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TMI Blog1967 (3) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... e certificate of the Consulate-General of India in New York for legalising the seal of the Clerk of the County of New York. Now, the point of procedure arising for decision in these proceedings is whether such affidavits verifying the petition affirmed before a Notary Public of a foreign country can be accepted in this court. The office of this court, where the application was intended to be presented, felt certain difficulties in admitting this petition for winding up and therefore administratively sought the direction from this court. As the point raised is a point of considerable importance in matters relating to procedure, I adjourned the matter to court and issued a notice giving an opportunity to Messrs. Orr, Dignam and Company, the solicitors of the petitioners, to argue the matter fully so that this court will be able to determine judicially the question and settle the practice. Mr. Sankar Ghosh, learned counsel for the petitioner, has ably argued the matter before me. The difficulties which the office felt may be briefly summarised as follows : In the first place, rule 16 of Chapter XV of the Original Side Rules of this Court appears to exclude the U.S.A. from its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, provides that the authority to administer oaths and affirmations is vested in ( a ) all courts and persons having by law or consent of parties authority to receive evidence, ( b ) the Commanding Officer of any Military, Naval or Air Force station occupied by troops in the service of the Government. This provision again does not include notarial attestation of a document or affirmation by a Notary Public of a foreign country. Apart from these four difficulties the department draws attention to the decisions of A. N. Ray J., dated 17th August, 1965, in Matter No. 107 of 1964 and in In the matter of Chartered Accountants Act and in Controller of Insurance, Simla v. B. Mukherjee, and of B.C. Mitra J. dated 25th May, 1956, in In the matter of Gaya Textiles (P.) Limited, expressing the view that a Notary Public is not a person competent to administer oath to a deponent who is affirming an affidavit and, therefore, such an affidavit purporting to have been made before a Notary Public is not an affidavit according to the Company Rules and the Code of Civil Procedure. No doubt that is so; but that is for a Notary Public acting in India. These decisions, therefore, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who not only made the appointments themselves but also delegated their powers to English churchmen. Matters of a commercial nature gradually came to dominate the work of the Notary Public, and there grew up a separation from their ecclesiastical origin. It is also common knowledge that the functions of an English Notary are not defined by any statutory provision or rule. Generally speaking, no person in England is entitled to practise as a Notary Public or do any notarial acts unless he has been duly sworn, admitted and enrolled in the court of faculties belonging to the Archbishop of Canterbury. A part of Indian legal history is that it was these persons before the year 1952 who practised as Notary Public in India. In the year 1952 the Indian Notaries Act came into operation to which I shall make a reference presently. Brooke's Treatise on the Office and Practice of a Notary of England, 8th edition, page 19, points out : "From a remote period English notaries have exercised the right to administer oaths and take affidavits. These affidavits are for the most part intended for use in the British dominions abroad and in foreign countries where notarial acts are recognised. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision before this court. The leading case on this point is Haggit v. Iniff [1854] 5 De GM G. 910 . The Lords Justices in the Court of Appeal in that case had to consider the following facts. An affidavit, sworn before Mr. Allen, a Notary Public in the State of New York in America was intended to be brought on the records of the English court. The point there also was that Mr. Allen being a foreign Notary Public, credit ought to be given to his official act which was certified by the British Consul, New York, under the official seal. The clerk of the records of the court, however, doubted whether the jurat was sufficient in that case. There was an affidavit of the solicitor in that cause stating that he had applied to the American Consul in England, who informed him that public notaries in the United States were authorised by law to administer oaths in any legal proceedings in that country. The Court of Appeal in that case admitted that affidavit and observed that the affidavit would have been sufficient before the passing of the new Act (15 and 16 Victoria, Chapter 86, section 22), and that as there appeared to be nothing in that Act to exclude it, it ought in their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ormond of The Rules of the High Court published in 1948 at page 348, the following remarks are to be found; "In addition to such affidavits, it has been the practice of the Calcutta High Court to admit affidavits sworn in the United Kingdom before persons who are Commissioners for Oaths duly appointed under the law of the United Kingdom, though in no sense Commissioners of the Calcutta High Court. Section 82 of the Indian Evidence Act may be relied on in such cases, since under that section such an affidavit is ' admissible for the same purpose for which it would be admissible in England or Ireland.' Section 82 of the Indian Evidence Act, however, does not apply to Scotland .............. While the position is thus not entirely satisfactory the practice of the court continues to allow in any ordinary case any affidavit to be filed which purports to have been sworn before a person purporting to be an English Commissioner for Oaths under English law." Not only, therefore, has this been the practice in this court but there is also no doubt that the English practice of English courts is just the same and many decisions subsequent to the decision quoted above confirmed that vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seal of the county clerk and clerk of the Supreme Court, New York, but has also, been forwarded under the certificate of the Consulate-General of India in New York for legalisation of the seal of the clerk of the County of New York. In that context of law and fact I see no difficulty whatever, legal or otherwise, in admitting this affidavit on the records of this court. I need hardly quote rule 6 of the Company Rules, 1959 of this court which says : "Save as provided by the Act or by these Rules, the practice and procedure of the court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court." As I have said above, admitting this affidavit on the records of this court will be following the practice and procedure of this court. That is how I understand the cursus curiae of this court for many years. Coming back now to the Notaries Act, 1952, it is necessary to observe that this was the first Act in India to regulate the profession of notaries in India. In declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arial act are in my judgment sufficiently ensured and cannot be doubted. On this very important and practical problem of reciprocity, the court requested Mr. R.K. Deb as amicus curiae to appear as a senior Notary Public of this city to inform the court about the Indian practice and experience in dealing with notarial acts and reciprocity between India and U.S.A. Mr. Deb has informed the court that Indian notarial act is recognised and reciprocated in U.S.A. and similarly the notarial acts of U.S.A. have been accepted and recognised in India in diverse matters and documents, specially when many industrial, commercial and business transactions are today entered between India and U.S.A. Mr. Rashmohan Chatterjee of the instructing solicitors, Messrs. Orr, Dignam and Company and Mr. Shankar Ghosh also support the same practice and experience on the point of reciprocity between India and U.S.A. regarding notarial acts. Mr. Deb has told me that he himself in his professional capacity as a Notary Public in India has notarially noticed documents of the U.S.A. and his notarial acts have been recognised in the U.S.A. Similarly India has recognised notarial acts done by American Notaries. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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