Kerala High Court Issues Guidelines For Effecting Service Of Summons In Suits Where Defendants Reside Beyond India's Borders
|The Kerala High Court has issued necessary guidelines for effecting service of Summons in the Suits where Defendants reside beyond India’s borders.
The Court answered the Reference that arose on account of an apparent dichotomy between the modes prescribed under Order V of the Code of Civil Procedure, 1908 (CPC) and the one under “Convention on The Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial matters” (the Hague Service Convention).
A Full Bench comprising Justice Raja Vijayaraghavan V., Justice C. Jayachandran, and Justice C. Pratheep Kumar held as under –
a) The Hague Service Convention is enforceable, albeit without an enabling and corresponding legislation. The mode of service to defendants residing abroad should essentially be the one contemplated in the Convention.
b) Service to defendants residing abroad through postal channels, as envisaged in Order V, Rule 25, is also permissible, inasmuch as the Hague Service Convention itself - speaking through Article 10 - contemplates the same, provided the destination State does not object the same.
c) The declaration of law that summons/notice has to be served on persons residing abroad in strict adherence to the procedure prescribed in the O.Ms - that is to say, in accord with the Hague Service Convention; and that summons/notice cannot be sent directly to Defendants residing in the foreign country, does not reflect the correct proposition of law.
d) The Registry of the Court will formulate and issue appropriate guidelines/modified O.M in accord with the law declared by the Judgment.
e) To address the grievances of litigants nationwide who encounter challenges when required to initiate legal processes abroad, it is recommended that the Central Government take steps to establish a portal or a dashboard dedicated to facilitating this process.
The Bench further said that there should be a facility to integrate this portal with the Case Management Systems implemented by the Kerala High Court and other High Courts as this integration will enable all stakeholders to monitor the entire process seamlessly, thereby enhancing transparency and accountability across the board.
Advocate Jacob P Alex was the Amicus Curiae. Advocate R.S. Kalkura appeared for the Appellants while Central Government Counsel (CGC) N.S. Daya Sindhu Shree Hari and Advocate Abraham George Jacob appeared for the Respondents.
In this case, at its core, the matter before the Court addressed the procedural framework for effecting service of summons in suits where Defendants reside beyond India's borders. Whether the covenants of an international treaty/convention are enforceable per force of India subscribing its hands to such treaty? What if, such covenants are in conflict with the municipal laws? Should such covenants be specifically en-grafted to municipal law, applying the doctrine of incorporation? These questions were also to be answered. A Division Bench of the Court in Mollykutty v. Nicey Jacob [2019 (3) KHC 118] held that the summons to a Defendant, who is residing in a foreign country, which is party to the Hague Service Convention, can only be served as provided for in the Hague Service Convention; and that it cannot be sent directly to defendants residing abroad.
When the question of serving summons to a Defendant residing abroad arose in the Appeals, another Division Bench doubted the correctness of Mollykutty case, essentially on the premise that, in the absence of an amendment to the Code, the methodology envisaged in the Code can still be resorted to. Accordingly, the subsequent Division Bench sought a reference on the following questions to a Full Bench:
i) Could not a summons issued by an Indian Court to be served on a Defendant who is actually or voluntarily residing or carrying on business or personally working for gain in a foreign territory be sent to him through the modes mentioned in Rule 25 of Order V of the Code?
ii) Should every summons issued by an Indian Court to be served on a Defendant who is actually or voluntarily residing or carrying on business or personally working for gain in a foreign territory be sent through the Ministry of Law and Justice?
Hence, the case was referred by the Chief Justice and was placed before the Full Bench of the Court.
The High Court in the above regard observed, “… the method of service through postal channels, as envisaged in Order V, Rule 25, cannot be said to have been excluded/foreclosed altogether due to the Hague Service Convention, inasmuch as the convention itself - speaking through Article 10 - contemplates such service through postal channels. Thus, even when we hold that the convention is enforceable, albeit without an enabling and corresponding legislation, we simultaneously hold that service to defendants abroad can still be taken through postal channels, as per the very convention itself, proprio vigore.”
The Court added that there exists no mechanism to ensure service of summons in the mode envisaged in Order V, Rule 25, be it a case of service through post or e-mail.
Moreover, the Court emphasised that the question of actual or deemed service of summons/notice on the Defendant is a matter of pivotal significance, as it constitutes sufficient notice on the Defendant and confers upon him an opportunity to defend the action brought against him and therefore, it should be the endeavour of every Court to ensure in all cases, where service to Defendant abroad is resorted to by postal means or by e-mail as envisaged in Order V, Rule 25, that the summons/notice is served on the Defendant, without which, it would not be legitimate for the Courts to proceed further.
“… there is nothing wrong in trying service of summons on the defendant abroad by the mode prescribed in Order V, Rule 25; and if the defendant appears before the court pursuant to such service, well and good, the service is complete. Alternatively, if the court get a confirmation regarding service on the defendant - which essentially depends upon the postal arrangement prevailing in the destination State - the courts are still at liberty to proceed. However, if both these eventualities does not happen within a reasonable time, the parties should necessarily be relegated to the method envisaged in the Hague Service Convention”, it said.
Accordingly, the High Court answered the Reference and issued necessary guidelines.
Cause Title- Charuvilla Philippose Sundaran Pillai & Anr. v. P.N. Sivadasan & Ors. (Neutral Citation: 2024:KER:84933)
Appearance:
Appellants: Advocates R.S. Kalkura, M.S. Kalesh, Harish Gopinath, R. Bindu, and P. Anjana.
Respondents: CGC N.S. Daya Sindhu Shree Hari, Advocate Abraham George Jacob, Amicus Curiae Jacob P. Alex, and Advocate Narendra Kumar.