The bench consists of: Justice Raja Vijayaraghavan V., Justice C. Jayachandran And Justice C Pratheep Kumar He was responding to a Division Bench reference on whether summons issued by the court to an accused resident outside India should be effected by the methods prescribed in Order V Rule 25 of the CPC or under the Convention on Judicial and External Service Abroad. Judicial Documents in Civil or Commercial Matters (Hague Service Convention).

The court said: “Harmonizing the two options, we can say that there is nothing wrong in trying to serve the defendant abroad with the service of summons by the method prescribed in Order V, Rule 25; and if the defendant appears before the court in accordance with this notification, the notification has been completed in a good and good manner. Alternatively, if the court receives confirmation of service on the defendant – which depends primarily on the postal regulations applicable in the State of destination – the courts are still at liberty to proceed. However, if both possibilities do not occur within a reasonable period of time, the parties must resort to the method stipulated in the Hague Notification Convention.”

Background

The Division of the Supreme Court in Mollykutty v. Nicey Jacob (2019) held that summons to the accused resident outside India can be issued only under the Hague Services Convention as India is a direct signatory to the agreement. Another Division Bench had doubted the correctness of the decision in Mollykutty (supra), hence this matter is submitted for reference.

Observations

Regarding the power of Parliament to legislate for the implementation of any treaty, agreement or convention with other countries or any decision taken at any international conference, the Court stated that the Constitution of India does not strictly follow the concept of dualism. The Court further observed that Article 51 (c) provides that India must promote respect for international law and agreements.

The court stated: “Therefore, instead of considering the understanding of political morality reflected in the constitution as completely dualist, meaning that a legal regulation is required for the implementation of every international agreement, the right way is to establish a balance between monistic and dualistic concepts. We are of the view that Article 253 does not give Parliament the power to make laws for the implementation of every agreement/contract. Instead, the power conferred by Article 253 is merely enabling in the sense that Parliament has the power to make such laws for the implementation of agreements/conventions.”

The Court thus concluded that Parliament has the power to legislate for the implementation of agreements/contracts.

The court then continued to examine the provisions under the CMK. He noted that Order 5 Rule 25 provides that if the defendant is resident outside India and has no representative in India, service of summons shall be by post. He further submitted that Rule 26 prescribes the manner in which service can be served on an accused resident in a foreign country, either through a political representative or through the Court. The Court held that Rule 26A deals with summonses made through Government officers in foreign territory designated by the Central Government.

The court noted that India is one of the signatories to the Hague Services Convention. It is stated that no domestic legislation has been made regarding this agreement. He stated that in accordance with Article 2 of the Agreement, the contracting country will appoint a Central Authority that will undertake to receive service requests from other contracting countries. He also stated that Article 10 introduced an exception, saying that if the contracting country did not object, the other country could send the summons by post or other means.

Having considered the above, the Court concluded that the Hague Notification Convention conventions providing for the service of documents are quite compatible with Rule 26A of the CPC.

The court said: “It is sufficient to note that the above provisions of the Hague Service Convention do not conflict with the municipal law so as to warrant a consolidation/conversion action for its applicability.”

The court also noted that the conventions of the Hague Service of Service Convention only provide for the procedural aspects provided for in the CPC for the service of subpoenas on defendants abroad and do not affect the substantive rights of the parties. Therefore, he stated that for the notification of judicial documents, there was no need to activate the legislation on the implementation/enforceability of the conventions for the contracting states.

Therefore, the Court reached the following conclusions:

• The form of service provided for in the Hague Notification Convention is applicable even if there is no permitting or corresponding legislation,
• If the other contracting country has no objection, the Court may make notification through postal channels as provided for in Order V Rule 25 of the CPC.
• The decision in the Mollykutty case (supra) was overruled to the extent that it stated that service of summons could only be effected by means of the Hague Service Convention; because service of the summons can also be made by mail, unless the destination state objects to it.

The court recommended the Central Government to set up a portal or dashboard to facilitate this process. The dashboard should allow claimants and courts to submit the necessary documents in accordance with the procedure set out in the Hague Services Convention.

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

Case No: RFA 210 / 2019

Case Title: Charuvila Philipose Sundaran Pillai and Others v. PN Sivadasan and Others

Quote: 2024 LiveLaw (Ker) 723