The Hindu Business Line : Notes on the notary

A NOTARY is a member of the public who is appointed by the Central/State Government on the recommendation of courts under the provisions of the Notaries Act LII of 1952.

According to the Oxford Dictionary, a notary — known also as notary public — means a person with the authority to draw up deeds and perform legal formalities.

The Central Government appoints notaries for the whole or any part of the country. And State Governments, too, appoint notaries for the whole or any part of the States.

Who can be a notary?

On an application being made, any person who had been practising as an advocate for at least 10 years is eligible to be appointed a notary. A period of seven years of practice is required if the applicant belongs to Schedule Caste/Schedule Tribe or other backward classes. For woman applicants, too, the minimum years of practice as lawyer is seven.

The applicant, if not a legal practitioner, should be a member of the Indian Legal Service or have held an office under the Central or State Government, requiring special knowledge of law, after enrolment as an advocate or held an office in the department of Judge, Advocate-General or in the armed forces.

Persons seeking appointment as notary should submit an application in the form of a memorial, as prescribed in the rules, to the competent authority of the appropriate government.

The competent authority, after holding such inquiry as it thinks fit and after giving the applicant an opportunity to make representation against objections (if received), will make a report to the Central or State Government. The application may either be allowed for the whole or any part of the area to which the application relates, or it may be rejected.

Basis for appointment

The competent authority, while making the recommendation for appointment as notary, has to consider the following aspects:

Whether the applicant ordinarily resides in the area in which he proposes to practice as a notary;

Considering the commercial importance of the area in which the applicant proposes to practice, the authority should take into consideration the existing number of notaries in the area in question and whether additional notaries will be required;

Should consider the fitness of the applicant as to his knowledge and experience of commercial law and, in case of a legal practitioner, his extent of practice, and so on;

Whether the applicant belongs to a firm of legal practitioners and, having regard to the number of existing notaries in that firm, whether it is proper and necessary to appoint any additional notary from that firm;

Where applications from other applicants in respect of the area are pending, whether they are more suitable than the applicant in question. On receipt of the report from the competent authority, the Government shall consider the report and allow the application in respect of the whole or part of the area, or reject the same.

If the application is allowed, the applicant becomes a notary and a certificate of practice will be issued to him and gazetted in the State or Central Gazette. His name will be entered in the Register of Notaries maintained by the Government

Certificate a must: The certificate will specify the period of practice. Previously it was three years and it is renewable on payment of requisite fee for renewal. Now the certificate is issued for five years. The fee for issue of first certificate of practice (first appointment as notary) is Rs 1,000 as per the amended rules and for renewal it is Rs 500.

A notary public in possession of certificate of practice in a particular area may apply for extension of his area of practice. An application should be made to the State/Central Government as the case may be. The Government, after considering the reasons set out in the application and other relevant factors, may pass an order extending the area of practice. The fees for extension of area of practice is Rs 750.

Every notary shall use a seal which should contain the name of the notary, the area of practice, registration number, name of the State, and, if the practice is all-India, the words `Government of India'.

No longer a notary

The Government can remove a notary's name from the Register under the following circumstances:

If the notary makes a request to that effect;

Has not paid the prescribed fee;

If he is an un-discharged insolvent;

Has been found, upon enquiry, to be guilty of professional or other misconduct; and

Does not get his certificate of practice renewed.

Check out your notary

No person shall practice as notary or do any notarial act under the official seal unless he holds a certificate of practice, issued to him in terms of the Act.

If a person falsely claims to be a notary without being appointed so or does a notarial act, he shall be punishable with imprisonment for a term up to three months or both.

The fees payable to notary are prescribed in the rules.

The notary is burdened with certain obligations as well. He should maintain a notorial register in the prescribed form He should disclose the date of appointment and date of certificate on the title page of the register.

He should permit the district judge or such officers to inspect his register.

He should submit to the Government in the first week of January of every year, an annual return of the notorial acts done during the preceding year as per the rules prescribed. He should have an office within the area mentioned in the certificate and a board having his name and his designation as notary.

Tapping the powers

A NOTARY, by virtue of his office, can:

Verify, authenticate, certify or attest the execution of any instrument;

Present any promissory note, hundi or bill of exchange for acceptance/payment, or demand better security;

Note/protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange, protest for better security, prepare acts of honour under the Negotiable Instruments Act or serve notice or such protest;

Note and draw up ship's protest, boat's protest or protest relating to demurrage and other commercial matters;

Administer oath to, or take affidavit from, any person;

Prepare bottomry and respondentia bonds, charted parties and other mercantile documents;

Prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;

Translate and verify the translation of any documents from one language into another;

Act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;

Act as an arbitrator, mediator or conciliator if so required; and

Any other act which may be described;

A frequently asked question, especially by the layperson, is: What is an affidavit? It is a sworn statement made in writing and the person signing an affidavit takes oath or affirmation before an authorised magistrate or notified officers or any other persons mentioned in the CPC in court matters. Even an advocate who is not a notary can attest an advocate. For all non-judicial matters, the affidavit should be drawn up on non-judicial stamp paper — in Tamil Nadu it costs Rs 20. Notaries attest such affidavits.

(The author is a Chennai-based advocate and notary public.)

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