The Judgment of the Court was delivered by
Soumen Sen, J.:— This is an application for enforcement of a foreign award.
2. The award debtor has raised a preliminary objection with regard to the maintainability of this Execution Application on the ground that the deponent to the affidavit supporting that the said application has not provided any document to show his authority to file the said application and in any event, the said application has not been notarized in the proper manner as required under law. On this ground itself, the said application should be rejected and/or not be considered.
3. Mr. Jayanta Kumar Mitra, the learned Senior Counsel appearing on behalf of the award holder has submitted that Jaldhi Overseas vide Board meeting dated 8th June, 2016, authorized its Company Secretary, a principal officer, to take necessary steps and authorise a person to file proceedings on behalf of Jaldhi.
4. Sripriya Balasubramanian, the Company Secretary, executed a Power of Attorney authorizing Ajit Kumar Patni to act on behalf of Jaldhi and institute necessary proceedings for enforcement and execution of the award.
5. This execution was witnessed by Joseph Lopez, a Notary Public of Singapore.
6. Upon due execution such Power of Attorney, Josepoh Lopez identified and authenticated the signature of Sripriya Balasubramanian, the Company Secretary of Jaldhi Overseas Pte Ltd. The notarial certificate itself states that the executant of the Power of Attorney Sripriya Balasubramanian, herself signed the document, and the Power of Attorney produced before the Court itself shows that at the last page the notary has certified the signature of the executant.
7. The entire process of notarization of the power of attorney as well as the identification and authentication of Sreepriya Subramaniam by Joseph Lopez was certified by the Singapore Academy of Law through its Director, Low Hui Min on June 9, 2016.
8. Upon such authentication by the Singapore Academy of Law, the same was certified by the Ministry of Foreign Affairs (Singapore) as well as by the High Commission of India, Singapore.
9. The entire process adopted is in strict compliance of the chain of authentication for overseas document as stipulated in the Notaries Public Manual, Singapore, namely:
i) Notarisation by notaries public
ii) Authentication by Singapore Academy of Law
iii) Further verification by Ministry of Foreign Affaris
iv) Legislation by Embassies/Consulates
10. The authentication is also in strict compliance of Section 3 of Diplomatic and Consular Officers (Oath and Fees) Act, 1948.
11. Although, there is no specific notification by the Central Government of any reciprocity with the Government of Singapore as envisaged in Section 14 of the Notaries Act, 1952, however, the said provision is only directory in nature as qualified by the word “may”.
12. It is also an admitted position that Singapore Courts accepts affidavits or petitions notarized in India as would appear from the petition filed by the Judgement Debtor herein before the High Court at Singapore. Accordingly, the rule of reciprocity as envisaged under Section 14 of the Notaries Act, 1952, duly notarized document, by a Notary Public in Singapore, ought to be accepted by the Indian Courts as well, in comity with the international practice.
13. The learned Senior Counsel relying upon In re K.K Ray (Private) Ltd. reported at 37 Company Cases at 745 (last paragraph), Alan Kaye v. Recovery Officer, Employees' Provident Fund Organization, W.B reported at AIR 2006 Cal 158 (paragraphs 36, 37 & 39) and Charan Kaur alias Channo v. Pakhar Singh reported at AIR (2004) Punjab & Haryana 121 (Paragraph 12) submitted that Courts have repeatedly held that considering international recognition of the notary in the modern world of commerce, industry and dealings between different nations and countries, affidavit sworn before Notary Public in a foreign country ought to be accepted, even in the absence of any notification regarding such reciprocal act done by a foreign notary in our country.
14. Section 85 of the Evidence Act was enacted precisely to meet a situation as in the present case. The hyper technical point raised by the Judgement Debtor is a vile attempt to negate the legislative intent of Section 85, and to defeat justice and equity which the said provision was intended to protect and advance.
15. Section 85 presumes that a power of attorney executed in a foreign country, duly authenticated by a notary public, must be presumed to have been validly executed and authenticated, and such presumption in favour of the power of attorney executed in favour of Ajit Kumar Patni by Sripriya Balasubramanian, the Company Secretary will remain good and unassailable unless rebutted by the contestant by cogent evidence.
16. A bare perusal of Section 85 would show that a duly executed power of attorney authenticated by a notary public in a foreign country, is entitled to the presumption of Section 85 of the Evidence Act and in support thereof reliance has been placed on Paragraphs 9 and 10 of Charan Kaur alias Channo (supra).
17. In so far as the question of the notary not identifying Sreepriya Balasubramanian is concerned, the following proposition laid down in Jugraj Singh v. Jaswant Singh reported at AIR (1971) SC 761 at Paragraph 7 has been relied upon and contended to be decisive:—
“The only complaint is that the Notary Public did not say in his endorsement that Mr. Chawla had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and we are satisfied that he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This makes the second power of attorney valid and effective both under section 85 of the Indian Evidence Act and Section 33 of the Indian Registration Act.”
18. The learned Senior Counsel has relied upon a Division Bench decision of Delhi High Court in Electric Construction & Equipment Company Ltd.… v. Jagjit Electric Works….) reported at AIR (1984) Del 363 (Paragraph 8) and submitted that the presumption of Section 85 would arise only if two conditions are satisfied. Firstly, the power of attorney was executed before a notary public which in this case is (Joseph Lopez) and Secondly, Joseph Lopez, notary public of Singapore has duly authenticated the power of attorney and identified Sripriya Balasubramanian, Company Secretary of the Award Holder. In this case, both the conditions are fulfilled.
