Alan Kaye vs Recovery Officer, Employees' ...

on 24 March, 2006

Calcutta High Court Calcutta High Court Alan Kaye vs Recovery Officer, Employees' ... on 24 March, 2006 Equivalent citations: AIR 2006 Cal 158, 2006 (2) CHN 409 Author: J Bhattacharya Bench: J Bhattacharya JUDGMENT Jyotirmay Bhattacharya, J. Re : Maintainability of the Writ Petition 1. The validity and/or legality of the notice of demand dated 8th August, 2005 being Annexure 'P-1' to this writ petition, is under challenge in this writ petition. 2. Initially when this application was taken up for hearing at the motion stage, a preliminary objection regarding entertainability of this writ petition by this Court was raised by Mr. Das Adhikary, learned Senior Advocate, appearing for the Provident Fund Authorities, viz., the respondent Nos. 1 & 2 herein, on the ground that since the cause of action for this writ petition arose in Maharashtra and the office of the principal respondent is situated in Maharashtra both of which are beyond the territorial jurisdiction of this Court, this Court has no jurisdiction to entertain this writ petition. 3. The said preliminary objection regarding entertainability of this writ petition was overruled by this Court on 10th January, 2006 as this Court found that a substantial part of the cause of action of this writ petition arose within the territorial jurisdiction of this Court. 4. Thereafter, when the writ petition was again taken up for hearing, the maintainability of this writ petition was challenged by Mr. Das Adhikary on the following grounds : i) The writ petition was not affirmed in the manner as it was required to be done in terms of the provision as contained in Order 19 Rule 3 of the Code of Civil Procedure read with Rule 36 (6) of Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution read with Rule 29 of Chapter IV of the Appellate Side Rules of the High Court at Calcutta, ii) The supplementary affidavit filed by the petitioner in connection with the said writ petition, cannot be accepted and/or made a part of the writ petition as the said supplementary affidavit was not affirmed in the manner as it was required to be done before a Notary Public in United Kingdom, iii) The said supplementary affidavit cannot be accepted, as the said document was not stamped with requisite stamp-duty as per Section 18 of the Indian Stamp Act, 1899. 5. Re: Ground No. (iii): With regard to the objection as contained in ground No. (iii), the parties were heard earlier and ultimately it was decided by this Court on 14th February, 2006 that in order to receive the said supplementary affidavit, the said affidavit is required to be stamped as per Section 18 of the Indian Stamp Act. A week's time was granted to the petitioner to cure the said defect by filing sufficient stamp-duty on the said document as per Section 18 of the said Act. Pursuant to the said direction passed by this Court, a non-judicial stamp of Rs. 10/- was submitted by the petitioner on 20th February, 2006.
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Alan Kaye vs Recovery Officer, Employees' ... on 24 March, 2006

The Provident Fund Authorities, viz., the respondent Nos. 1 & 2, however, still are not satisfied. Mr. Das Adhikary, appearing on behalf of the said respondents, submitted that the defect as pointed out above cannot be rectified by mere submission of a non-judicial stamp paper of Rs. 10/- in Court. According to Mr. Das Adhikary, the said document is required to be sent to the Collector for adjudication of stamp-duty and/or for impounding the said document. At this juncture, Mr. Arijit Chowdhury, learned Senior Advocate, submitted that he could not assist this Court properly on the last occasion when the objection regarding the acceptability of the said supplementary affidavit for want of requisite stamp as per Section 18 of the Indian Stamp Act, 1899 was considered and/or decided by this Court. Accordingly, the parties were heard at length again on the said issue. 6. Mr. Chowdhury submitted that Section 18 of Indian Stamp Act, 1899 deals with the requirement of stamping certain instruments other than bills and notes executed out of India, Mr. Chowdhury pointed out from the said Act itself that instrument has been defined in Section 2(14) of the said Act. Section 2(14) of the said Act provides that instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. 7. Mr. Chowdhury submitted that since no right or liability of the petitioner is, or purports to be created, transferred, limited, extended, extinguished or recorded in the said supplementary affidavit, the said supplementary affidavit cannot be treated as an instrument within the meaning of Section 2(14) of the said Act. Mr. Chowdhury, thus, contended that if the said supplementary affidavit does not amount to an instrument within the meaning of the said Act, then the said supplementary affidavit is not required to be stamped under the Indian Stamp Act, 1899. 8. Mr. Chowdhury further submitted that even assuming though not admitting that Indian Stamp Act, 1899 is applicable to this supplementary affidavit, still then in view of the exemption as provided in Serial No. 4(b) of Schedule 1A, no stamp is required to be paid on such supplementary affidavit. Serial No. 4(b) of Schedule 1A runs as follows : Serial No. 4(b) of Schedule 1(A): Exemption -Affidavit or declaration in writing when made for the immediate purpose of being filed or used in any Court or before the officer of any Court. 9. Mr. Chowdhury submitted that the effect of the said exemption clause which was appended to Serial No. 4 as aforesaid has been examined by different High Courts in the following cases : (i) Kishan Das and Anr. v. Mohd. Nazir and Anr. reported in AIR (34) 1947 Allhabad, page 37 (Full Bench), (ii) Sridhar Sing v. State . Relying upon the said decisions, Mr. Chowdhury submitted that no stamp duty is required to be paid on the said supplementary affidavit as the same was affirmed for filing in connection with this writ petition pending before this Court. 10. In reply to the said submission of Mr. Chowdhury, Mr. Das Adhikary maintained his stand as earlier by relying upon Section 18 of the said Act. Mr. Das Adhikary submitted that if the affidavit is not regarded as an instrument, then why the affidavit was included in Serial No. 4 in Schedule 1A of the said Act? According to
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Alan Kaye vs Recovery Officer, Employees' ... on 24 March, 2006

