Bombay High Court: The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., requested the Department of Legal Affairs to give due consideration to this Court’s Order and the Report dated 9-12-2021 submitted by Nausher Kohli, Advocate whilst enacting the Draft Bill.
Amongst the various functions of a Notary, perhaps the most important was that of attesting signatures on documents. It was aimed at reducing fraud/misrepresentation. However, now it has been observed that documents are being notarized by a Notary in the absence of the signatory.
Malpractice by Notaries
Further, it was stated that, quite often, the document to be notarized is sent to a Notary who then notarizes the document in the absence of the signatory to the document. There are multiple way in which the said malpractice is conducted. A Notary often leaves a blank row in his / her Register which is filled subsequently. More often than not, the person signing the Register is different from the person who signed on the document to be notarized, or the signatory to the document affixes his signature subsequently,
It is distressing to note that in some cases, even Advocates support such illegal practices by approaching the Notary Public to notarise a document/affidavit to be filed in a judicial proceeding without being accompanied by the person whose signature has to be affixed in presence of the notary.
In the present matter, whlist notarizing documents such as an appeal, it had been observed that the Notary did not thoroughly check the Exhibits /total number of pages and mechanically proceeded to notarise such Court filing.
Another challenge faced was that even after the registration of a Notary is suspended/cancelled, such Notary continues to notarize documents. Moreover, persons not registered under the Act also notarize documents.
Further, the Bench stated that, the Courts when confronted with the conduct as discussed, must proceed to deal with all the parties responsible for the same, strictly and take them to task, in order to prevent the recurrence of the same.
Amicus Curiae, Nausher Kohli brought to the notice of the Court that various Courts across India encountered instances of misuse/mischief by parties/Advocates and Notaries.
Recently, it was observed that the Notaries started notarizing documents from vehicles in a public parking lot instead of an office/chamber.
“…Notaries have been operating from public taxis around the vicinity of this Court.”
“…several photographs of such vehicles/public taxis have been produced before us, only by way of illustration we are producing hereunder three photographs which shows to what extent the legal profession has degraded causing anguish not only to the judiciary but also lowering the dignity of the profession in the eyes of general public / common man.”
High Court remarked that, it has been told that many Advocates who are Notaries have due to the pandemic, surrendered their office premises which they were using at licensees, and are carrying on their job of notarizing documents in the aforestated manner there are several notaries who have been operating from private vehicles and taxis much before the pandemic.
“…though we have full sympathy for the Advocates who do not have their offices of their own to function from, we do not believe that the dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets.”
Elaborating further, Bench remarked that it was unable to understand how the Municipal Corporation of Greater Mumbai and the Appropriate Authority have not taken any action till date in regard to the said function of Advocates and Notaries from parking area and streets manned by the MCGM.
Subsequent to the passing of this Court’s Order, Mr Kohli brought to the Notice of this Court that Notaries (Amendment) Bill, 2021 (Draft Bill) was published and it invited the comments and suggestions.
In view of the said development, this Court alongwith Mr Kohli and other Advocates engaged in discussions and exchange of suggestions, based on which Mr Kohli prepared a Report proposing the suggestions to the Draft Bill.
Bench opined that undoubtedly, the Act and Rules framed thereunder were in pressing need for major reform.
“We are, on a daily basis, coming across matters wherein Notaries, Advocates and Parties are mischievously getting documents notarized.”
High Court added that, the Draft Bill had been published proposing digitization of the records of a Notary and digitization and automation of notarial work undertaken by Notaries.
Considering the Department of Legal Affairs has invited comments and suggestions on the Draft Bill, Court deemed it appropriate that the Registrar General of this Court forward a copy of this Order along with the Report dated 9-12-2021 submitted by the Advocate Nausher Kohli to the Department of Legal Affairs for their due consideration. [Samina Arif Khan v. Dhanlaxmi Chandu Devrukar, WP No. 4947 of 2021, decided on 18-2-2022]
Advocates before the Court:
Mr. Ashok Dhanuka alongwith Mr. Aiqan Memon instructed by W3Legal, LLP for the Applicant in IAST 18348 of 2021.
Mr. Rohan Barge, for the Petitioner in WP 4947 of 2021.
Mrs. S.D.Vyas, ‘B’ Panel Counsel for the State in WP 4947 of 2021.
Mrs. Aruna Pai, Public Prosecutor, for the State in SMCP 1 of 2021. Mr. D.P.Singh, for Union of India.
Mr. Sarif S. Khan, for Contemnor No.1 in SMCP 1 of 2021.
Mr. Mohd. Muqim Khan, for Contemnor No.2 in SMCP 1 of 2021. Mr. Somnath Anchan for the auction purchaser.
Dr. Birendra Saraf, Senior Advocate alongwith Mr. Karl Tamboly, Mr. Satchit Bhogle instructed by Mr. Khan Javed Akhtar, for the Appellant.
Mr. Sharan Jagtiani, Senior Advocate alongwith Ms. Surabhi Agrawal, Mr. Kashish Mainkar, Ms. Treesa Ann Benny instructed by Wadia Ghandy and Co., for the Respondent in Appeal (L) NO.23906 of 2021. .
Mr. D.N.Kher, Court Receiver with Mr. A.B.Malwankar, Section Officer, present. Mr. Nausher Kohli, Amicus Curiae alongwith Mr. Akash Agarwal present.