19. The Notary Public, Singapore has obviously satisfied himself that Sripriya Balasubramanian, Company Secretary of the Award Holder is a principal officer and duly authenticated her execution of the power of attorney, apart from attestation of the execution by Sripriya Balasubramanian, of the power of attorney and such authentication and attestation is sufficient to accept the said document. The learned Senior Counsel referred to Paragraphs 19 and 20 of Citibank N.A, New Delhi v. Juggilal Kamlapat Jute Mills Co. Ltd., Kanpur reported at AIR 1982 Del 487 and submitted that the power of attorney is executed before and authenticated by a Notary Public and hence a presumption under Section 85 would arise.
20. It is submitted that the decision of this Hon'ble Court reported in Rei Agro Ltd. (supra) is distinguishable on facts. In that case the petitioners were unable to produce a valid resolution of the Board and secondly, there does not appear to be any verification by the Ministry of Foreign Affairs, Singapore. Furthermore, the vital document, namely, Notaries Public Manual issued by Singapore Academy of Law was not brought to the notice of the learned Judge.
21. In any event, the decision of the Hon'ble Court in Rei Agro Ltd. (supra) is per incuriam as it did not consider the earlier decisions of this Hon'ble Court K.K Ray (supra) and Alan Kaye (supra).
22. The only person or entity entitled to challenge the initiation of proceeding on its behalf, in the instant case, is the Award Holder alone, in the event the Power of Attorney holder had no authority to represent the company. An attempt by a Judgment Debtor, having a liability in excess of US$ 10 million under an Award of a competent Tribunal to defeat a just and lawful claim of the Award holder on such flimsy technical issue can hardly be anything but malafide.
23. Per Contra, Mr. Pratap Chatterjee, the learned Senior Counsel appearing on behalf of the award debtor submits that for raising a presumption under Section 85 of the Evidence Act, the Power of Attorney must be executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government.
24. This presumption will arise only if the following conditions are satisfied and not otherwise:—
a) Authentication of the person by the Notary Public by identifying the executants; and
b) After being satisfied about the identity; witness the identified authenticated person signing the documents in the presence of the Notary public.
25. Attestation is merely watching the person signing the document and nothing else.
26. It is submitted that the award holder has produced an extract of the Directors Resolution during argument separately. The alleged extract was not before the Notary Public. The said Resolution bears a Company Seal allegedly of the decree holder. There is no other endorsement or authentication or attestation on the alleged extract of the Directors Resolution. Inasmuch as the said extract does not bear any endorsement of a Notary Public. The said Resolution also does not bear any endorsement of the Consular section of the High Commission of India, Singapore nor does it bear any endorsement of the Ministry of Foreign Affairs, Singapore. The said document also does not bear any endorsement of Singapore Academy of law authenticating the said document. The alleged Power of Attorney bears a Company Seal. There is a stamp and signature of Mr. Joseph Lopez, Notary Public, Singapore, with the only endorsement “witnessed by” appearing on this alleged Power of Attorney. Sripriya Balasubramanian, Company Secretary of the Decree Holder has not been identified by Mr. Joseph Lopez, Notary Public, Singapore. Without the executor of this alleged Power of Attorney being identified by the Notary public, the Notary Public has not authenticated this document as per the provision of Section 85 of the Evidence Act, 1872. This alleged Power of Attorney does not bear any endorsement of the Consular section of the High Commission of India, Singapore. This alleged Power of Attorney does not bear any endorsement of the Ministry of Foreign Affairs, Singapore. This alleged Power of Attorney does not bear any endorsement of Singapore Academy of Law authenticating this document or at all.
27. A purported Certificate dated 8 June, 2016 of Mr. Joseph Lopez, Notary Public, Singapore surprisingly bears a Company Seal allegedly of the decree holder. It does not appear from this purported Certificate that Mr. Joseph Lopez, Notary Public, Singapore, has identified Sripriya Balasubramanian, Company Secretary of the Decree Holder. The Notary Public has not authenticated this document as per the provision of Section 85 of the Evidence Act, 1872. This purported Certificate does not bear any endorsement of the Consular section of the High Commission of India, Singapore. This purported Certificate does not bear any endorsement of the Ministry of Foreign Affairs, Singapore. This purported Certificate does not bear any endorsement of Singapore Academy of Law authenticating this document or at all.
28. The Certificate dated 9 June, 2016 of the Singapore Academy of Law has endorsed as “seen” by the Consular section of the High Commission of India, Singapore with a further endorsement “not responsible for the contents”. The certified true signature on one Zarine Binte Ramli and a stamp of the Ministry of Foreign Affairs, Singapore appears on this document. No submission has been made by the Decree Holder as to who Zarine Binte Ramli is. In the alleged certificate issued by Singapore Academy of Law, the three signatures are on different dates:
NAMEDATELOW HUI MIN09/06/2016ZARINA BINTE RAMLI13/06/2016REJI ABRAHAM14/06/2016
29. The Decree Holder has also relied on a Notaries Public Manual published by the Singapore Academy of Law. The portions relied upon by the Decree Holder is at pages 15 and 16 of the said Manual. The same is not relevant inasmuch as the Manual itself records as follows at page 15 (last three lines):
“There are no set rules governing the requirements of different countries where the documents are to be used. Notaries can find out individual requirements from the Embassies when they actually send documents for legalisation.”
30. In the judgments cited by the Decree Holder, a distinction has been drawn between ‘authentication’ and ‘attestation’.
