JUDGMENT : Tarun Kumar Gupta, J. This is an application under Article 227 of the Constitution of India directed against order dated 15th of December, 2010 passed by learned Civil Judge (Senior Division) Ranaghat, Nadia in Title Suit No.110 of 2008. 2. The O. P. No.1 plaintiff filed a suit for specific performance of contract and for other consequential reliefs against the present petitioners as defendants and O. P. No.2 bank as proforma defendant. According to the O. P. No.1 plaintiff this petitioner defendants executed an agreement of sale dated 25th of August, 2004 relating to the suit property and that O. P. plaintiff was all along ready to perform his part of contract. He accordingly prayed for a decree for specific performance of contract by way of executing a sale deed on receipt of balance consideration money. During evidence O. P. plaintiff produced the Binanama dated 25th August, 2004 for making it as an exhibit. The present petitioner defendants filed an application under Section 33 of the Indian Stamp Act praying for impounding said agreement for sale as per law as it was executed only on a stamp paper of Rs. 50/- and not on a stamp paper as prescribed in the law. The O. P. plaintiff filed a written objection. After contested hearing learned trial court rejected said petition under Section 33 of the Indian Stamp Act by the order impugned dated 15th of December, 2010. Hence is this revisional application. 3. Mr. Sushanta Kumar Kundu, learned advocate appearing for the petitioner defendants, submits that in terms of Section 3 of the Indian Stamp Act, 1899 read with entry 5(d) and entry No.23 of Schedule 1 A relating to "stamp duty on instruments in West Bengal" it is clear that an agreement for sale should be executed on stamp papers which is required for conveyance. He submits that as per agreement of sale the value of the property was Rs. lakhs. According to him, the stamp duty required in terms of entry 23 of Schedule 1 A was 5 percentum of the market value as the property was not situated in the areas to which Calcutta Improvement Act, 1911 or the Howrah Improvement Act, 1956 extends. lakhs. According to him, the stamp duty required in terms of entry 23 of Schedule 1 A was 5 percentum of the market value as the property was not situated in the areas to which Calcutta Improvement Act, 1911 or the Howrah Improvement Act, 1956 extends. He submits that as said instrument was not duly stamped, the same was not admissible in evidence under Section 35 of said Stamp Act so long it is not impounded as per provisions of Section 33 of the Stamp Act. He submits that it was immaterial whether O.P. plaintiff in part performance of the contract delivered possession of the same to the petitioner defendant or not, for the purpose of deciding whether said insufficiently stamp agreement should be impounded or not. According to him, learned trial court by applying wrong test rejected said petition under Section 33 of the Stamp Act and that the order impugned is not sustainable in law. In support of his contention he has referred case laws reported in (2009) 2 SCC 532 (Avinash Kumar Chauhan v. Vijay Krishna Mishra) and (2011) 4 WBLR (Cal) 463 (Prasad Maity v. Krishnapada Mondal). 4. Mr. Sourav Mukherjee appearing for O.P. plaintiff, on the other hand, submits that as said agreement for sale of the immovable property neither created nor extinguished any interest, it did not require to be drawn on stamp paper as required for execution of a sale deed. He further submits that as no possession was also delivered by O. P. plaintiff in favour of petitioner defendants on the strength of said Binanama, there was no question of applying Section 53 A of the transfer of property Act, 1882. He also submits that the document creating no interest in any immovable suit property, is not required to be executed on a stamp paper and that there is no question of impounding said document on the alleged ground of execution of the same on insufficient stamp papers. In support of his contention he refers case laws reported in 2002 (1) SCC 656 (Suraj Lamp and Industries Private Limited v. State of Haryana and another), AIR 2008 Andra Pradesh 161 (Dhumthi Ekambareswarappa v. T. Shambulingappa and Anr.),AIR 2010 Rajasthan 152 (Sardar Kamaljit Singh v. Suresh Chand) and AIR 2001 Andra Pradesh 142 (Dadi Reddy Sivanarayana Reddy v. Kasi Reddy Chinnamma). 5. 5. The points in issue in this matter are as follows:- (1) Whether the agreement of sale i.e, Binanama dated 25th of August, 2004 was an instrument chargeable with duty under Section 3 of the Indian Stamp Act, 1899 in its application to West Bengal. (2) Whether it was insufficiently stamped in view of Schedule 1 A Article 5 (d) read with Article 23. (3) Whether said instrument if found to be insufficiently stamp can be admitted into evidence without being impounded. 6. Section 3 of the Act of 1899 described the instruments chargeable with duty. For application of said Section 3 in West Bengal, one has to refer to Schedule 1 A being stamp duty on instruments in West Bengal. In terms of Article 5 (d) of said Schedule 1 A a memorandum of an agreement if relating to sale or lease - cum- sale of immovable property the proper stamp duty was prescribed as the stamp duty as a conveyance as shown in Article 23 of said Schedule for market value. 