1967 Supreme(Cal) 50

HIGH COURT OF CALCUTTA
P. B. Mukharji
K. K. RAY (PRIVATE) LTD. - Appellant
Versus
STATE - Respondent
Company Petn 55  Of  1967
Decided On : MARCH 15, 1967

An affidavit verifying a petition for winding up, affirmed before a Notary Public of a foreign country, can be accepted in the Court, if the Notary Public is authorised by the laws of his own country to administer Oath in the Country where the affidavit is being sworn and the notarial act has been certified by the appropriate authorities.

Headnote:

COMPANY - Winding up - Affidavit - Verification - Notary Public of a foreign country - Whether can be accepted in Court - Yes - Comity of Nations, lex loci relating to procedure and existence of foreign law proved and established, demand that such affidavits should be recognised by the Indian Courts.

Fact of the Case:

An application for winding up was presented in the Department of the Calcutta High Court by the Solicitors Messrs Orr, Dignam and Co., representing petitioners Franklin Square Agency Inc., an American Company. The petition was signed by Michael Michaelson, President and Principal Officer of Franklin Spare Agency Inc., and verified by two affidavits sworn before a Notary Public Elizabeth Levy of New York, U.S.A. authorised to administer oath by laws of the State of New York, U.S.A. The notarial act of Elizabeth Levy has also been certified by the County Clerk and Clerk of the Supreme Court, New York County, a court of record under its seal. This certificate has been annexed to the affidavits verifying the petition. This has been forwarded under the certificate of the Consulate General of India in New York for legalising the seal of the Clerk of the County of New York.

Finding of the Court:

The Court held that the affidavit verifying the petition affirmed before a Notary Public of a foreign country can be accepted in the Court. The comity of Nations, lex loci relating to procedure and existence of foreign law proved and established, demand that such affidavits should be recognised by the Indian Courts.

Issues: Whether an affidavit verifying a petition for winding up, affirmed before a Notary Public of a foreign country, can be accepted in the Court.

Ratio Decidendi: 1. The Court noted that Rule 10 of Chapter 16 of the Original Side Rules of the Calcutta High Court appeared to exclude the U.S.A. from its operation, as it only included affidavits sworn in England before certain officials. 2. The Court also considered Section 139 of the Code of Civil Procedure, which did not include a Notary Public as a person competent to administer oath to a deponent. 3. The Court further noted that Section 82 of the Evidence Act provided for the presumption of genuineness of documents admissible in England or Ireland without proof of seal or signature, but this presumption was confined to England or Ireland and did not operate in favour of the U.S.A. 4. The Court also referred to Section 4 of the Indian Oaths Act 1873, which did not include notarial attestation of a document or affirmation by a Notary Public of a foreign country. 5. The Court, however, held that these provisions did not apply to the present case, as the Notary Public in question was a foreign notary of a foreign country, who was authorised by the laws of his own country to administer Oath in the Country where the affidavit was being sworn. 6. The Court noted that the office of a Notary Public had its origin in the civil institutions of ancient Rome and had been recognised by the whole commercial world. 7. The Court also noted that the functions of an English Notary were not defined by any statutory provision or rule, and that generally speaking no person in England was entitled to practise as a Notary Public unless he had been duly sworn, admitted and enrolled in the Court of Faculties belonging to the Arch Bishop of Canterbury. 8. The Court further noted that the Indian Notaries Act came into operation in 1962 to regulate the profession of Notaries in India. 9. The Court held that the affidavit in question was admissible in evidence, as it had been sworn before a Notary Public who was authorised to administer oaths by the laws of the State of New York, U.S.A., and the notarial act had been certified by the County Clerk and Clerk of the Supreme Court, New York, the Court of Record under its seal, and the Consulate General of India.

Final Decision: The Court admitted the petition signed by Mr. Michael Michaelson, President and Principal Officer of Franklin Square Agency Inc., the petitioner, company, and verified by the two affidavits sworn before Elizabeth Levy, a Notary Public of the United States of America.