31. In the judgment of Citibank (supra) following the judgment of Wali Mohammad Chaudhari v. Jamal Uddin Chaudhuri reported at AIR 1950 Allahabad 524, ‘authentication’ has been held to be not merely an attestation but something more. It means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution. Authentication connotes an attestation made by an authorized officer by which he certifies that a record is in due form of law, i.e, that the person executing the power of attorney was competent to so. In this it was found that the Notary Public in his certificate had identified the persons executing the Power of Attorney and accordingly it was held that the Power of Attorney was authenticated as per the requirement of Section 85 of the Evidence Act.
32. In another judgment cited by the Decree Holder, namely Electric Construction & Equipment Company Ltd.… v. Jagjit Electric Works…. reported at AIR 1984 Del 363 it was held that mere attestation, without authentication by a Notary Public will not raise a presumption under Section 85 of the Evidence Act.
33. Similarly, in another judgment of this Hon'ble High Court cited by the Decree Holder, namely, Alan Kaye (supra), this Hon'ble Court held that a supplementary affidavit notarized by a Notary Public without identifying the deponent was admissible since, prior thereto, the same Notary Public had notarized a Power of Attorney executed by the same deponent, where the Notary Public had duly identified the deponent.
34. Accordingly, the execution petition affirmed on the basis of the alleged Power of Attorney is not in proper form and thus not maintainable and liable to be dismissed.
35. The award holder is a foreign company having its registered office at Singapore. The award holder has appointed one Ajit Kumar Patni as a constituted attorney to file the instant application for enforcement of the award. The applicant has produced the following documents to establish the authority of Ajit Kumar Patni to act as a constituted attorney on behalf of the award holder:
(a) Certified extracts of the Directors Resolution of Jaldhi Overseas Pte Ltd. with official seal of the company appointing Mr. Ajit Kumar Patni as a constituted attorney of the country to file proceedings in India for enforcement of the awards dated 7 January, 2015 and 20 January, 2016 passed in ARB No. 147 of 2012 and a further resolution authorizing Ms. Sripriya Balasubramanian, Company Secretary to execute necessary deed/s for appointment of Mr. Ajit Kumar Patni as the Constituted Attorney thereof.
(b) General Power of Attorney dated 8 June, 2016 executed at Singapore by Sripriya Balasubramanian with the official seal of the Company in presence of a witness, namely, Aditi Mitan Sheth and witnessed by one Joseph Lopez, Notary Public, Singapore.
(c) Notary Certificate by Joseph Lopez, Notary Public at Singapore certifying that the document annexed to the certificate is an Original General Power of Attorney of M/s. Jaldhi Overseas Pte Ltd. executed on 8 June, 2016 by the Company Secretary, Ms. Sripriya Balasubramanian.
(d) A certificate dated 9 June, 2016 issued by Singapore Academy of Law certifying that Joseph Lopez is a duly appointed Notary Public practising in Singapore and the signature appearing at the foot of the annexed Notarial Certificate dated 8 June, 2016, is the signature of the said Joseph Lopez. The said certificate was duly signed by Low Hui Min, Director of Singapore Academy of Law on 9 June, 2016. The signature of Low Hui Min was duly certified by Zarina Binte Ramli, Ministry of Foreign Affairs, Singapore on 13 June, 2016. The said document was endorsed and seen in the Consular Section of the High Commission of India, Singapore on 14 June, 2016 by Reji Abraham, High Commission of India, Singapore with the disclaimer that the Indian High Commission at Singapore is not responsible for the contents.
36. The objection with regard to the maintainability of the said petition is apparently based on interpretation of Section 14 of the Notaries Act, 1952 read with Section 85 of the Evidence Act, 1872 and, by a Coordinate Bench In Re: REI Agro Ltd. & UBS AG reported at AIR 2015 Cal 54. In the matter of REI Agro Ltd. (supra), the learned Single Judge was considering Section 642 of the Companies Act, 1956 and Rule 21 of the Companies (Court) Rules, 1959, in relation to an affidavit by a constituted attorney of a foreign company verifying a winding up petition. It appears from the narration of facts in the said judgment that the deponents of the affidavit verifying the winding up petition was directed to satisfy the court that they were duly authorised by the petitioning-creditors to make and file the affidavit in verifying the winding up petition by producing valid resolutions of the Board of Directors of the petitioning-creditors supported by powers of attorney given in their favour by the petitioning-creditors. This was the main issue required to be decided in the said proceeding which would be evident from paragraph 4 of the said report. In paragraph 5 it is recorded that the learned Senior Counsel for the petitioners was unable to produce valid resolutions adopted by the petitioning-creditors and so far as the power of attorney is concerned, it appears to be authenticated by one Yang Yung Chong, a notary public of Singapore with similar endorsement from the Assistant Consular Officer in the High Commission of India, Singapore, as that of the instant matter which was held to be not a valid authentication of the foreign document.
37. In paragraph 7 of the report, a further question was raised with regard to recognition of a notarial certificate by a notary public at Singapore in absence of a notification issued by the Central Government upon Section 14 of the Notaries Act, 1952. The learned Single Judge after taking into consideration Section 14 of the Notaries Act, 1952 and Section 85 of the Evidence Act, 1872 held that since there is clearly no such notification of the Central Government in the Official Gazette granting recognition to the notarial act done by the notary public at Singapore, the Court is unable to give any recognition to the said power of attorney which was handed over to the Court on behalf of the petitioning creditors. The relevant paragraphs are paragraphs 5 to 10 which read:—
“5. A bare perusal of the operative portion of the judgment and order dated 27 January, 2015, quoted above, clearly reveals that production of valid resolutions adopted by the Board of directors of the petitioning-creditors supported by powers of attorney given in their favour by the petitioning-creditors were the essential requirements for the purpose of satisfying this Court that all the deponents had been “duly authorised” by the petitioning-creditors to make and file the affidavit in support of the petition on their behalf. However, the learned senior counsel for the petitioners has not been able to produce valid resolutions adopted by the petitioning-creditors. So far as the power of attorney is concerned, it appears to be authenticated by one Yang Yung Chong, a notary public of Singapore. No doubt, there is an endorsement made on the top sheet of the document, which carries the signature of Asha Upreti, Assistant Consular Officer in the High Commission of India at Singapore. However, the endorsement dated 12 November, 2014, merely reads as follows:
“Seen in the Consular Section of the High Commission of India, Singapore. And not responsible for the contents.”
