1967 (3) TMI 74 - HC - Companies Law

Summary

Issues Involved:
1. Admissibility of Affidavits Sworn Before a Foreign Notary Public
2. Application of Rule 16 of Chapter XV of the Original Side Rules
3. Interpretation of Section 139 of the Code of Civil Procedure
4. Application of Section 82 of the Evidence Act
5. Interpretation of Section 4 of the Indian Oaths Act, 1873
6. Reciprocity of Notarial Acts between India and the U.S.A.
7. Implementation of Section 14 of the Notaries Act, 1952

Detailed Analysis:

1. Admissibility of Affidavits Sworn Before a Foreign Notary Public
The core issue was whether affidavits verifying the petition, affirmed before a Notary Public in a foreign country, could be accepted in the High Court of Calcutta. The court concluded that affidavits sworn before a Notary Public in the U.S.A., who is authorized by the laws of New York to administer oaths, should be recognized by Indian courts. The principle of comity of nations and lex loci relating to procedure supports the acceptance of such affidavits to ensure foreign litigants can seek justice in Indian courts.

2. Application of Rule 16 of Chapter XV of the Original Side Rules
Rule 16 of Chapter XV of the Original Side Rules was scrutinized, which states that affidavits sworn in England before certain officials would be accepted. The rule, however, does not include affidavits sworn in the U.S.A. The court recognized this rule as a relic of the past and suggested that it should not impede the acceptance of affidavits from the U.S.A., especially when they are duly certified and authenticated.

3. Interpretation of Section 139 of the Code of Civil Procedure
Section 139 of the Code of Civil Procedure specifies who can administer oaths for affidavits under the Code. The section does not list a Notary Public as a competent person. However, the court noted that this section pertains to domestic notaries and does not address foreign notaries, who are authorized by their own country's laws to administer oaths.

4. Application of Section 82 of the Evidence Act
Section 82 of the Evidence Act provides for the presumption of genuineness of documents admissible in England or Ireland. The court observed that this presumption does not extend to documents from the U.S.A. However, the court emphasized that the practice and procedure of English courts, which accept affidavits sworn before a foreign notary, should be followed in India as well.

5. Interpretation of Section 4 of the Indian Oaths Act, 1873
Section 4 of the Indian Oaths Act, 1873, outlines who can administer oaths and affirmations in India. This provision does not include notarial attestation by a foreign notary. Despite this, the court argued that the practical utility and international recognition of notarial acts necessitate their acceptance, provided they are duly certified.

6. Reciprocity of Notarial Acts between India and the U.S.A.
The court highlighted the importance of reciprocity in recognizing notarial acts between India and the U.S.A. Evidence was presented that notarial acts from India are recognized in the U.S.A. and vice versa. This mutual recognition supports the acceptance of the affidavits in question.

7. Implementation of Section 14 of the Notaries Act, 1952
The court recommended that the Central Government of India issue a notification under Section 14 of the Notaries Act, 1952, to formally recognize the reciprocity of notarial acts between India and the U.S.A. This would prevent future confusion and ensure consistent acceptance of such documents.

Conclusion:
The court ordered the acceptance of the petition signed by Michael Michaelson and verified by affidavits sworn before Elizabeth Levy, a Notary Public in the U.S.A. The judgment emphasized the need for procedural clarity and the recognition of international notarial acts, urging the Central Government to issue relevant notifications to formalize this practice.