Bombay High Court
J.G. Hegde vs R.D. Shukla on 17 September, 2003
Equivalent citations: AIR2004BOM55, 2004(2)BOMCR106, 2004(1)MHLJ973, AIR 2004 BOMBAY 55, (2004) 17 ALLINDCAS 645 (BOM), (2003) 4 ALLMR 822 (BOM), (2004) 1 CIVILCOURTC 700, (2004) 1 MAH LJ 973, (2004) 2 BOM CR 106
Author: D.G. Karnik
Bench: D.G. Karnik
ORDER D.G. Karnik, J.
1. Heard the learned counsel.
2. The plaintiff has taken out this summons for judgment in the suit filed by him for recovery of a sum of Rs. 2,18,000/- allegedly advanced by him to the defendant as a friendly loan together with interest thereon at 15% p.a. amounting to Rs. 98,000/-. In the plaint, the plaintiff has stated that he is a Doctor by profession and is a social worker and a member of the Congress Party. He knew the defendant who was also a worker of the Congress Party. The defendant was carrying on business in partnership in the name and style of M/s. Shivarri Garments, and represented to the plaintiff that he had suffered losses in the partnership business and requested for a friendly loan for discharging his liabilities and paying of the share of his partner. The plaintiff took pity on the defendant and advanced him a friendly loan of Rs. 2,18.000/-which the defendant promised to repay with interest at 15% p.a. within a period of three years. The defendant has executed a writing styled as "Affidavit cum Indemnity Bond" dated 27th April 1998 duly affirmed before a Notary (Mr. D. J. Khatri) admitting his liability to repay Rs. 2,18,000/ - with interest at 15% p.a. Xerox copy of the writing styled as "Affidavil-cum-Indemnity Bond" is annexed to the plaint as Exhibit-A.
3. The defendant has resisted the claim of the plaintiff by filing an affidavit in reply sworn in on 19th April 2000. The defendant has denied that he had incurred losses in the business and has further denied of having approached 1 he plaintiff for a friendly loan of Rs. 2,18,000/- He has denied receipt of the loan, and has specifically denied having executed "Affidavit-cum-Indemnity Bond" dated 27th April 1996, and has alleged that it was a forged and manipulated document. He has stated that he was a chief polling agent of the plaintiff, who was contesting assembly elections as a congress party candidate in the year 1996, and in connection with the work of the polling agent the defendant had signed some blank papers which the plaintiff appears to have used as a continuation sheets for fraudulently preparing "Affidavit-cum-Indemnity Bond" dated 27th April 1996, In paragraph No. 12 of the affidavit, the defendant has reiterated his stand that the affidavit-cum-indemnify bond at Ex-hibit-A to the plaint was fabricated and forged document.
4. The plaintiff has filed an affidavit in rejoinder sworn on 29th April 2002 denying the allegations of the defendant. The plaintiff has annexed to the affidavit in rejoinder two more documents, first a dissolution of the partnership between the defendant and Mr. Shelar and the second, xerox copy of a deed of partnership dated 27th April 1996 between the plaintiff and the defendant which has been attested by the same Notary, Mr. Khatri.
5. When the Summons for Judgment first came up for hearing the learned counsel for the defendant reiterated the stand that the document styled as "Affidavit-cum-Indemnity Bond" purportedly executed by the defendant on 27th April 1990 was forged and fabricated, He further submitted that the second document purporting to be a deed of partnership dated 27th April 1996 was also forged and fabricated. The learned counsel stated that the defendant had never been to the Notaiy Mr. D. J. Khatri for the purpose of execution of the document and the attestation by the Notary purportingly made on 27th April 1996 was also a fabricated attestation made in connivance with the plaintiff without the defendant being ever present before the Notary.
6. In view of the specific denial by the defendant about the execution of the documents as well as attestation by the Notaiy, notice was issued by this Court to Mr. D. J. Khatri to remain present in the Court along with relevant notarial registers. From what is stated in the foregoing paragraphs that the execution of the "Affidavit-curn-Indemnity Bond" is doubtful and the notarisation is not at all trustworthy giving rise to triable issues. The defendant must, therefore, be given an opportunity of defending the suit unconditionally. Accordingly, unconditional leave is granted to the defendant to defend the suit. The suit shall stand transferred to the list of commercial causes. The defendant to file written statement within a period of 12 weeks.
Mr. Khatri, Notary was granted leave to be heard, through a lawyer in view of the fact that certain observations adversely affecting him were likely to be made in the judgment. Mr. Khandeparkar representing the Notary was heard.
7. On the notice issued by this Court, Mr. D. J. Khatri, Notary remained present in the Court but at the first instance without the relevant notarial registers. He stated that the notarial registers were not preserved by him in view of a circular said to have been issued by Bombay Notaries Association, to the effect that it was not necessary for the notaries to preserve the notarial registers beyond a period of three years. Obviously, any association of notaries has no power to issue such circular and if such circular has really been issued, it is null and void. On questioned by the Court as to what he had done to the notarial registers for the year 1996, Mr. Khatri sought time and after couple of adjournments produced the following original notarial registers.