6. As such, this endorsement cannot be held to be an authentication of the foreign document by the Consular Section of the High Commission of India, Singapore.
7. A question, therefore, arises as to whether this Court can recognize a notarial act which took place before a notary public at Singapore. This is required to be considered first, even before this Court can go into the genuineness or authenticity of the document. The answer to this question is clearly provided under Section 14 of the Notaries Act, 1952, which reads as follows:
“14. Reciprocal arrangements for recognition of notarial acts done by foreign notaries - If the Central Government is satisfied that by law or practice of any country or place outside India, the notrarial acts done by notaries within India are recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognized within India for all purposes, or as the case may be, for such limited purposes as may be specified in the notification.”
8. None of the judgments, which have been referred to or relied upon by the learned senior counsel appearing on behalf of the petitioners, takes into consideration or even dwells upon the above quoted provision of the Notaries Act, 1952, which is a Central legislation that has come into force at a latter point of time - much after the Indian Evidence Act of 1872. Now, so far as section 85 of the Indian Evidence Act is concerned, it provides that the Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated. However, it must be held that to the extent it dwells upon presumption as to powers of attorney, executed and authenticated by a Notary Public, the provision of section 85 of the Indian Evidence Act, 1872, cannot be read in isolation to the specific provision as contained under Section 14 of the Notaries Act, 1952, in so far as notarial acts done by foreign notaries are concerned. For an Indian Court to recognise a notarial act done by a notary public at Singapore, it is imperative for the Central Government to issue a notification under Section 14 of the Notaries Act, 1952, declaring that the notarial acts lawfully done by notaries in Singapore shall be recognised within India for all purposes, or as the case may be, for such limited purposes as may be specified in the notification. In other words, unilateral recognition by an Indian Court of a notarial act done by a foreign notary is impermissible in the absence of reciprocity of recognition as contemplated under Section 14 of the Notaries Act, 1952. The reason is, if it is otherwise, the sanctity of the sovereign power being exercised by an Indian Court will be compromised.
9. Since there is clearly no such notification of the Central Government in the Official Gazette granting recognition to the notarial acts done by the notary public of Singapore, this Court is unable to take any judicial recognition of the document which has been handed over before this Court by the learned senior counsel appearing on behalf of the petitioners.
10. In the absence of the documents which were required to be produced before this Court in terms of the order dated 27 January, 2015, it cannot be held that the deponents have been “duly authorised” by the petitioning creditors to make and file the affidavit in support of the winding-up petition. This Court, therefore, is left with no option but to reject the petition, being CP No. 1122 of 2014, summarily, on such ground alone.”
38. In order to appreciate the argument of the respective parties the following provisions are taken into consideration:—
“Section 14 of the Notaries Act, 1952
“S.14 Reciprocal arrangements for recognition of notarial acts done by foreign notaries. - If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawful done by notaries within such country or place shall be recognized within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.
Section 85 of the Evidence Act, 1872
S.85 Presumption as to powers-of-attorney.-The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, 1[Indian] Consul or Vice-Consul, or representative 2[***] of the 3[Central Government], was so executed and authenticated.
Section 3 in The Oaths Act, 1969
3. Power to administer oaths.-
(1) The following courts and persons shall have power to administer, by themselves, or subject to the provisions of sub-section (2) of section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:—
(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 or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.
(2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time being in force, any court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf-
(a) by the High Court, in respect of affidavits for the purpose of judicial proceedings, or
(b) by the State Government, in respect of other affidavits.”
39. The four documents that are produced before this court contains a valid Board Resolution with the common seal of the company, a general power of attorney duly executed by director with the common seal of the company being witnessed by a notary public, a notarial certificate of a notary public certifying due execution of the power of attorney in favour of Ajit Kumar Patni by the Company Secretary of the Company and a certificate by the Singapore Academic of Law duly certifying that the notary public, namely, Joseph Lopez is a duly appointed notary public practising in Singapore. The Singapore Academy of Law publishes a “Notaries Public Manual” for advocate and solicitor. The said manual is intended for the guidance of all notaries public. The said manual gives background and history of notaries public in Singapore. It appears that in 1995, the Notaries Public Act was significantly amended in that the power of appointing a notary public became vested in The Senate of the Singapore Academy of Law. By virtue of Section 3(1) of the Notaries Public Act the Senate are only empowered to appoint fit and proper persons to be Notaries Public for a period not exceeding 12 months. Under Section 3(2) of the Notaries Public Act, no person shall be appointed as a notary public unless he is a practising advocate and solicitor in Singapore and has so practised for not less than 7 years. Paragraph 2.7 of the said manual discusses the formalities of a Notarial Act in which there is a copious reference to Brooke's Book on Notaries, 12 Edition pages 65, 68 and 69. Incidentally Brooke was extensively quoted and relied upon In Re: K.K Ray (Private) Ltd. (supra) Paragraph 2.7 of the said manual reads as follows:—
“2.7 A notarial act can be defined as being -
“AN act is an instrument recording the due execution of a deed, contract or other writing or verifying some fact or thing done. An authentic act is an act executed in accordance with legal requirements and certified by the proper officer. A notarial act is the act of a notary public, authenticated by his signature and official seal, certifying the due execution in his presence of a deed, contract or other writing or verifying some fact or thing done in this presence or of which the notary has certain knowledge. Thus, any certificate attestation, note, entry, endorsement or instrument made or signed and sealed by a notary public in the execution of the duties of his office is a notarial act.”
