Kerala High Court Lays Down Guidelines For Service Of Summons In Suits For Defendants Outside India

The Bench comprising of Justice Raja Vijayaraghavan V., Justice C. Jayachandran and Justice C. Pratheep Kumar was answering a reference by a Division Bench as to whether a summons issued by the Court to a defendant residing outside India has to be effected through modes mentioned under Order V Rule 25 of CPC or as per the Convention on The Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial matters (the Hague Service Convention).

The Court said, “Harmonising the two options, we may venture to say that, 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.”

Background

The Division of the High Court in Mollykutty v. Nicey Jacob (2019) held that summons to defendant residing outside India could only be served as per the Hague Service Convention, since India is a signatory to it and not directly. Another Division Bench doubted the correctness of the decision in Mollykutty (supra), hence this issue was sent for reference.

Observations

Regarding the power of Parliament in enacting legislation for enforcement of any treaty, agreement or convention with other countries or any decision made at any international conference, the Court stated that Indian Constitution does not follow the concept of dualism strictly. The Court also observed that Article 51 (c) provides that India must foster respect for international law and treaty.

Court stated, “Therefore, rather than treating the political ethos as reflected in the constitution as completely dualistic, thereby meaning that a legislative enactment is required for implementing any and every international treaty, the right path lies in striking a balance between the monistic and dualistic concepts. We are of the view that Article 253 does not mandate the Parliament to make law for implementing every treaty/ convention. Instead, the power bestowed by Article 253 is only enabling, in the sense that, Parliament has the power to make such laws for implementing treaties/ convention.”

The Court thus concluded that the Parliament has the power to make laws for implementation of treaties/conventions.

The Court then went on to analyze the provisions under the CPC. It noted that Order 5 Rule 25 states that service of summons shall be made through post when the defendant resides outside of India and has no agent in India. It further noted that Rule 26 prescribes the mode for service to a defendant residing in a foreign country, through a political agent or Court. The Court noted that Rule 26A deals with summons which are served through officers of the Government of the foreign territory specified by the Central Government.

The Court noted that India is a signatory the Hague Service Convention. It is noted that no domestic legislation is made in terms of this convention. It noted that as per Article 2 of the Convention the contracting country shall designate a Central Authority who will undertake to receive requests for service coming from other contracting countries. It further stated that Article 10 gives an exception saying that if the contracting country don't oppose, the other country can send the summons through postal channel or other means.

On examining the above, the Court concluded that covenants of the Hague Service Convention providing for service of documents is quite in harmony with Rule 26A of the CPC.

Court said, “Suffice to notice that the above provisions of the Hague Service Convention is not in conflict with the municipal law, so as to warrant an act of incorporation/ transformation for its enforceability.”

The Court further stated that covenants of the Hague Service Convention only prescribes procedural aspects prescribed in the CPC for serving summons to defendants abroad and does not affect any substantive rights of the parties. It thus stated that for service of judicial documents, there is no need for enabling legislation for the implementation/enforceability of its covenants for contracting states.

The Court thus laid down the following conclusions:

• The mode of service contemplated in Hague Service Convention is enforceable even without an enabling or corresponding legislation. The mode of service to defendants residing abroad should essentially be the one contemplated in the Convention
• If the other contracting country has no objection, the Court can effect service through postal channels as envisaged under Order V Rule 25 of CPC. In this case, the Court should ensure that the summons/ notice is served upon the defendant.
• The decision in Mollykutty (supra) is overruled to the extent that it states that service of summons can only effected through the Hague Service Convention, since service of summons can be effected through postal means also when destination state does not object to it.

The Court recommended the Central Government to establish a portal or a dashboard dedicated for facilitating this process. The dashboard should allow litigants and courts to submit necessary documents in accordance with procedure mentioned in Hague Service Convention.

The Court added that there should be a facility to integrate such portals with the Case Management Systems implemented by the Kerala High Court and Other High Courts.

Case No: RFA 210 of 2019

Case Title: Charuvila Philipose Sundaran Pillai and Another v P. N. Sivadasan and Others

Citation: 2024 LiveLaw (Ker) 723