1) Notarial Register for the period 25-1-95 to 15-5-1996.
2) Notarial Register for the period 16-5-1996 to 31-12-1997.
3) Notary Register for the period 2-1-98 to 27-4-1999.
4) Notary Register for the period 29-4-99 to 30-12-2000.
5) Notary Register for the period 2-1-2001to 19-3-2002.
(The original registers be returned to Mr. Khatri who is directed to preserve them) Entries of attestation and notarisation of the "Affidavit-cum-Indemnity Bond" dated 27th April 1996 (Exhibit-A to the plaint) as also the deed of partnership dated 27th April 1996 between the plaintiff and defendant (annexed to the affidavit in rejoinder) are not found in the relevant notarial register. Mr. D. J. Khatri filed an affidavit dated 6th August 2003, stating that the entry In respect of the Affidavit-cum-indemnity Bond dated 27th April 1996 is not made in the notarial register and offered a lame explanation that "probably in the hurry of professional work, the "Affidavit-cum-Indemnity Bond" remained to be noted in the notarial registers. Mr. Khatri, however, has not offered any explanation about the absence of entry regarding attestation of the second document viz. deed of partnership. The learned counsel for the plaintiff stated that one more document was also executed on the same day by the defendant No. 2 and was also notarised by Mr. D. J. Khatri. The entry regarding the third document attested by the notary Mr. Khatri on 27th April 1996 is also not found in the notarial register. The explanation offered by Mr. Khatri is not at all satisfactory.
8. The perusal of the registers shows that the notary has also not complied with the provisions of Rule 11 of the Notaries Rules, 1956. Under Rule 11, every Notary is required to maintain a register in Form No. XV to the Rules. As per Column No. 1 of the Form every notary is required to give a serial number to each of the document in respect of which notary performs a notarial act. Fee charged is required to be mentioned in Column No. 8 and the receipt number of the receipt issued for the fee charged is required to be mentioned in Column No. 9. Giving of Serial number for each document has a dual purpose. One is to Identify every document with reference to the serial number and second is to prevent execution of an anti-dated document by inserting an entry in between two successive entries which are serially numbered. I noticed that Mr. Khatri has involved a novel method of giving serial numbers in Column No. 1 of the registers. Numbers are not serially from beginning to the end of the register, but for every month, fresh serial number beginning from Sr. No. 1 are given. Often at the end of the month, a page or a half of the register is kept blank. This would obviously enable him to make an anti-dated entry of any document on the last day of any month in the space left out in the register and give next Sr. No. of that month. It is true that a transverse line has been drawn at the blank space left at the end of the month but obviously the notary had considerable time between the notice of the Court and the production of the notarial registers and there is no way to find out whether these transverse lines were drawn at the end of the month regularly or only before the registers were produced in the Court. The last of the registers beginning from 2nd January 2001 and ending on 19th March 2002 was inspected by the Joint Secretary, Government of Maharashtra probably under Sub-rule (5) of Rule 11 of the Notaries Rules, 1956. As many as five discrepancies were noticed by him including that the Notary had kept several blank pages in this register, at the end of each month, These blank pages obviously would have enabled him to make an anti-dated entry of a notarisation of a document in the blank space.
9. Mr. Khatri does not appear to have issued any receipt for the fees charges by him. Column No. 9 of Form No. 15 requires a notary to write the serial number of the receipt issued for the fee charged. In the present case. Column No. 9 is not filled in at all. This is probably because if the receipt is issued, notary would not be able to charge fees higher than the fees prescribed. Issuing of a receipt and mentioning the serial number of the receipt is one of the safeguards provided in the Notaries Rules, 1956 for proper conduct of the Notaries.
10. Several Courts throughout the length and breadth of this country have noticed on several occasions, irregularities made by Notaries in performing the notarial duties and maintenance of the notarial registers. In Phagu Ram v. State of Punjab reported in AIR 1965 Punjab 220, the Punjab High Court noticed that the Notary in that case had not issued receipts in respect of fees received by him. H. R. Khanna, J. (as his Lordship then was) observed at paragraph No. 8 of the judgment :
"In the circumstances the two fees in question should be deemed to have been received by the petitioner in his capacity as notary. As such the petitioner was bound to issue receipts in respect of the two fees in question and to make entries about them in his register of fees. The omission of the petitioner to do so, in the circumstances, would amount to an infraction of Clause (9) of Rule 11 reproduced above".