The Essential contents of a Notarial instrument -
(i) The title;
(ii) The date and place of execution;
(iii) The names of the notary public, parties and witnesses;
(iv) A statement of the fact of the parties appearing before the notary and of their reason for doing so;
(v) The document or transaction which is the subject of the act;
(vi) Signatures of the parties and witnesses;
(vii) Signature and seal of the notary public.
Every Notarial instrument or act should narrate fully and accurately the whole procedure, of which it is intended to preserve a record and afford the proof.
Notarial Evidence
The provisions of the Rules of Court rule 41(12) provide as follows -
“A document purporting to have affixed or impressed thereon or subscribed thereto the seal or signature of a court, judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country, the seal or signature of a consular officer of a Commonwealth country in testimony of an affidavit being taken before it or him shall be admitted in evidence without proof of the seal or signature being the seal or signature of that court, judge, notary public or person.”
Effect of this Rule
Any document coming within the scope of the Rule need not require prove that the person stating himself to be a notary public is in fact a notary public or to verify his signature. However, where an affidavit and a document is -
(a) Sworn or attested for in a country outside a Commonwealth country; or
(b) Sworn to or attested in Singapore for use in a foreign country (other than the U.S.A),
The authority and the signature of the notary public is required to be verified. This verification as far as Singapore is concerned means the document is required to be sent to the Singapore Academy of Law who will give an Authentication certificate verifying that the notary is lawful practising in such capacity and that it is his true signature on the document. For documents for use in any non-Commonwealth country, apart from the authentication by the Academy of Law, the document may have to be sent to the Singapore Ministry of Foreign Affairs for further verification. Subsequently, the document may be required to be sent to the Embassy of the foreign country for legalisation.
There are no set rules governing the requirements of different countries where the documents are to be used. Notaries can find out individual requirements from the Embassies when they actually send documents there for legalisation.
Chain of Authentication (for Overseas Documents)
Notarisation by notaries public
Authentication by Singapore Academy of Law
Further verification by Ministry of Foreign Affairs
Legalisation by Embassies/Consulates.
There is also an international treaty (i.e the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, 1961) which shortens the chain of authentication. Under the treaty, public documents (which include notarial acts) that have been executed in the territory of a contracting state and which have to be produced in another contracting state do not need to be legalised. A simple certificate or ‘apostille’ in a prescribed form issued by the competent authority of the state from which the country originates will suffice. The United Kingdom and many other countries are parties to the treaty but Singapore is currently not a party.
For an in-depth understanding of the responsibilities of notaries public, it is strongly recommended that you read “Brooke's Book on Notaries - 12 Edition”.”
40. It is also significant to note that Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, gives power to every diplomatic or consular officer, in any foreign country to administer any oath and take any affidavit and also do any notarial act which any notary public do within a State.
41. In Re: K.K Ray (supra) a petition for winding up was signed by one Michael Michaelson, the President and Principal Officer of the company and was verified by two affidavits sworn before a Notary Public of New York, U.S.A authorised to administer oath by laws of the State of New York, U.S.A The notarial act was certified by the county clerk and the Clerk of the Supreme Court, New York Country, a court of record, under its seal and the certificates were attached to the affidavits and verified by the petitioners. The papers were 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. However, Rule 16 of Chapter 15 of the Original Side Rules of Calcutta High Court appears to exclude the U.S.A from its operation. This Rule was brought into effect from June 26, 1952 after the independence of India and after the proclamation of our Constitution. It does not include affidavits sworn in the U.S.A The second difficulty of the office is section 139 of the Code of Civil Procedure. As will be seen from those words of section 139, C.P.C, the notary public is not a person competent to administer oath to a deponent under that section. The third difficulty of the office is section 82 of the Evidence Act. This is the law of presumption in evidence as to the documents admissible in England or Ireland without proof of seal or signature. This presumption being confined expressly to England or Ireland naturally cannot operate in favour of the U.S.A This again is a relic of the past. The fourth difficulty which the office of High Court felt was section 4 of the Indian Oaths Act, 1873 which 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.
42. On such facts on a reference made by the office of this Court as to the acceptability of a petition supported by Affidavit Notarised in USA. Justice P.B Mukharji, former Chief Justice of this Court in His Lordship's erudite judgment traced the history of the institution of Notaries Public after a profound and insightful treatment of the subject observed:—
“The Notary is now internationally known today in the modern world of commerce, industry and dealings between different nations and countries. Reciprocity between different countries is its essential basis. Without this reciprocity and mutual respect the whole system and rationale of notarial acts will break down, to the great detriment of commercial transactions throughout the world and their due administration by courts of law in different countries and will jeopardise international commerce, law merchant and administration of justice. It is precisely to provide facilities of receiving affidavits, documents, protests of bills of exchange and other commercial papers that this institution of Notary Public grew up to fulfil a very practical need. Unnecessary or illogical impediments should not be put on his way. No doubt that does not mean that law of the courts should not ensure reasonable authenticity and dependability of notarial acts. When I find that this notarial act of Elizabeth Levy has been certified by the county clerk and by the clerk of the Supreme Court of New York, the court of record under its seal, and when I find that this Notary Public is authorised to administer oath by the laws of the State of New York, U.S.A and further that there is the certificate of the Consulate General of India, an office recognised expressly by Section 3 of the Indian Diplomatic and Consular Officer (Oaths and Fees) Act, 1948, to administer oath and take affidavit, then the dependability and authenticity of such notarial 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 the 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. I am therefore satisfied that there is reciprocity with mutual recognition of notarial acts between India and the U.S.A
On these authorities and for these reasons I have no doubt in my mind that this petition signed by Michael Michaelson, President and Principal Officer of the petitioner company Franklin Square Agency Inc., and verified by two affidavits sworn before Elizabeth Levy, a Notary Public of U.S.A, should be duly admitted and received on the records of this court.
