I. Introduction
i. Affidavit: Meaning and Purpose
“An affidavit is sworn, written statement, confirmed by oath or affirmation, voluntarily made by an affiant or deponent, administered or notarized by a person authorized to do so by law”.[1]
The amendment in the year 1999 in the Code of Civil Procedure, 1909 mandated filing of a notarized affidavit under Section 26(2) and Order VI Rule 15(4) in support of the pleadings before a Court by a person. Hereafter, every pleading or applications filed therein before the Court has required a party to attach its affidavit notarized by a Public Notary or Oath Commissioner appointed under the Notaries Act, 1952. A notarized affidavit attracts rebuttable presumption of the genuineness of the execution of the document or affidavit under per Section 8 of the Notaries Act as well as Rule 11 of the Notary Rules, 1956.[2]
The High Court of Kerala in its decision appositely noted that “the purpose of incorporating these provisions of filing an affidavit along with the plaint is to give sanctity for the nature of pleadings made by the party and avoid parties making false allegations and averments in the pleadings, which the court feels later found to be false enable the court to proceed against them for filing false affidavit”.[3] The signature of Oath Commissioner or notarization gives legal recognition to the affidavit. Similarly, the High Court of Delhi appositely held that “without the attestation of the Oath Commissioner, Courts cannot rely on the document for it lacks that the required sanction affirming its authenticity…….an affidavit having no attestation is not an attestation in the eyes of the law”.[4]
ii. Apostille: Meaning and Purpose
However, filing of affidavits notarized by Notary Public recognised under the Notaries Act, 1952 is viable only for a party who resides and initiates proceedings in India, being in India. Such a party can get the affidavit or any other document notarized by a Notary Public appointed under the Notaries Act, 1952. A difficulty arises when a party is outside India and has filed an affidavit or document executed outside India and notarized by a foreign Notary Public or Oath Commissioner.
To facilitate the process of authentication and presuming the validity of the documents or the affidavits executed in a foreign country and notarized by a foreign Notary Public, and replacing the delay causing process of dual legalisation by the Foreign Ministry of the originating country and of the host country, the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, 1961, (“the Hague Convention”) devised a way called “apostille”. India became member of the Convention in the year 2005. The Convention mandates member countries to presume documents attested by a Notary Public of member country as valid if documents or affidavits have been apostilled in the manner provided by the member country. Thus, to presume a document or affidavit executed outside genuine mere notarization is not sufficient. It is the only notarization in nature of apostille, which means some additional step after notarization to deem a document or affidavit authentic are required.
Simply speaking, an apostille is like a general notarization but with added verification by designated authorities in a member-country in compliance of the Hague Convention, 1961. Post such verification by designated authorities, a document is deemed as genuine like a document or affidavit executed and attested in the country where it is to be produced, i.e. India. The apostille certification adds authenticity to a document attested by foreign Notary Public like a Notary Public appointed under the Notaries Act, 1952 does to an affidavit or document executed in India.
Thus, apostille “is precisely to provide facilities of receiving affidavits, documents, protests of bills of exchange and other commercial papers that this institution of Notary Public grew up to fulfil a very practical need. Unnecessary or illogical impediments should not be put on his way”.[5]
Several issues concerning to recognition of the genuineness of the documents or affidavits attested by foreign oath commissioner have arisen and settled by the Court in India. The High Court of Calcutta in one of the initial case settled whether an apostilled document be refused to be recognized in India because the Government of India has not notified U.S.A as a reciprocating country under Section 14 of the Notaries Act, 1952.[6] Similarly, the High Court of Allahabad determined whether a Power of Attorney executed in a foreign country can be presumed valid under Section 85 of the Evidence Act, 1872. Counsel for the Petitioner had contended that the presumption which is embodied in Section 85 of the Evidence Act is available only to Notaries Public as defined by the Notaries Act which the Court refused to admit.[7]
II. Scope
In the present article, the author will first, attempt to appreciate whether an apostille of document or affidavit is pre-requite for a Court to deem their execution as authentic. Second, whether a defect or non-filing of apostille lead to rejection of a pleading or the defects are curable? Last, whether a party can seek exemption from filing an apostilled affidavit or documents.
