The author through this paper reviews the laws relating to notarization of foreign documents on Indian soil. This paper is restrictive to laws relating to notarization, when the foreign party is the one based in U.K.
THE NOTARIES ACT, 1952
This Section deals with the reciprocal recognition of the acts done by foreign notaries. Under the notification dated 18th August, 1960: This Section recognizes the existing reciprocity of notirial acts between India and the United Kingdom.
"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 recognized 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 recognized within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification."1
CODE OF CIVIL PROCEDURE, 1908
As stated under Section 139 of the Civil Procedure Code, it can be inferred that the Notary Public is not a person competent to administer oath to a deponent under that section.
"In the case of any affidavit under this Code-
(a) Any Court or Magistrate, or
(b) Any officer or other person whom a High Court may appoint in this behalf, or
(c) Any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent."2
APOSTILLE AND/OR LEGALIZE
In 1961, many countries joined together to create a simplified method of "legalizing" documents for universal recognition. Apostille is acceptable in 105 member-countries of the Convention. Apostille is done for personal documents like birth/death/marriage certificates, Affidavits, Power of Attorney, etc. and educational documents like degree, diploma, matriculation and secondary level certificates etc. Any document Apostilled in one member country is acceptable in all the other 104 member-countries, signatory to the referred convention of 1961 thus greatly simplifying the process of attestation by making it needless to get the documents attested in each or for each of the countries separately.3
Legalization: There are some countries that are not a part of the Convention. Therefore, the documents need to be legalized in such scenarios. The verification process is quite similar; however there is a requirement of an additional Embassy Legalization by the Consular Office of the country in which the document is to be used.
In other instances, there are countries that require further authentication for international acceptance of notarized documents over and above the Apostille.
BROOKE'S TREATISE (U.K.)
An excerpt from the Brooke's Treatise which is an authority used in English courts, must be quoted to bring clarity to the issue of apostille of affidavits.
"Where, therefore, an affidavit, affirmation, declaration, etc., is sworn or taken before any of the persons mentioned in this rule no verification of the seal or signature is necessary but where it is sworn or taken in a country not under the dominion of His Majesty, before a foreign notary, or before a person authorized by foreign law, the authority and the signature of the notary or other person must be verified. The verification required is a certificate annexed to the affidavit, or other document, certifying that the person before whom it was sworn or taken was duly authorized to administer oaths in the country in which it was sworn or taken and such certificate must be signed by a British Consul or Vice-Consul, or verified by the seal of the High Court or of a local court of record of the said country."4
DIPLOMATIC AND CONSULAR OFFICERS (OATHS AND FEES) ACT, 1948
"(1) Every diplomatic or consular officer may, in any foreign country or place, where he is exercising his functions, administer any oath and. take any affidavit and also do any notarial act which any notary public may do within a State; and every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in a State.
(2) Any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorized by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person."5
2. CASE LAWS
In Re: K.K. Ray (Private) Ltd.6 (15 March, 1967), Calcutta High Court
This case lays down the law on notarization of foreign documents. It basically deals with the question that whether the affidavits affirmed before a Notary Public of a foreign country can be accepted in the Indian Court. The court looks at the reciprocity provision under Section 14 of the Notaries Act. This case is important with respect to various statutes mentioned in the judgment and also because it reiterates the concept of apostille of foreign documents.
- Section 14 of the Notaries Act deals with the Reciprocity provision
- India and UK have an existing reciprocity provision
- The affidavits must be apostilled in India (right path)
Crocodile Int. Pte Ltd. And Anr. v. Lacoste S.A. and Anr.7, Delhi High Court
The parties in this case were engaged in a legal fight over the Trademark and Copyright in what the plaintiff has described as Crocodile device. The court also dealt with a rather interesting issue. One of the objections before the court was- "That the affidavit which had been executed on foreign soil had not been legalized nor apostilled hence was no affidavit in the eyes of law"8. The court dealt with this issue stating that Diplomatic or Consular Officers were empowered to administer oath and to take any affidavit and also to do the notarial act which a Notary public may do in the State where the Diplomatic or Consular service is functioning. The documents notarized by these officers were therefore deemed to be validly notarized in India. But the court further stated that "once a witness had appeared in the witness box on oath solemnly affirmed the contents of his affidavit which was tendered in evidence, the procedural irregularity in the notarization of the affidavit had disappeared"9.
- Affidavit drawn on a foreign soil must be apostilled for it to be considered as validly notarized in India.
- The document cannot be thrown out of the court just because it was not apostilled. It is a procedural irregularity which can be cured.
- By appearing before the court as a witness and solemnly affirming the contents of his affidavit which was tendered in evidence, the procedural irregularity in the notarization of the affidavit disappeared.
On the basis of the research stated above, the author concludes that the affidavit drawn by the Trademark Applicant, who is based in U.K, must have been apostilled in India for it to be considered as validly Notarized in India. But in accordance to the law laid down in the judgments stated above, this could be treated as a procedural irregularity which can later be cured.
1. SECTION 14, THE NOTARIES ACT, 1952.
2. SECTION 139, CIVIL PROCEDURE CODE, 1908.
3. Apostille, MINISTRY OF EXTERNAL AFFAIRS, See http://mea.gov.in/apostille.htm (last assessed on, May 9th, 2018).
4. BROOKE'S TREATISE, 8th Edition, Pg. 52-53.
5. SECTION 3, DIPLOMATIC AND CONSULAR OFFICERS (OATHS AND FEES) ACT, 1948.
6. 1967 37 CompCas 737 Cal.
7. FAO (OS) 110/2007.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.