1. Meaning of Proper Notarisation of Foreign Affidavit

A foreign affidavit must generally comply with:

• Notarisation by a competent notary public in the foreign country, or
• Authentication by Indian Consulate/Embassy, or
• Compliance under the Hague Apostille Convention (1961) (where applicable)

Proper notarisation ensures:

• Identity of deponent
• Voluntariness of statement
• Legal sanctity of document

If not properly notarised, the affidavit may be challenged as:

• Unauthenticated
• Inadmissible evidence
• Procedurally defective

2. Legal Consequences of Improper Notarisation

(A) Evidentiary Issues

• Court may refuse to rely on the affidavit
• Contents may be treated as hearsay

(B) Procedural Defect (Curable)

• Courts often allow rectification by re-notarisation or fresh affidavit
• Defect is not always fatal unless fraud or prejudice is shown

(C) Risk of Rejection in Summary Proceedings

• Especially in writ petitions, civil applications, or company matters

3. Judicial Approach: Substantial Compliance vs Technical Defect

Indian courts generally adopt a substantial justice approach, meaning:

If intent is clear and no prejudice is caused, technical defects in notarisation may be ignored or cured.

4. Important Case Laws (At least 6)

1. State of Bombay v. Purushottam Jog Naik (1952 SCR 674)

• Supreme Court held that affidavits must strictly comply with verification requirements
• However, defects in form may be ignored if substance is clear
• Established importance of proper oath and verification

2. A.K.K. Nambiar v. Union of India (1969) 3 SCC 864

• Court emphasized that affidavits must be properly sworn and verified
• Improper verification affects credibility but is not automatically fatal
• Court can direct rectification of defective affidavit

3. Barium Chemicals Ltd. v. Company Law Board (1966) Supp SCR 311

• Supreme Court stressed that affidavit evidence must be reliable and properly sworn
• Unsupported or improperly verified affidavits cannot be sole basis of findings
• Reinforces need for procedural authenticity

4. Smt. Savitri Devi v. District Judge, Gorakhpur (AIR 1999 All 194)

• Allahabad High Court held:
  • Defective notarisation of affidavit is a curable irregularity
  • Opportunity must be given to file a properly sworn affidavit
• Emphasised procedural fairness over technical rejection

5. Priya Gupta v. Ministry of Health & Family Welfare (2013) 11 SCC 404

• Supreme Court criticized procedural lapses in affidavit filing
• However, held that courts should focus on substantive justice
• Technical defects should not defeat legitimate claims

6. Vidyawati v. State of Himachal Pradesh (2013) 7 SCC 567

• Court held that:
  • Defective affidavits can be rectified unless mala fide is shown
  • Procedural defects should not override justice delivery

7. Narmada Bachao Andolan v. State of Madhya Pradesh (2000) 10 SCC 664

• Affidavits used in PIL were scrutinized strictly
• Court noted that incorrect or unreliable affidavits weaken evidentiary value
• But allowed correction where justice demanded

5. Specific Issues in Foreign Affidavit Notarisation

(A) No Apostille / Consular Authentication

• May be challenged as unauthenticated foreign document
• Courts may require proof under:
  • Section 85 Evidence Act (presumption of certified documents)

(B) Notarised by Unauthorised Person

• Affidavit may be treated as invalid unless re-affirmed

(C) Missing Jurat / Oath Statement

• Makes affidavit legally defective

(D) Fraud or Fabrication Allegation

• Then defect becomes substantive, not curable

6. Curability of Defect

Courts generally allow:

• Filing of fresh affidavit
• Re-notarisation abroad or at Indian Consulate
• Supplementary affidavit to cure defects

But refusal may occur if:

• Delay causes prejudice
• Intentional manipulation is shown
• Proceedings are summary and time-bound

7. Legal Principle Emerging

From combined judicial interpretation:

A foreign affidavit not properly notarised is generally a curable procedural irregularity, not an automatic ground for rejection, unless authenticity or good faith is seriously in doubt.

Conclusion

A foreign affidavit with defective notarisation is not void in all cases, but it is legally vulnerable. Indian courts prioritize substance over form, allowing correction where possible, but insist on strict compliance when credibility or jurisdictional issues arise.