to be quashed.

5. Shri A.V. Bharadwaj, learned counsel for the respondent refuted the aforesaid and submits that by virtue of amendment applicable in the State of M.P. as per the Item No.5 of Schedule 1 (A) Clause (i) thereof, when possession of the property is delivered or is agreed to be delivered without executing the conveyance then stamp duty as per the market value has to be paid and in doing so learned Court has not committed any error, therefore, he prays for dismissal of this petition.

6. I have heard learned counsel for parties and perused the record. Items No.5 of Schedule 1 (A) of the Indian Stamp Act, 1899 pertains to agreement or memorandum of an agreement. Clause (e) of the said Items reads as under:

"(e) If relating to sale of immovable property:

(i) When possession of the property is delivered or is agreed to be delivered without executing the conveyance;

The same duty as a conveyance (No. 22) on the market value of the property.

(ii) When possession of the property is not given;

One percent of the total consideration of the property set forth in the agreement or memorandum of agreement.

From the aforesaid provisions, it is clear that by an agreement, if possession of the property is delivered or is agreed to be delivered without executing the conveyance the stamp duty as a conveyance under serial No. 22 on the market value of the property is to be paid and when possession of t