2016 (4) TMI 1404 - HC - Indian Laws

Court invalidates order due to lack of authentication on notarial certificate from Bangladesh. Parties can refile within two months.

Salim Badsha Versus Md. Naziruddin Sk. and Ors.

The Court set aside the lower court's order due to the lack of Indian Embassy authentication on the notarial certificate from Bangladesh, rendering it ... Legality of power of attorney, which was admittedly executed in Bangladesh, in India - authority to file an application under Section 47 of IBC - whether this Court can recognize a notarial act, which took place before a notary public at Bangladesh? - HELD THAT:- The Indian Evidence Act was enacted in 1872 and thereafter Notary Act was enacted. Therefore, provision of Section 85 of the Indian Evidence Act cannot be mechanically applied here, without considering Section 14 of the Notary Act, 1952 - Section 85 of the Indian Evidence Act cannot be read in isolation and it is to be considered along with Section 14 of the Notary Act 1952. In the case in hand, the opposite party has produced the notarial certificate before the Court below but that is not authenticated by Indian Embassy. Learned Counsel appearing on behalf of the opposite party could not furnish any notification published by the Central Government in the official gazette that the notarial acts lawfully done by the notaries of Bangladesh 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. Therefore, learned Court below's order is demonstrably unsustainable. The instant revisional application is a prematured one. Accordingly, it is dismissed at this stage. Issues:Challenging legality and validity of Order No. 111 dated 06.05.2014 in Partition Suit No. 66 of 2000 - Alleged power of attorney executed in Bangladesh, applicability in India, requirement of authentication by Indian Embassy, stamp duty liability, recognition under Indian Evidence Act and Notary Act.Analysis:1. The petitioner challenged the order based on the alleged power of attorney's legality and applicability in India, emphasizing the need for authentication by the Indian Embassy. The petitioner argued that the power of attorney holder lacked authority for certain applications under the Code and stressed the importance of Indian Embassy authentication for legal recognition.2. The Court observed that the lower court focused on stamp duty liability due to the power of attorney being executed outside India but failed to consider if authentication was necessary for a document executed in Bangladesh. This raised questions regarding the authentication requirements for foreign documents used in India.3. The respondent's counsel cited Section 85 of the Indian Evidence Act, asserting the admissibility of the power of attorney in evidence. The petitioner's main contention was that the power of attorney should not be given effect to, indicating a dispute over the document's legal standing.4. Section 85 of the Indian Evidence Act was analyzed, highlighting the presumption of validity for documents executed and authenticated by specific authorities. The petitioner argued that the notarial certificate from Bangladesh lacked validity without Indian Consul authentication, emphasizing the importance of proper authentication under relevant legal provisions.5. The Court examined the alleged power of attorney, noting its notarization in Bangladesh by specific individuals. This scrutiny aimed to establish the document's authenticity and legality, especially concerning its execution outside India.6. The pivotal issue revolved around whether the deponents were duly authorized, prompting a consideration of recognizing notarial acts from Bangladesh. The Court emphasized the need to address this question before assessing the document's genuineness and authenticity.7. The respondent's counsel invoked Section 85 of the Indian Evidence Act, emphasizing its application alongside Section 14 of the Notary Act, 1952. The interplay between these legal provisions was crucial in determining the document's recognition and admissibility in Indian courts.8. Considering Section 14 of the Notary Act, 1952 alongside Section 85 of the Indian Evidence Act was deemed essential, highlighting the need for a comprehensive legal analysis regarding the recognition of notarial acts from foreign jurisdictions.9. The Court found the notarial certificate from Bangladesh lacked Indian Embassy authentication, rendering the lower court's order unsustainable. The absence of a Central Government notification recognizing Bangladeshi notarial acts within India invalidated the document's legal standing.10. The Court set aside the lower court's order but clarified that the dismissal under Order 1 Rule 10(2) of the Civil Procedure Code would not prejudice the opposite parties' rights to file a fresh petition meeting specified requirements within two months. Compliance with authentication standards was crucial for future petitions.11. The revisional application was dismissed as premature, with liberty granted for refiling if necessary. The judgment's copy was directed to be sent to the lower court for appropriate action, ensuring parties could obtain certified copies upon request.