I would, however, draw the pointed attention of the Central Government of India to Section 14 of the Notaries Act, 1952. That is a section on the reciprocal recognition of the acts done by foreign notaries. It provides as follows:
“If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by Notaries within India are recognised for all or any limited purposes of that country or place, the Central Government may, by notification in the official gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.”
It is time that the Central Government of India issued a notification under Section 14 of the Notaries Act recognising the existing reciprocity of notarial acts between India and U.S.A in order that there may be no doubt or confusion in respect of the same and that individual cases need not come up to courts for admission.
A copy of this judgment with the above observations shall be sent by the Registrar of this court to the Ministry of Home Affairs, Government of India, for taking necessary steps for issuing such notification and making relevant rules under Section 15 of the Notaries Act on this point.”
43. The object of the Notaries Act, 1952, was to empower the Central and State Governments to appoint notaries, not only for the limited purposes of the Negotiable Instruments Act, but generally for all recognised notarial purposes, and to regulate the profession of such notaries. This was necessary because earlier the notaries public were performing their duties by virtue of an ancient English statute. The Master of Faculties in England used to appoint Notaries Public in India for performing all recognised notarial functions, but it was not appropriate that persons in this country who wish to function as notaries should derive their authority from an institution in the United Kingdom. Section 14 of the Notaries Act, 1952, empowers the Central Government to issue notification recognising notarial acts lawfully done by notaries in foreign countries on being satisfied that the notarial acts of India is also recognised by such country. In the modern world of commerce, industry and dealings between different nations and countries notary plays a very important and pivotal role. Notary internationally is a recognized mode of acceptance of a foreign document. The Notaries Act, 1952, itself recognises that in this modern world notarial acts of a foreign country is required to be recognised provided the other countries also recognises and accept the notarial acts of India. Reciprocity between different countries is its essential basis. Without this reciprocity and mutual respect the whole system and rational of the notarial acts would break down and would seriously affect commercial transactions throughout the world and their due administration by courts of law in different countries and jeopardise International Trade and Commerce and administration of justice.
44. It is precisely to provide facilities of receiving affidavits, documents and other commercial papers that this institution of notary public grew to fulfil very practical need. Unnecessary or illogical or irrational or unmeritorious obstructions and impediments should not be put on its way. This, however, does not mean that the court would accept a notarial attestation which does not conform to the law or without ensuring reasonable authenticity and dependability of Notarial Acts, like the requirement under Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. Considering the International recognition of the notary public in the modern world of commerce, industry and dealings between different nations and countries, this High Court in K.K Roy (supra) accepted the affidavit sworn before the Notary Public in U.S.A even in the absence of any notification regarding such reciprocal recognition of the Acts done by the foreign notaries in our country in terms of Section 14 of the Notaries Act, 1952. The question would arise whether a power of attorney notarised in a foreign country would be accepted in India with whom, India do not have any reciprocal arrangement. In K.K Roy (supra) this problem arose. A foreign notary duly authorised by the appropriate laws of the State of New York, USA, administered oath in the country where affidavits was sworn. This affidavit was sought to be relied in a winding up proceeding initiated before this court as a proof of authority to represent the foreign company before this court. The said affidavit was accepted on the principle that the comity of Nations, lex loci relating to procedure and existence of foreign law being proved and established, it demands that such affidavit should be recognised by the Indian courts. To deny recognition in such circumstances is to deny foreign litigants seeking redress and justice in Indian Courts.
45. The other objection with regard to authentication of the power of attorney by the notary public at Singapore in favour of the deponent. Section 85 of the Evidence Act deals with presumption as to power of attorney. The fact of execution before and authentication by, persons of the position and office of those in the section mentioned, affords a guarantee and prima facie proof of such execution and authentication respectively.
46. It may be fruitful to refer to some of the well-known law lexicon to ascertain the scope and meaning of the word “authentication”. In Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, 2005, authenticate and authentication are defined as follows:—
“Authenticate:- To give legal validity to; to establish the genuineness of; to make an authentication i.e, an attestation made by a proper officer by which he certified that the record is in due form of law, and that the person who certifies it is the officer appointed to do so.
Authentication:- 1. Broadly, the act of proving that something (as a document) is true or genuine, esp. so that it may be admitted as evidence; the condition of being so proved (authentication of the handwriting).
2. Specific., the assent to or adoption of a writing as one's own.
Authentication is the process of validation the identity of someone or something. (Information Technology)
The Act of authenticating.
A process used to confirm the identity of a person or to prove the integrity of the specific information. (Information Technology) Statement that something, is true, such as an auditor's signature on a company's accounts.”
47. Jowitt's Dictionary of English Law, 2nd Edition, defines authentication as “an attestation made by a proper officer by which he certifies that a record is in due form of law, and that the person who certifies it is the officer appointed so to do.”