III. Whether an apostille of document or affidavit is pre-requite for a Court to deem their execution as authentic?
It is a cardinal principle of interpretation that to deduce the legislative intent the Court must give regard to the words used by the legislature and the object of the provision or a Statute. To appreciate the first question it is pertinent to first appreciate whether notarization of a document or pleading is essential pre-requite in a suit or other proceeding.
Section 26(2) of the Civil Procedure Code, 1909 mandates that facts in a plaint shall be proved by affidavit. The word “shall” generally raises a presumption of a provision being mandatory. However, the Court determines its meaning depending on the context in which it is used in a provision.[8] The Supreme Court while interpreting the word “shall” in Order VIII Rule 1 held that filing of the written statement within ninety days is not mandatory.[9] The Court held that the law of procedure should not generally be interpreted to deny access to justice.[10] Thus, the word “shall” cannot be interpreted to mean that even if a party reasonably justifies delay in filing the written statement, a written statement of a party cannot be admitted after the expiry of ninety days. Similarly, while appreciating validity of insertion of section 26(2) in the CPC, the Court held that the argument that “requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings” is inadmissible.[11] Thus, it can be concluded that filing of notarized documents or affidavit is a mandate of the legislature and cannot be by-passed.
Like section 26(2) of the CPC rules of all the High Court Rules mandate the filing of apostilled pleadings or documents if executed outside India. For example, rules of the Delhi High Court mandate that “affidavits signed outside India, shall be signed and apostilled in accordance with the provisions of the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 1961”.[12]
Thus, as above-said, the use of the word “shall” in provision generally creates a rebuttable presumption in favour of it being mandatory. Like notarization of an affidavit in India, apostilization of document or affidavit raises a presumption in favour of their genuineness. The object behind the requirement of the apostille is to authenticate pleadings or affidavit in a suit or application or documents filed which are executed outside India and notarized by a foreign Notary Public. This purpose makes apostille as mandatory and indispensable. It is a mandatory pre-requisite for a party to call upon the Court to place reliance on a document or affidavits executed and notarized outside India.
IV. Whether the defects or non-filing of apostilled documents or affidavit can lead to rejection of plaint/pleading or reliance on a document?
As submitted above, the requirement of the apostille is mandatory. However, it pertinent to appreciate whether a non-compliance to the process either partially or wholly will lead to rejection of the plaint or reliance on a document?
It is pertinent to note that filing of affidavits, verification, forms etc. belongs to the realm of the procedure.[13] Defects therein are generally curable. It is a well-settled principle of law that laws of procedure are meant to further the justice and not to curtail. They are not tools which circumvent justice, if substantially complied. They should generally be construed liberally. Thus, a plaint/pleading cannot be rejected for the mere absence of affidavit or defect in an affidavit at the first instance. Defects relating to affidavit are procedure are curable and cannot be used to defeat access to a right or remedy under any Act. Generally, a party is given an opportunity to cure the defect. If however, a party fails to cure the defect, a plaint/pleading can be rejected. The Supreme Court appositely noted that “the Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition”.[14]
Similarly, the apostille belongs to the sphere of the procedure. In a case before the High Court of Delhi a party had contended 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”[15]. The Court held that “objections of the defendant with regard to the admissibility and the mode of proof of contents of the document is a matter which is purely procedural in nature and does not determine any right or obligation in the suit pending”.[16] Thus, like affidavit, defects in apostille is curable and a plaint or pleading cannot be rejected for mere defect or the absence of apostilled document on the very first instance. In the peculiar facts of the Crocodile Int. Pte Ltd case (supra) the party had not filed apostilled document and the opposite party has not objected to same until the deponent party appeared in the witness box and solemnly affirmed on oath. The Court observed that “the witness had appeared in the witness box and 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”.[17]
Thus, an apostille is an important step to nurture authenticity to the execution of the document or affidavit. Apostille creates a presumption of authenticity. With authenticity as an effect of apostille certification, the process cannot be bypassed, though the defects found therein can be cured by parties with the permission of the Court. If a party does not file an apostilled affidavit or cure the substantial defects therein within a requisite time, the Court can reject the pleadings made or reject the reliance placed on a document. It has been aptly noted that the apostille relates realm of the procedure but “no doubt that does not mean that law of the Courts should not ensure reasonable authenticity and dependability of notarial acts”.[18] Thus, the non-apostilling of a document or affidavit to pleading in the court of law is a curable pre-requisite.
