This matter stands listed today for admission. The submissions made by Mr.R.Gururaj, learned counsel for the petitioner are heard. Certified copy of the impugned order and copies of the other documents produced in the form of typed set of papers are also perused.

2. The plaintiff in O.S.No.159 of 2015 pending on the file of the Court of Principal District Munsif, Cuddalore is the petitioner herein. The defendants are the respondents herein. The petitioner in the revision/plaintiff in the above said suit filed the suit for specific performance of an agreement for sale alleged to have been incorporated in an unregistered sale deed dated 02.06.2015. The said unregistered sale deed was produced along with the plaint as the document, based on which the suit came to be filed. The learned trial Judge found the said document to be not only unregistered, but also insufficiently stamped. Hence the learned trial Judge, after hearing the submissions made on behalf of the plaintiff, passed an order on 29.10.2015, impounded the said document for the collection of the stamp duty to make good the deficiency and ten times of the same as penalty.

3. The learned counsel for the petitioner herein/plaintiff in the original suit seems to have contended before the court below that since the document was sought to be used only as an evidence to prove the agreement, specific enforcement of which has been sought for in the suit, the document would not attract stamp duty or penalty. It was also his contention before the court below that it was the normal practice of the parties to prepare a document meant for registration on nominal stamp papers and pay the balance stamp duty at the time of presentation for its registration; that the suit document was one such document and that since the prayer sought for in the suit was to specifically enforce the contract (agreement for sale), it would result in the production of the document before the Registering Authority for registration and at that point of time, deficit stamp duty would be paid. Rejecting the said contention, the learned trial Judge passed an order as invited by the counsel for the plaintiff and the same is sought to be impugned in the present revision.

4. Before this court also, Mr. R.Gururaj, learned counsel for the revision petitioner would submit that the unregistered sale deed, though not admissible for establishing any title derived under the same as per Section 49 of the Registration Act, the proviso permits the revision petitioner/plaintiff to use the document as a piece of evidence to prove an agreement in a suit for specific performance; that hence, if at all the document attracts any stamp duty to be received in evidence, the stamp duty payable shall be one payable on an agreement for sale; that since the document has been prepared in stamp papers to the tune of Rs.170/-, which is more than the stamp duty payable on an agreement for sale, there is no deficiency in payment of stamp duty and that hence it will not attract any stamp duty penalty.

5. The above said contention of the learned counsel for the petitioner is far from being tenable. Though the proviso to Section 49 of the Registration Act permits the plaintiff in a suit for specific performance to use an unregistered document as evidence of agreement for sale, the same does not mean that the unregistered sale deed will assume the character of an agreement for sale to attract lesser stamp duty. What the proviso to Section 49 of the Registration Act permits is use of an unregistered sale deed as evidence of an agreement, which is sought to be specifically enforced and it does not deal with the payment or collection of stamp duty. In order to ascertain the stamp duty payable, one has to look at the provisions of the Indian Stamp Act, 1899. Section 35 of the Indian Stamp Act, 1899 makes an instrument not duly stamped inadmissible in evidence. It says that no instrument chargeable with duty shall be admitted in evidence for any p