Session Coverage

• What is  documentation? & Why required ?
• Process involved in documentation
• Essentials of documents
• Important standard provisions in a loan document
• What is a defective document?
• Period of limitation for documents and how to ensure enforceability 
• Documentations - Nuances

 What is documentation

Section 3 of Indian Evidence Act, 1872 defines Document as ,“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Section 62 of the Indian Evidence Act, 1872, provides the definition of primary evidence. It states that primary evidence is the original document in its original form.

For instance, if a person needs to prove that he was a minor when he entered into a contract, then his original birth certificate would be considered primary evidence.

Primary evidence has a high evidentiary value and is considered to be the best evidence. It is highly reliable and has a lesser chance of tampering. The primary evidence should be in its original form.

 Importance of Primary Evidence

• The Indian Evidence Act, 1872, considers primary evidence to be of utmost importance and gives it a higher status as compared to other evidence. Section 64 of the Act mandates the presentation of primary evidence for proving the contents of the document.
• The reason behind this is that the court considers primary evidence to be more trustworthy and reliable. However, Section 65 of the Act provides some exemptions for presenting secondary evidence in certain restricted cases. In cases where Section 65 does not provide an exemption, primary evidence must be presented.

From Sections 61 to 73, the Act covers different aspects of documentary evidence, such as proof of handwriting, attestation, admission by parties and exceptions to the rule of attestation. It is important to note that documentary evidence has to be properly authenticated and the accuracy of the record must be established for it to be admissible in court. 

Process involved in documentation

• Identifying the document 
• Stamping
• Filling up the document
• Executing/signing - on every page
• Registration wherever stipulated
• Safeguarding the document.

 List of Documents Obtained in Various facilities ( illustrative)

Requisites of a proper Document

• Correct Details
• Completed in one sitting, using the same pen and ink
• Stamping
• Competent to enter into a contract / Legally enforceable
• Description of security
• Mode of passing consideration
• Terms of repayment
• Registered wherever required with appropriate authority within specified T/L

 Execution different dates / Places

• Date and Place of execution left blank.
• Sign the document noting in their own hand the date and place of execution
• Last date is the date of execution
• First execution at where the advance is sanctioned and disbursed

 Equitable Mortgage

• Deposit of title Deeds subsequent to execution date.
• Documents as per legal opinion, upto date EC
• Extend the EM of security -  at the time of enhancement.
• EM Certified Copies – permission of competent authority
• Deposit the Title Deeds at the notified place.

 Stamping

Revenue Stamp –

• DPN / BOE (Usance bills), money receipts, proxies and transfer of shares – Central 

Special adhesive stamps

Embossed/Engraved Stamps

Non-judicial Stamp Paper

Executed in more than one State

• Bear the stamp duty of that State where it is signed first and sent to other state
• Stamp duty higher than the  first State, Difference to be paid before execution at the second State

 Unstamped/Under stamped

• Not admissible in court of law :-
• DPN / Usance BOE / D11
• All others admissible on a penalty - maximum 10 times 

Section 3 - Limitation Act, 1963

Every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defense

Limitation Act, 1963

Limitation Period 

Extension of period of limitation

• Acknowledgment of debt 
• Part-payment or
• Fresh promise to pay