Mr. Das Adhikary, the said supplementary affidavit cannot be received and/or made part of the record unless it fulfils the conditions regarding payment of stamp-duty under the Indian Stamp Act, 1899. 11. After hearing the learned Advocates of the respective parties and considering the relevant provisions of the Indian Stamp Act, this Court changes its earlier view with regard to the requirement of payment of stamp-duty on such supplementary affidavit under the Indian Stamp Act. Section 18 of the said Act refers to the instrument other than bills and notes executed out of India which are required to be stamped under the said Act. Instrument has been defined in Section 2(14) of the said Act which says that instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Since neither any right is, or purports to be created in favour of the petitioner in the said supplementary affidavit nor any right of the petitioner is, or purports to be extinguished by the said document, the supplementary affidavit cannot be regarded as an instrument within the meaning of the said Act. As such, no stamp under the Indian Stamp Act is required to be affixed on such supplementary affidavit. 12. Even assuming that each affidavit, be it an instrument as defined under Section 2(14) of the said Act or not, is required to be stamped under the said Act, still then in view of the exemption as provided in Serial No. 4(b) of Schedule 1A of the said Act, an affidavit which was affirmed for the immediate purpose of being filed or used in any Court or before the officer of any Court is exempted from payment of stamp-duty under the said Act. The expression 'immediate purpose' appearing in the said exemption clause has been explained by the Full Bench of the Allahabad High Court in the case of Kishan Das and Anr. v. Md. Nazir and Anr. (supra) wherein it was held that the said expression 'immediate' refers to the purpose and not to time. It was, thus, decided in the Full Bench decision that the affidavit sworn for the purpose of being filed in Court is not required to be stamped under the Stamp Act, 1899. 13. Similar view has also been expressed by the Rajasthan High Court in the case of Sridhar Sing v. State (supra) wherein it was held that when an affidavit was made for the immediate purpose of being filed or used in any Court or before the officer of any Court, the payment of any stamp-duty on such affidavit is exempted. It was further held therein that immediate purpose means direct purpose and if the direct purpose of making an affidavit is for filing the same in any Court or before the officer of any Court, the payment of stamp-duty on such an affidavit is exempted. 14. This Court does not find any justification for deviating from the said views of the Full Bench of the Allahabad High Court as well as of the Rajasthan High Court. 15. This Court, thus, holds that the petitioner is not required to pay the stamp-duty under the Stamp Act, 1899, on the said supplementary affidavit. As such, the earlier order which was passed by this Court on 14th February, 2006 on the very same issue, stands recalled. 16. Re: Ground No. (ii): The said objection was taken by Mr. Das Adhikary as the deponent was allowed to affirm the said supplementary affidavit by the Notary Public in England without identification of the deponent. By referring to the jurat portion of the said affidavit, Mr. Das Adhikary submitted that since the deponent was not identified by any person known to him before the Notary Public, the said affidavit cannot be accepted, as it was not done in the manner in which it was required to be done. Mr. Das Adhikary further submitted that before acceptance of the said supplementary affidavit, the Court must be satisfied as to whether the said affidavit was affirmed in the manner as provided in Rule 36(6) of Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution read with Rule 29 of Chapter IV of the Appellate Side Rules of the High Court at Calcutta. 17. In reply to such submission of Mr. Das Adhikary, Mr. Chowdhury submitted that for affirming an affidavit before the Notary Public in United Kingdom, the Notary Public is not required to state anything
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Alan Kaye vs Recovery Officer, Employees' ... on 24 March, 2006

