Hague Convention On The Service Abroad, 1965: Litigation And Explanation

When the plaintiff files a lawsuit, the defendant must be notified that a lawsuit has been filed against him and that he must appear in court to defend it. Technically, the intimation that the defendant receives from the court is referred to as 'summons'.

According to the Oxford dictionary, 'summons' is an order to appear in court. In other words, it is a written order that legally obligates someone to attend a court of law at a specified date.

The purpose of issuing summons is to provide the defendant a chance to respond to the plaintiff's prayer. Since no one can be condemned unheard, this is consistent with the principles of natural justice.

The Code of Civil Procedure, 1908 does not define the term 'summons'. It provides for the rules of service of summons under sections 27 to 29 r/w Order 5. As per section 27, the summons to the defendant has to be served on such day not beyond 30 days from the date of institution of the suit. Section 28 provides for the service of summons where the defendant resides in another state.

But what if the defendant is residing in a foreign country or is a foreign entity? Does the Code govern the service of summons to such persons? If not, what rules are required to be followed? In this post, I seek to precisely answer these questions and examine the litigation surrounding the same in India.

Hague Service Convention, 1965:

In 1965, The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was concluded. The States signatory to this Convention desired to ensure that judicial and extrajudicial documents to be served abroad are done so by creating appropriate means and that they be brought to the notice of the addressee in sufficient time. They also desired to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure. The Service Convention currently has 82 contracting parties.

Earlier, the Hague Convention on Civil Procedure,1954 prescribed the rules for service of documents abroad. The 1965 Convention replaces the first chapter of the Convention on Civil Procedure, 1954. The 1965 Convention applies where there is occasion to transmit a judicial or extrajudicial document for service abroad. However, this Convention does not apply where the address of the person to be served with the document is not known. Under Article 2, each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6.

The document to be served or a copy thereof shall be annexed to the request mandated vide Article 3. If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request under Article 4. Article 5 holds that the Central Authority of the state addressed shall itself serve the document or shall arrange to have it served by an appropriate agency. A certificate stating that the document has been served shall also include the method of service as per Article 6.

Article 8 provides that each Contracting State shall be free to effect service of judicial documents directly through its diplomatic or consular agents and that any State may declare that it is opposed to such service within its territory. This opposition shall not apply when the document is to be served upon a national of the State in which the documents originate. Article 9 provides for the use of diplomatic or consular channels for certain purposes.

Article 10 states as follows:

“Provided the State of destination does not object, the present Convention shall not interfere with -

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”

Other modes of service may be agreed by the Contracting States. The State addressed may refuse to comply with the terms of the present Convention only if it deems that compliance would infringe its sovereignty or security.

Article 15 provides for circumstances when a judgment can be given where a writ of summons or an equivalent document had to be transmitted abroad (for the purpose of service) under the provisions of the Convention, and the defendant had not appeared. Article 16 then provides for the power of the judge to relieve the defendant, who had not appeared, from the effects of the expiration of the time for appeal from the judgment, if certain conditions are fulfilled.

India Under The Convention:

On November 23, 2006, India ratified the Hague Service Convention, and on August 1, 2007, the Convention came into force in India. The Central Authority for India under the Convention is the Ministry of Law and Justice, Department of Legal Affairs, Room No. 439-A, 4th Floor A-Wing, Shastri Bhavan, New Delhi- 110 001. The contact person is Mr R. K. Srivastava, Deputy Legal Adviser (Tel.: +91 (11) 2338 7543).

In India, all requests for service of documents should be in the English language or accompanied by an English translation. No charges are incurred for service.

Since the Convention allows for contracting parties to make declarations and reservations, India has provided for the same vis-à-vis Articles 8, 10, 15 and 16 in the following words:

“All requests for service of documents should be in English language or accompanied by an English translation; The service of judicial documents through diplomatic or consular channels will be limited to the nationals of the State in which the documents originate; India is opposed to the methods of service provided in Article 10; In terms of Article 15, Indian courts may give judgment if all conditions specified in the second paragraph of that Article are fulfilled; and For purposes of Article 16, an application for relief will not be entertained if filed after the expiration of one year following the date of the judgment.”

Regarding Article 10, what this declaration means inter-alia is that, there is no freedom to send judicial documents, by postal channels, directly to persons in India. It may be noted that section 29 of the CPC provides for service of foreign summons and holds that it may be affected by sending them to the court in the territories in which the provisions of the code apply and served as if they were summonses issued by such courts.

Litigation Surrounding The Convention In India:

In Mollykutty v. Nicey Jacob and Ors., the Kerala High Court, after taking stock of Order V Rule 25of the CPC, held that the summons/notices could not be sent directly to the persons residing in foreign country, after the adoption of the method of transmission formulated, pursuant to the Hague Convention. Declaration of deemed service, where the certificate of service has not been received back, can be made on satisfaction of the condition stipulated in Article 15 of the Hague Convention only. More significantly, the mutual legal agreement between India and the USA specifies a precise procedure for serving notices or summonses to individuals residing in the USA. The High Court of Kerala instructed all subordinate courts to adhere to this procedure.

In Microsoft Corporation and Ors. v. Tech Heracles OPC Private Limited and Ors. (MANU/DE/3118/2022), the Delhi High Court provided for the service requirements to an individual residing in Canada and directed the Registry to abide by the same. The Bombay High Court in NorthEast Organized Floritech Pvt. Ltd. vs. M.V. CMA CGM Cendrillon and Ors. repelled the contention, with respect to the Hague Convention, that the municipal law prevails over the treaty obligation.

