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2006 (3) TMI 770

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..... 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 .....

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..... annot 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 .....

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..... s 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 petiti .....

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..... blic 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 per .....

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..... 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 th .....

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..... 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 .....

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