about the identification of the deponent in the jurat portion of the said affidavit. By referring to para 316 of Halsbury's Laws of England Vol.17: Evidence, Mr. Chowdhury submitted that the place and date of affirmation is only required to be stated by the Notary Public in the jurat portion of the affidavit. 18. Mr. Chowdhury further submitted that identification of a deponent is necessary when a deponent is unknown to the Notary Public. By referring to the power-of-attorney by virtue of which the writ petition was affirmed by the constituted Attorney of the petitioner, Mr. Chowdhury submitted that the said power-of-attorney was executed before the very same Notary Public on 27th October, 2005 wherein the following certificate was appended in the said affidavit: I certify that the said Alan Kaye appeared before me on 27th October, 2005 at Preston, England and executed this power-of-attorney as a deed in my presence having identified himself to me by production of his United Kingdom Passport No. 029183061. sd/- Notary Public According to Mr. Chowdhury, since the deponent was known to the said Notary Public since the time of execution of the power-of-attorney, further identification of the deponent at the time of affirmation of the said affidavit was not necessary. 19. On consideration of the aforesaid submission of the learned Advocates of the respective parties, this Court holds that when the instant supplementary affidavit was affirmed by the same deponent before the same Notary Public immediately after the execution of the aforesaid power-of-attorney, the identification of the deponent, in my view, was not required at the time of affirmation of the subsequent document as the deponent was known to the said Notary Public by that time. 20. Para 316 of Halsbury's Laws of England Vol. 17: Evidence which is required to be taken note of in connection herewith, is set out hereunder : 316. Form of jurat.--Every Commissioner before whom any oath or affidavit is taken or made must state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. Every affidavit must be signed by the deponent, and the jurat must be completed and signed by the person before whom it is sworn. A Commissioner should state his title as Commissioner, although an affidavit was held sufficient where the jurat merely stated his name. The parties cannot waive irregularities in the form of a jurat. 21. Thus, it appears from the above para that identification of the deponent need not be mentioned by the Commissioner in the jurat of the affidavit. 22. Strong reliance was placed by Mr. Das Adhikary on Rule 29 of Chapter IV of the Appellate Side Rules to show that the deponent must be identified to the Commissioner by some person known to him. According to Mr. Das Adhikary, no affidavit can be affirmed without identification of the deponent. 23. This Court, however, does not find much substance in such submission of Mr. Das Adhikary as Rule 29 specifically mentions that such identification is necessary when a person making an affidavit is not personally known to the Commissioner. On plain reading of the said provision, this Court finds that identification of the deponent is not necessary when the deponent is personally known to the Commissioner. As such, the affidavit cannot be declared as invalid for want of identification of the deponent. 24. Mr. Das Adhikary further contended that the affidavit affirmed before the Notary Public outside India cannot be accepted by any Court in India.
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Alan Kaye vs Recovery Officer, Employees' ... on 24 March, 2006

