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Alan Kaye Versus Recovery Officer, Employees'

2006 (3) TMI 770 - CALCUTTA HIGH COURT

W.P. No. 21391(W) of 2005 - Dated:- 24-3-2006 - J Bhattacharya,J. For Appellant: Arijit Chowdhury, Arunava Ghosh, Soumya Majumdar and Sudhangshu Sil, Advs. For Respondents: Ashok Das Adhikary and Sandip De, Advs. JUDGMENT Jyotirmay Bhattacharya, 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 .....

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rt, 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 .....

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tion, 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 ult .....

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ruary, 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 ₹ 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, .....

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mping 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 creat .....

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t 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 .....

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ection 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 Mr. Das Adhikary, the said supplementary affidavit cannot be received and/or made part of the record unless it fulf .....

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d 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 .....

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r 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 sw .....

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d 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 s .....

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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 th .....

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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 af .....

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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. .....

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r 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 Commis .....

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ponent 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. 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 .....

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ide 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 af .....

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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 notificati .....

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n 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 Pub .....

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that the supplementary affidavit filed by the petitioner can be accepted in connection with this writ petition. 34. Re : Ground No. (i): 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 applicati .....

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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 .....

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