V. Can a party file for the exemption application from filing an apostilled affidavit or document?
In light of the above-said, a requirement of apostilled document or affidavit cannot be waived by the Court as it imbibes authenticity in a document or affidavit. In case of its absence, the proceedings relating to averments made in the un-apostilled affidavit or reliance placed on documents cannot be upheld unless an apostilled document or affidavit is filed or any defect in an existing document or affidavit is cured or unless the party deposes same on oath and no need of apostille remains i.e. Crocodile Int. Pte Ltd case (supra). Failure to do any must make the proceedings non est or must be rejected. The High Court of Kolkata recently appositely held that though “unnecessary or illogical or irrational or unmeritorious obstructions and impediments should not be put on its way. This, however, does not mean that the court would accept a notarial attestation which does not conform to the law or without ensuring reasonable authenticity and dependability of Notarial Acts, like the requirement under Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948”.[19]
Thus, a party cannot seek exemption from filing apostilled documents or affidavit on the bare averment of additional or excessive costs or the time it will accrue on a party.
VI. Conclusion
Thus, unless an apostilled affidavit is filed, the Court cannot place reliance on the content of an affidavit executed outside India. A court cannot proceed solely based on a un-apostilled affidavit. It is apposite to say that apostille like affidavit can be cured subsequently as it belongs to the realm of the procedure but filing an apostilled document or filing of a cured apostilled document is not a futile exercise. An apostilled document or apostilled affidavit is a pre-requisite to raise a rebuttable presumption of the genuineness to the execution of the affidavit or documents relied on by a party in a court proceeding. The procedural condition cannot be allowed to become a tool in the hands of the litigants.[20] The process though is hand-maid of the justice is not hand-maid of the discretion of a party. The parties cannot rely on a un-apostilled document or affidavit or seek exemption from filing of the apostilled documents.
[1] Annu Sharma, “Affidavit is a Sworn Written Statement” [03.02.2019], Accessible on https://taxguru.in/corporate-law/affidavit-sworn-written-statement.html.
[2] Thiyagarajan v. Muthusamy Gounder, (2013) 3 MLJ 159, para. 38 & 39.
[3] V.P. Abdul Kareem v. Mehroof Manalody, (2016) SCC OnLine Ker 24982, para. 10 & 14.
[4] Salazar Luis Antony Marques v. Mohd. Haroon Japanwala & Ors., (2015) 217 DLT 261, para. 13.
[5] In re: KK Ray Private Ltd., AIR 1967 Cal 636, para. 35.
[6] Id, para. 36 & 38.
[7] Abdul Jabbar and Ors. v. 2nd Additional District Judge, AIR 1980 All 369, para. 15 & 16.
[8] Salem Advocate Bar Association v. Union of India, (2003) 1 SCC 49, para. 20.
[9] Id, para. 21.
[10] Id, para. 18 & 20.
[11] Id, para. 4.
[12] Rule 7(3), Chapter XIX, the Delhi High Court Original Side Rules, 2018.
[13] Girish Bhagwatprasad Huf v. Bhupendra Bhagwatprasad Patel, 2015 SCC OnLine Guj 6109, para. 55(f).
[14] M/S. Associated Journals Ltd v. The Mysore Paper Mills Ltd, (2006) 6 SCC 197, para. 22.
[15] Crocodile Int. Pte Ltd. and Anr. v. Lacoste S.A. and Anr., 2007 SCC OnLine Del 1690, para. 2.
[16] Id, para. 16.
[17] Id, para. 17.
[18] supra note 5.
[19] Jaldhi Overseas Pvt. Ltd. v. Bhushan Power & Steel Limited, 2017 SCC OnLine Cal 4414, para. 42.
[20] Rajneesh Goyal v. Dsj Communications, CS (OS) No.1896 of 1999; MANU/DE/0764/2008, para. 11.
The article has bee authored by the founder of the Litigating Hand.