48. It is for this reason that the power of attorney bearing the authentication of a notary public or an authority mentioned in this section, is taken as sufficient evidence of the execution of the instrument by the person who appears to be the executant on the face of it.
49. The Section does not prescribe any specific form of attestation. “Authentication” would ordinarily mean “establish the truth, establish the authorship of, make valid”. When a notary public asserts that he had satisfied himself about the identity of the person in question and also about the fact that the executants had signed the document after having admitted its contents to be correct, this mean authentication has envisaged in the said section. It is not necessary that the notary public should use the particular word “authentication” in the attestation made by him on the document. There is no prescribed or established form of the nature and manner of authentication. In the instant case, the fact that the power of attorney executed and attested by the notary public on the same day shows that the power of attorney was executed before the notary and shall be treated as valid.
50. That the executants of the power-of-attorney has been identified to the satisfaction of the notary public flows from the notary public's endorsement on the document that it had been signed and sworn before him. There is a presumption of regularity of official acts and the notary public must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. The power of attorney executed before a notary public in Singapore and complying with the laws of the state and authenticated as required by that law, must be considered duly authenticated in accordance with the laws of India. Such a power of attorney is valid and effective under Section 85 of the Evidence Act.
51. Section 85 of the Evidence Act, raises a presumption about the execution of a power of attorney provided two conditions are fulfilled. Firstly, it must be executed before a notary public and secondly, it must be authenticated by a notary public. The judgments relied upon by the parties would show that the Court has given due regard to a notarial certificate even of a foreign notary public provided it fulfils aforesaid two conditions. The presumption would arise in respect of a valid execution of a document provided the person purporting to have executed the power of attorney as done so before a notary public. The notarial certificate disclosed in this proceeding shows that the power of attorney has been duly signed by the constituted attorney in the presence of the notary public. It is submitted by Mr. Chatterjee that the authentication is not merely an attestation but something more. There cannot be any quarrel with such proposition. Authentication connotes attestation made by an officer by which he certifies that a record is a due form of law. The words “due form of law” are very important and lent support to the contention of the learned Counsel for the award holder, namely, that under Section 85, a presumption would arise that the constituted attorney authorized by a Board Resolution is competent to execute the power of attorney and he has done so in the instant case. The nature and manner of the authentication by the notary public also supports the contention when the procedure is examined by making a reference to the Singapore Academy of Law. Rule 11(1) of the Singapore Academy of Law, a Senate is appointed as a Board of Commissioners for Oaths and Notaries consisting of various officials. By virtue of Section 3(1) of the Notaries Public Act, the Senate is only empowered to appoint fit and proper persons to the notaries public. The chain of authentication requires to be followed under the Singapore Academy of Law has been duly followed. In the instant case, power of attorney on the face of it shows to have been authenticated before notary public in Singapore in view of Section 85 of the Evidence Act, the Court has to presume that it was so executed. Once the original document was produced purported to have been executed and attested in accordance with the provisions of Section 85 of the Evidence Act, the presumption under Section 85 of the Evidence Act would follow and the Court would presume that it was so executed and authenticated. The Court shall presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. There is a presumption or regularity of official acts and there cannot be any doubt that the notary public must have satisfied himself in discharging of his duties that the person who was executing the power of attorney was the proper person. (See Jugraj Singh (supra) and Citibank N.A (supra))
52. In Jugraj Singh (supra), the Hon'ble Supreme Court accepted a document, which was authenticated before a notary public of California, U.S.A Although, the decision in K.K Ray (supra) was not considered by the Supreme Court but it appears that the Hon'ble Supreme Court, in fact, has approved the said principle. The Supreme Court accepted the second power of attorney which was found to have been executed before a proper notary public in compliance with the laws of California and the document was authenticated as required by the law. The objection that the notary public did not say in his endorsement that the constituted attorney has been identified to his satisfaction was considered to be immaterial as there is a presumption of regularity of official acts. However, the said decision did not consider the implication of Section 14 of the Notaries Act, 1952.
53. A fairly recent judgment of the Bombay High Court noticed both K.K Ray (supra) and REI Agro Ltd. (supra) and held that notification under Section 14 of the Notaries Act is not mandatory inasmuch as Section 85 of the Evidence Act applies equally to documents authenticated by notary public of other countries and there is no reason to import the provisions of Notaries Act for interpreting the provisions of the Evidence Act. For raising the statutory presumption Sections 85 and 57 do not require any recognition of notarial acts of the country or place as the case may be where such power of attorney is executed or authenticated. Moreover, there is nothing in the language of Section 14 which requires notarial acts which are declared as recognized by the Central Government by the notification in the official gazette are to be recognized in India. (Zhejiang Medicines & Health Products Import and Export Co. Ltd. v. Devanshi Impex Pvt. Ltd. reported at 2016 SCC OnLine Bom 10041). However a contrary view was taken by a Division Bench of High Court of Kerala in Karachan Veettil Mariyam v. Alima Beevi reported at 2015 SCC OnLine Ker 31317 relying on Rei Agro Ltd. (Supra). The Division Bench however did not notice K.K Ray (Supra) and has not discussed the issues raised in this proceeding.
54. In Section 14 of the Notaries Act, the legislature has consciously used the verb “may” as opposed to “shall”. The words “may” “shall” “must” do manifest the intention of the legislature and they may indicate whether the provisions of rule are directory, mandatory or compulsory. It is elementary that the duty of a Court is to give effect to the intention of the legislature as expressed in the words used by it and not to travel beyond it and no outside consideration can be called in aid to find that intention.