25. The acceptability of an affidavit sworn before the Notary Public in U.S.A in connection with an application for winding up before this Court, was considered by this High Court in the case of Re: H.K. Ray (Put.) Ltd. . While considering the acceptability of such an affidavit in connection with the winding up proceeding before this Court, this Court also considered the acceptability of an affidavit affirmed before the Notary Public in England and Ireland in the said decision wherein it was held that in view of Section 82 of the Indian Evidence Act, such an affidavit affirmed before the Notary Public in England or Ireland is admissible before this Court. 26. Rule 16 of Chapter XV of the Original Side Rules of this Court also provides that affidavit sworn in England before any Judge, local Court, Magistrate or Notary Public or any official empowered to administer oath and bearing their respective seals, if any, will be accepted as sufficient in this Court and in all Courts and Tribunals subordinate to this Court. 27. Section 139 of the Civil Procedure Code also provides that oath on affidavit may be administered by any notaries appointed under the Notaries Act, 1952. 28. Thus, when the affidavit affirmed in England before the Notary Public can be accepted by this Court as per the aforesaid Original Side Rules of this Court, this Court does not find any justification in refusing to accept the said supplementary affidavit in connection with this proceeding. 29. It is, no doubt, true that a provision for reciprocal recognition of the Act done by the foreign notaries, in our country, was incorporated in Section 14 of the Notaries Act which runs 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 purpose of that country or place, the Central Government may, by notification in the Official Gazette, declare that the Notarial Acts lawfully done by the notaries within such countries 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. 30. Considering the international recognition of the Notary in the modern world of commerce, industry and dealings between different nations and countries, this High Court in the aforesaid decision In Re: H.K. Ray (Pvt.) Ltd. (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 as per Section 14 of the Notaries Act, 1952. Directions were given to the Central Government to the Ministry of Home Affairs, Government of India, for taking necessary steps for issuing such notifications and for making relevant rules under Section 15 of the Notaries Act in this regard. 31. Under such circumstances, this Court cannot refuse to accept the said affidavit for want of notification under Section 14 of the Notaries Act, 1952. 32. Mr. Das Adhikary went a step further by submitting that since there is no evidence before this Court that the Notary Public before whom such affidavit was affirmed was duly authorised to administer the oath, such an affidavit cannot be accepted. This Court does not attach any importance to such submission of Mr. Das Adhikary, as it is the duty of the party who challenges such authority of the Notary Public to show that he was not authorised to administer oath. Mr. Das Adhikary fails to discharge his duties miserably in this regard. 33. In the facts and circumstances as above, this Court has no hesitation to hold that the supplementary affidavit filed by the petitioner can be accepted in connection with this writ petition. 34. Re : Ground No. (i):
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Alan Kaye vs Recovery Officer, Employees' ... on 24 March, 2006

I, however, find much substance in the submission of Mr. Das Adhikary with regard to the objection regarding the maintainability of this writ petition as referred to in ground No. (i). 35. Rule 36 of the Rules of the High Court at Calcutta relating to application under Article 226 of the Constitution of India provides that in respect of Appellate Side applications the Rules of the Appellate Side relating to civil revision cases shall apply mutatis mutandis in respect affirmation of affidavit. 36. Chapter IV of the Appellate Side Rules of the High Court at Calcutta deals with affidavits. Rule 27 and Rule 28 of the said Rules prescribe the modes as to how affirmation is to be done by the deponent with regard to the statement in the application. On perusal of the affidavit affirmed by the constituted Attorney of the petitioner, this Court finds that the affirmation was not made as per Rules 27 and 28 of the Writ Rules. The statements made by the petitioner in paragraphs 1, 2, 4, 5, 12 & 13 of the writ petition cannot be true to the knowledge of the deponent. The deponent has also not mentioned in the affidavit as to whether the statement contained in paragraphs 3 and 6 of the writ petition which according to the deponent are based on information derived from the advocate-on-record, are verily believed to be true by the deponent or not. Thus, it appears that the affidavit has not been affirmed as per Rules 27 and 28 of the Appellate Side Rules. 37. Furthermore, this is not an affidavit in connection with an interlocutory proceeding. The affidavit to this writ petition was affirmed by the constituted attorney of the petitioners. The constituted attorney has no personal knowledge of the statements made in the writ petition. Unless the writ petitioner who has personal knowledge affirms this affidavit, responsibility cannot be fixed to the petitioner in case any statement is ultimately found to be false, incorrect and/or misleading. In my view, the original writ petition should be affirmed by the writ petitioner himself or by any person who has direct acquaintance with the facts in issue in the proceeding. Thus, the affidavit is not in order. 38. However, these are all curable defects. As such, this Court cannot reject the writ petition for such defects without giving the petitioner an opportunity to cure such defect either by reaffirming the said affidavit or by filing a supplementary affidavit. 39. Accordingly, leave is given to the petitioner to remove the said defect in the affidavit to this writ petition either by reaffirming the said affidavit before the Commissioner or by filing a supplementary affidavit in this regard. Such defect should be cured positively within a period of three weeks from date, failing which the writ petition will stand dismissed, as the same is not in form. 40. The preliminary objections as mentioned above, are thus decided in the manner as aforesaid. 41. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

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