The Court sends notices and processes to other nations in a significant percentage of cases, either via the Ministry of Law and Justice or the Ministry of Home Affairs. Nevertheless, the aforementioned Ministries had not established a mechanism for informing the corresponding Registrars of the High Courts of the status of notices or orders served. As a result, the Bombay High Court, in Nimesh Harkisandas Topiwala vs. DeepaDalpatram Topiwala and Ors., suggested that both the Ministries designate a Nodal Officer, who will then be contacted by Registrars or Courts to obtain the necessary information on process or notice serving.

In Anupama Sharma v. Union ofIndia, the Bombay High Court noted that it would not be able to stay the summons' service while exercising its writ jurisdiction under Article 226 of the Indian Constitution. The petitioner could raise this objection in the New York court, and if her argument is accepted, the court there may ask that the respondent serve the summons again in accordance with the guidelines outlined in Articles 3 and 5 of the Convention.

In Binay Kumar Singh v. BritishBroadcasting Corporation and Ors., an objection was taken that the service was not proper as the defendants were foreign entities based in USA and UK. The plaintiff had argued that the defendants had already appeared before the court and as per the provisions of CPC, once a party, i.e. defendant, has appointed his pleader to appear in court on his behalf, the objection cannot be taken that the service upon him is not proper. However, relying upon Metro Ortem Ltd. v. Maharashtra StateRoad Transport Corporation, the court held that mere filing of vakalatnama by the counsel shall not do away with the mandatory requirement of the service of the summons under the prescribed procedure upon the defendant and moreover, as the defendants were foreign entities, the service must have been effected as per the guidelines issued.

When India is the destination country, foreign courts have ruled that there is no prohibition on delivery through alternate channels like email, while certain other foreign courts have opined that such a mode of delivery comes within the ambit of reservation made by India.

Process Of Transmission:

The Ministry of Law and Justice has devised guidelines for service to persons residing abroad. The Central Authority of a signatory State may send the documents to the Central Authority of the addressee State, who receives the process issued by a foreign court of a State signatory to the Service Convention. The Service Request may be rejected or objected to by the Central Authority of the addressee State, with a reason specified. The Central Authority would serve the defendant if it has no objections. According to Section 29(c) of the CPC, this service rendered will be regarded as a summons issued by the Indian court. A certificate would be issued by the Central Authority (Ministry of Law and Justice, if the addressee State is India) upon completion of the service.

If the service is from India, simply put, the request needs to be sent in the prescribed 'Request Form' under the Hague Convention of 1965 along with the 'Warning' and 'Summary of the Documents to be served', all in duplicate and the same are to be forwarded with a covering letter from the court concerned to the Joint Secretary of Legal Affairs, Ministry of Law and Justice. Summons and notices must be sent in original form, bearing the court's seal, and copies of the petition in duplicate must be provided with enough time to allow for delivery to foreign nations (more than four months). The complete name and full address of the party and the issuing authority is to be furnished. The Ministry will then forward the same to the Central Authority of the addressee State, taking into account the declaration or special conditions mentioned by them while signing the Hague Convention. On delivery, a certificate is issued.

A Few Other Contracting States:

The United States of America does not oppose service through postal means and allows for it vide Article 10(a) of the Convention. The United States has no objection to the informal delivery of documents by members of diplomatic or consular missions in the United States, or through mail, or by private persons – if effective under applicable law – provided no compulsion is used. Notice/summons for service in USA are to be sent directly by the courts to Process Forwarding International, 633 Yesler Way, Seattle, WA 98104, USA along with the required fee etc.

In Rockefeller Technology Investments(Asia) VII v. Changzhou SinoType Technology Company Ltd., the Supreme Court of California ruled that a process of service may still be held lawful if the parties to the agreement specifically stated as much, even if a signatory country has voiced reservations about the application of Article 10 of the Service Convention.

Similarly, the United Kingdom does not oppose service through postal means. The declarations made by the United Kingdom can be accessed here. In relation to Scotland, applications for setting aside judgments on the grounds that the defendant did not have knowledge of the proceedings will not been tertained if filed more than one year after the date of judgment.

In RonaldR Brockmeyer v. Marquis Publications Ltd., US Court of Appeals (Ninth Circuit) held the service as valid because Article 10(a) of the Hague Convention allows for service by mail and England's domestic laws do not prohibit service by mail to a post office box.

Meanwhile, Singapore has declared that it is opposed to the direct service of judicial documents, through foreign diplomatic or consular agents, upon persons within its territory. This opposition applies unless the documents are to be served upon a national of the State from which the documents originate. Additionally, it objects to the service within its territory by the methods of transmission set out in Article 10.

Documents sent for service through official channels will be accepted in Hong Kong only by the central or additional authority and only from judicial, consular, or diplomatic officers of other Contracting States, with reference to the provisions of paragraphs (b) and (c) of Article 10 of the Convention.

The position of other Contracting States, with regard to this Convention, can be perused here.

Hence, under the Hague Service Convention, 1965 the documents must be connected to a civil or commercial matter and not a criminal matter. In criminal matters, summons/notices/judicial process are to be forwarded to the Under Secretary (Legal) I & II Division, Ministry of Home Affairs. In civil or commercial matters, some countries (for example: Canada and Australia) chargea fee for serving summons. Moreover, as per the Ministry of External Affairs, in total, one would need to plan for about 4-5 months for effecting service of summons in a foreign country.

To sum up, the Hague Serving Convention is an essential international legal instrument that simplifies, streamlines and makes cross-border serving of legal documents easier. It is crucial for ensuring due process and fostering efficient communication in legal proceedings. The Convention facilitates international judicial cooperation and upholds the values of justice globally by providing unambiguous criteria for service of process. The Hague Service Convention must be embraced and upheld in order to preserve a cohesive legal system, advance cross-border legal certainty, and eventually fortify the basis of international legal relations.

Views are personal.