Court Allows Petitioner to Rectify Defects in Writ Petition, Emphasizes Procedural Adherence

The court addressed objections regarding the maintainability of the writ petition and validity of supplementary affidavits, allowing the petitioner to rectify defects within a specified period, failing which the petition would be dismissed. The court emphasized procedural adherence and granted the petitioner an opportunity to correct identified issues.

---

---

Issues Involved:
1. Maintainability of the Writ Petition
2. Validity of the Supplementary Affidavit regarding Stamp Duty
3. Validity of the Supplementary Affidavit regarding Identification
4. Validity of the Original Affidavit under Rules 27 and 28 of the Appellate Side Rules

Detailed Analysis:

1. Maintainability of the Writ Petition:
The primary issue was the validity and legality of the notice of demand dated 8th August 2005. A preliminary objection was raised regarding the territorial jurisdiction of the court, as the cause of action and the office of the principal respondent were situated in Maharashtra, outside the jurisdiction of the Calcutta High Court. This objection was overruled on 10th January 2006, as a substantial part of the cause of action arose within the court's jurisdiction. Further objections included the improper affirmation of the writ petition under Order 19 Rule 3 of the Code of Civil Procedure and Rules of the High Court at Calcutta. The court found these defects curable and allowed the petitioner three weeks to correct them, failing which the writ petition would stand dismissed.

2. Validity of the Supplementary Affidavit regarding Stamp Duty:
The court initially required the supplementary affidavit to be stamped as per Section 18 of the Indian Stamp Act. However, upon reconsideration, it was determined that the supplementary affidavit did not constitute an "instrument" under Section 2(14) of the Act, as it did not create, transfer, limit, extend, extinguish, or record any right or liability. Additionally, even if it were considered an instrument, it would be exempt from stamp duty under Serial No. 4(b) of Schedule 1A, which exempts affidavits made for immediate court use. Citing precedents from the Allahabad and Rajasthan High Courts, the court held that the supplementary affidavit did not require stamp duty and recalled its earlier order.

3. Validity of the Supplementary Affidavit regarding Identification:
The objection was raised that the supplementary affidavit was affirmed before a Notary Public in England without proper identification of the deponent. The court found that identification is necessary only when the deponent is unknown to the Notary Public. Since the deponent was known to the Notary Public from a previous power-of-attorney execution, further identification was unnecessary. The court referenced Halsbury's Laws of England, which does not require identification in the jurat portion of the affidavit. The court also noted that affidavits sworn before Notaries Public outside India are admissible under Section 82 of the Indian Evidence Act and the Original Side Rules of the High Court.

4. Validity of the Original Affidavit under Rules 27 and 28 of the Appellate Side Rules:
The court found substance in the objection regarding the affirmation of the original affidavit. The affidavit was not affirmed according to Rules 27 and 28, as the deponent did not properly indicate the source and belief of the statements made. Additionally, the affidavit was affirmed by a constituted attorney without personal knowledge of the facts, which is not permissible for non-interlocutory proceedings. The court allowed the petitioner an opportunity to cure these defects within three weeks by reaffirming the affidavit or filing a supplementary affidavit.

Conclusion:
The court addressed multiple preliminary objections regarding the maintainability of the writ petition and the validity of the supplementary affidavit. It concluded that the petitioner could cure the defects in the affidavit within a specified period, failing which the writ petition would be dismissed. The court's detailed analysis ensured adherence to procedural requirements while allowing the petitioner an opportunity to rectify the identified issues.

---