55. It may not be necessary at this stage to deliberate on this issue as to whether Section 85 of the Evidence Act has to be read with Section 14 of the Notaries Act since in the instant case, although there is no official notification but the reciprocal country has accepted notarial attestation and notarial certificates of notary public of India. It is an admitted position. The affidavit produced by the award holder filed in Originating Summons No. of 2013 duly affirmed by a notary public at Chandigarh was accepted by the Court at Singapore. It is in this context Section 14 has to be interpreted. In fact, in K.K Ray (supra) the opinion of Senior Solicitors were taken and it was found that the reciprocal country also accepted notarial certificates of Indian Notary Public. Once, this mutual reciprocity is established, there cannot be any requirement by notification in the official gazette to declare that the notarial acts lawfully done by notaries in such countries should be accepted in India. The practice and procedure of the two countries are required to be taken into consideration in interpreting Section 14 of the Notaries Act, 1952. The purpose of interpretation of a section in the statute is to advance the cause of justice and not to defeat it on technicalities.
56. K.K Ray (supra) recognizes the principle that foreign litigants can seek justice in India only if the Notaries Act of our Country is recognized in that foreign country and Notaries Act of such country is recognized in our country. In Rajesh Wadhwa… v. Dr. (Mrs.) Sushma Govil… reported at AIR 1989 Del 144: 37 (1989) DLT 88 a notarial attestation by a Notary Public of U.S.A was accepted. It was held that there is no need for the Central Government to issue notice under Section 14 before such acts are legally recognized by the courts. Section 14 was held to be an enabling provision. The reason being that no provision in the Notaries Act, 1952 shows that previous practice and procedure of notarial acts being recognised in India in respect of the Notaries of foreign countries are not to be recognised henceforth after the commencement of the Notaries Act, 1952. The views of the Allahabad, Delhi and Punjab & Haryana High Court appears to be that application of section 85 cannot be limited only to the Notaries as defined in the Notaries Act and that a document like power of attorney duly attested by a notary public coming from a foreign country must be presumed to be validly executed as has been laid down under Section 85. (Abdul Jabbar v. Second Addl. District Judge Orai, AIR 1980 All 369; Rajesh Wadhva v. Sushma Govil, AIR 1989 Del 144; Chanan Kaur v. Pakhar Singh, AIR 2004 P&H 121.)
57. Under the international treaty i.e the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, 1961 public documents (which include notarial acts) that have been executed in the territory of a contracting state and which have to be produced in another contracting state do not need to be legalized. If Singapore had been a contracting party absence of a notification in the official gazette under Section 14 of the Notaries Act would be inconsequential. The provision of the international treaty is to be read into the municipal law.
58. In Rei Agro Ltd. (supra) it is an admitted position that there has been no proper authentication and, accordingly, the presumption under Section 85 of the Evidence, would not arise at all. There cannot be any doubt that mutual reciprocity would not mean that a document which has not been properly executed and authenticated by a notary public in the reciprocal country would be accepted. This is even true for the notarial acts done by notaries of foreign countries duly notified in the official gazette.
59. When a document purporting to be a power of attorney and to have been executed before and authenticated by a notary public, is produced before the court, an affidavit of identification as to the person purporting to make the power being the person named therein is unnecessary - In the good of Myline, ILR 33 Cal 625.
60. In the instant case, the court is satisfied that the proper procedure required to be followed for notarial attestation on the power of attorney has been duly and validly done.
61. Mr. Chatterjee, learned Senior Counsel has relied upon a Division Bench judgment in Union of India v. Budhlani Engineering Pvt. Ltd. reported at (2008) 3 CHN 661, for the proposition that in the even this court takes a contrary view as regard the interpretation of Section 14 of the Notaries Act, the matter is required to refer to a Hon'ble Chief Justice to constitute a larger bench to resolve the issue.
62. Mr. Mitra, the learned Senior Counsel, in response, has submitted that the single bench decision in Rei Agro Ltd. (supra) is not binding on this court. The said decision is a decision per incurium as it has failed to notice a coordinate bench decision in K.K Roy (supra). Mr. Mitra, has also relied upon a decision of the Hon'ble Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra reported in (2014) 16 SCC 623, paragraph 19 for the proposition that in case of such conflict the earliest view should be followed. The said paragraph reads:—
“19. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a stature, rule or regulation, which was not brought to the notice of the country. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a consonance with the views of this court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”
63. It appears that in Rei Agro Pte Ltd. (supra) the earlier decision in K.K Ray (supra) was not noticed. The learned Single Judge also did not have any occasion to consider the previous and prevailing practise and procedure between the two countries and the elaborate procedure followed in Singapore in authenticating the power of attorney. The notary public manual issued by the Singapore Academy of Law was also not considered. It also does not appear from the judgment that the issue as to whether absence of a notification under Section 14 of the Notaries Act would be a bar from accepting a notarial certificate issued by a Notary Public of a foreign country when the foreign country recognizes notarial certificate issued by the Notary Public of India. When a particular point was never raised and argued, it cannot be inferred that a decision has been given on that particular point. Moreover, it appears that the learned Single Judge found various discrepancies in the documents as the petitioner was unable to produce a valid Board Resolution. In view of the law laid down in K.K Ray (supra) and Jugraj Singh (supra) and taking into consideration that a due procedure was followed by the Notary Public at Singapore in authenticating the documents, the objection raised with regard to the authority of the deponent to form the affidavit is rejected.
64. E.C No. 433 of 2016, E.C No. 434 of 2016 and E.C No. 436 of 2016 shall appear on 6 June, 2017.
65. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
Notaries Act, 1952
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