7. The explanation appended thereunder runs as follows:- The expression "Agreement or Memorandum of an Agreement", if relating to a sale, shall include an agreement to sell or any memorandum or acknowledgement in relation to transfer or deliver of possession of immovable property with an intent to transfer right, interest in, or title to, such property at any future date. Exemptions: Agreement or Memorandum of Agreement - (a) for or relating to the sale of goods or merchandise exclusively, not being a Note or Memorandum chargeable under No.43; (b) made in the form of tenders to the Government of India for, or relating to, any loan. 8. On plain reading of said explanation with the exemptions noted therein it is palpable that the expression "agreement or memorandum of agreement" if relating to sale shall not only include an agreement to sale but also include any memorandum or acknowledgement in relation to transfer or delivery of possession of immovable property with intent to transfer right, interest in, or title to, such property at any future date with the exemptions mentioned thereunder. Admittedly, those exemptions are not attracted here. As such, it is clear that agreement or memorandum of an agreement appearing in Article 5 if relating to sale of immovable property, should be executed on stamp papers as required for an agreement of sale of said property. 9. Admittedly, those exemptions are not attracted here. As such, it is clear that agreement or memorandum of an agreement appearing in Article 5 if relating to sale of immovable property, should be executed on stamp papers as required for an agreement of sale of said property. 9. So it is clear that in an agreement for sale of an immovable property the stamp duty as required for a conveyance appearing in Article 23 of said schedule was applicable. 10. In terms of Section 35 of the Act 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 [emphasis added]. However, said instrument can be admitted into evidence only after the impounding of the same in terms of Section 33 of the Act read with Section 35 of the Act. 11. The term 'instrument' was defined under Section 2 (14) of the Act. It was stated instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded; [emphasis added). Admittedly on the strength of the agreement of sale the right of having a sale deed to be executed as per law was purported to be created in favour of the O. P. plaintiff and accordingly a liability on that score was purported to be created against the petitioner defendants. As such, said agreement of sale was an instrument within the meaning of Section 2 (14) of the Act. As per said instrument the value of the suit property was shown to be Rs. 12 lakhs. Admittedly, it was not executed on requisite stamp paper in terms of Article 5 read with Article 23 of the Schedule 1A of stamp duty on instruments in West Bengal. 12. As the O. P. plaintiff wanted to admit said document (agreement of sale) into evidence it was required to be impounded as per Section 33 read with Section 35 of the Stamp Act. 13. 12. As the O. P. plaintiff wanted to admit said document (agreement of sale) into evidence it was required to be impounded as per Section 33 read with Section 35 of the Stamp Act. 13. In the case of Avinash Kumar Chauhan (supra) the Hon'ble Apex Court held that when a sale agreement produced was found to be insufficiently stamped then the Court before admitting document/instrument was empowered to direct payment of unpaid duty and penalty under Sections 33, 35 and 36 of the Stamp Act, 1899. 14. Relying on said case law of Avinash Kumar Chauhan our High Court in the case of Prasad Maity (supra) reiterated that an agreement for sale creating a right in favour of one while a liability in favour of another is an instrument and that such an instrument being a conveyance shall be chargeable with stamp duty as prescribed in entry 23 of schedule 1 A of stamp duty on instruments in West Bengal and that such a document should be impounded before admitting it into evidence, even in a money suit. 15. Unfortunately, the case laws as referred by learned counsels of the O. P. plaintiff are of no help to the O. P. plaintiff as none of said case laws relate to the fate of an instrument being under stamped, when it is tried to be admitted into evidence. Those case laws relate to the effect of non-registration of an agreement of sale, effect of such document in a case under Section 9 of the Specific Relief Act. 16. The case of Dhumthi Ekambareswarappa relates to Article 47 A of Schedule 1 A of Andhra Pradesh relating to Stamp Act of 1899. As such, said case law has no application relating to schedule 1A of West Bengal relating to Stamp Act. 17. Accordingly, I find and hold that the order impugned is not sustainable in law as learned trial court failed to exercise jurisdiction so vested in him by law. 18. The revisional application is allowed on contest. The order impugned is hereby set aside. Learned trial court is hereby directed to take necessary steps for impounding the document under Section 33 of the Stamp Act as per law if O. P. plaintiff insists for admitting said document into evidence for any purpose whatsoever. No costs. 18. The revisional application is allowed on contest. The order impugned is hereby set aside. Learned trial court is hereby directed to take necessary steps for impounding the document under Section 33 of the Stamp Act as per law if O. P. plaintiff insists for admitting said document into evidence for any purpose whatsoever. No costs. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.