11. L. Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah , this Court held that a notary is required to make an entry of every notarial act including certifying a copy of the document to be a true copy in the notarial register. The Court also stressed the need for proper identification of the person who executed the document before a notary. The Court observed (paragraph No. 11 of the judgment) :
"It is the responsibility of a notary to satisfy himself that the original document intended to be executed before him was executed by the person concerned and not by someone else in the name of a different person. It is the responsibility of the notary to satisfy himself about the identity of the execution of the original document by making all reasonable inquiries including insistence of identification of a member of the public by a legal practitioner known to the notary. Unless the executant is known to the notary personally, the notary must insist on written identification of the executant by an advocate in order to minimise the possibility of cheating by personification. Negligence of a notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. If the work of comparison of copy of the document with the original and the prima facie scrutiny of authenticating the original involves labour for too little a fee, the person concerned need not opt to become a notary. Notaries formerly known as Notary-Public enjoy high status throughout the country and the Courts take judicial notice of the seal of the notary and presume that the document in question must have been certified as true copy by the notary after taking of all possible care by the notary in comparing the copy with the original and due verification of the identity of the executant and the person appearing before the notary for the certification."
12. In V. R. Kamath v. Divisional Controller, K.S.R.T.C. , the Karnataka High Court pointed out the necessity of making entries of all notarial acts performed by a notary serially by assigning separate serial number to each transaction.
13. In Dy. General Manager v. Sudarshan Kumar , the Supreme Court noted that the notaries had been misusing the liberty given to them by issuing false attestations and indiscriminately affirming even the affidavits filed in the Court, sworn by persons who have not been properly identified. The Supreme Court also directed a notice to be issued to the Notary to show cause as to why he should not be prosecuted and punished for attesting false affidavits of impersonators and why his licence should not be cancelled. The names of notaries attesting documents on behalf of impersonators was thus noticed by the highest Court in this country and that was not the first instance brought to the notice of the highest Court.
14. In the recent past. I had also noticed a false attestation made by another notary of a document which was not even entered in his register. It appears that despite the provision made in Sub-rule (5) of Rule 11 of the Notaries Rules, 1956, the Government has not appointed sufficient number of officers to inspect the registers of the Notaries and inspections are rarely made, if at all. I am informed at the bar that an officer is appointed only in the city of Bombay and in other cities, such officers are not even appointed and therefore, the registers of notaries which are expected to be inspected twice a year are not being inspected. Sub-rule (5) of Rule 11 reads thus :
(5) Every notary shall permit the District Judge or such officers as the appropriate Government from time to time appoints in this behalf to inspect his register at such times not often than twice a year, as the District Judge or officer may fix, District Judges or Officers appointed by the State Government will have power to lodge a report to the appropriate Government for taking action against a notary.
Sub-rule (5) requires inspection to be made by the District Judge or such other Officer as the appropriate Government may from time to time appoint. In view of several irregularities in the performance of notarial acts by notaries noticed by the Courts, a bit too often, it is necessary to issue directions for inspection of the notarial registers. Such inspection would expose, at least partly irregularities/ illegalities and would be a step towards ensuring proper ethical conduct by the notaries. In view of this, I issue the following directions.
(1) Until the State Government appoints an Officer in each District in which the notaries have been appointed to inspect the notarial registers, the District Judge shall cause to be inspected not more than twice a year (and at least once a year), notarial registers and records maintained by the notaries within his District. The inspection shall be carried out to ensure that the notaries maintain the registers and records provided in the Notaries Act 1952 and the Notaries Rules 1956. The Officer taking the inspection shall, among others verify and-make report on i) Whether the registers and records are maintained by the Notary as provided in the Notaries Act and Notaries Rules, ii) Whether all columns of the registers are properly written. iii) Whether all the notarial acts performed by the Notary are entered in the registers with proper serial numbers running continuously from beginning to the end of the register, iv) Whether there are any blank pages or whether any blank spaces have been kept in the register wherein it would be possible to make an anti dated entry, v) Whether the fee charged for every notarial act has been mentioned in column No. 8 of the register and whether charge is in accordance with Rule No. 10 of the Notaries Rules, vi) Whether receipts have been issued for the fees charged and serial number of the receipt is mentioned in column No. 9 of the notarial register. The notaries should maintain a receipt book with a counterfoil/duplicate and should obtain the signature of the person to whom the receipt has been issued on the counterfoil duplicate. The Inspecting officer may make a random check of some entries in the register with the corresponding counterfoils of the receipt book.
(2) If any discrepancy or misconduct on the part of a notary is noticed by the District Judge, he shall make a report under sub-
Rule 5 of Rule 11 of the Notaries Rules to the appropriate Government for taking appropri ate action against the notary concerned and shall also furnish a copy thereof to the no tary.
(3) Every notary shall submit in the first week of January every year a report to the Government as provided in Rule No. 14 along with a copy of the report of inspection made by the District Judge/Inspecting Officer under Sub-rule (5) of Rule 11.
(4) The Government shall take appropriate action against the Notary who is found to have been committed any misconduct and/or who, in the inspection carried out under Sub-rule (5) of Rule 11, is found to have committed any lapses after giving an opportunity of being heard to the notary concerned.
(5) The inspection should be carried out by the District Judges until the Government appoints appropriate Officers for canying out the inspection under Sub-rule (5) of Rule 11 of the Notaries Rules. A copy of this order be sent to all the District Judges in the State.