Calcutta High Court
Chandra Proteco Limited vs Hopgoodganim on 23 April, 2015
Author: Biswanath Somadder
Bench: Biswanath Somadder
ORDER SHEET
CP No.153 of 2015
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
IN THE MATTER OF:
CHANDRA PROTECO LIMITED
AND
HOPGOODGANIM
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
Date : 23rd April, 2015.
Ms. Manju Bhuteria, Advocate for the petitioning creditor.
Mr. Rahul Ginodia, Advocate for the company.
The Court : This winding up petition has been taken out by one HopgoodGanim, which claims to be a registered partnership firm under the laws of Australia, having its office in Brisbane in the State of Queensland at Australia. The affidavit verifying the petition appears to be affirmed by one Brian Moller and the affirmation has taken place before a Notary Public at Queensland, Australia.
It is submitted by the learned advocate representing the petitioning creditor that after it was notarised, an 'Apostille' certificate has been issued in respect of the said document by the Department of Foreign Affairs and Trade, Brisbane, based on an International Convention dated 5th October, 1961.
The 'Apostille' certificate is a standard certification provided under the Hague Convention only for the purpose of authenticating documents used in 2 foreign countries. The question, however, is not with regard to the genuineness or authenticity of the foreign document. The question is, whether this Indian Court can recognise a notarial act which took place before a Notary Public at Queensland, Australia. This is required to be considered first, even before this Court can go into the genuineness or authenticity of the foreign document. The answer to this question is clearly provided under section 14 of the Notaries Act, 1952, which was considered by this Court in the case of Rei Agro Ltd. And UBS AG & Ors. reported in AIR 2015 Cal 54. It has been observed therein, inter alia, to the effect that for an Indian Court to recognise a notarial act done by a foreign notary, it is imperative for the Central Government to issue a notification under section 14 of the Notaries Act, 1952, declaring that the notarial acts lawfully done by the foreign notary (in this case, the Notary Public at Queensland, Australia), shall be recognised within India for all purposes, or as the case may be, for such limited purposes as may be specified in the notification. In other words, unilaterial recognition by an Indian Court of a notarial act done by a foreign notary is impermissible in the absence of reciprocity of recognition, as contemplated under section 14 of the Notaries Act, 1952. The reason is, if it is otherwise, the sanctity of the sovereign power being exercised by an Indian Court will be compromised.
In such circumstances, this Court grants an opportunity to the petitioning creditor to produce the notification of the Central Government in the Official Gazette granting recognition to the notarial acts done by the Notary 3 Public at Queensland, Australia, within a fortnight from date, failing which this application will be liable to be dismissed.
Let this matter appear for further consideration under the same heading, a fortnight hence.
(BISWANATH SOMADDER, J.) pa/kc