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RAJA VIJAYARAGHAVAN V., C. JAYACHANDRAN, C. PRATHEEP KUMAR
Charuvila Philippose Sundaran Pillai [Died] – Appellant
Versus
P. N. Sivadasan – Respondent
How to enforce the Hague Service Convention in India without enabling legislation for service of summons on defendants abroad? What is the scope of Article 10 of the Hague Service Convention and India’s reservation regarding postal service? What are the procedural options for serving foreign defendants under Order V, Rule 25, 26, and 26A in light of the Hague Service Convention?
Key Points: - The Hague Service Convention is enforceable without enabling legislation for service of documents to contracting states, and service can be via postal channels if the destination state does not object (!) (!) (!) -p_99. (!) - India’s reservation to Article 10 means postal service remains permissible to the extent the destination state does not object, and the court may still rely on postal service under Article 10 with caveats (!) (!) (!) -p_117. (!) - Order V, Rule 26A permits service through an officer of the foreign country designated by the Central Government; Rule 26 and Rule 25 cover other modes (central agency, postal/courier, email) and are harmonized with Hague provisions (!) (!) (!) -p_35. (!) -p_74 - The Court overruled Mollykutty and held Hague Service Convention does not conflict with CPC procedural rules; it can operate alongside Order V, Rule 25, with due regard to Article 73 and constitutional provisions (!) (!) (!) -p_39. (!) -p_31 - The Registry should issue guidelines and there is a recommendation to develop a Central Government portal to track service of foreign-defendant notices; courts should harmonize international covenants with domestic procedural law (!) -p_121.
JUDGMENT :
C.Jayachandran, J.
The issue referred remind us of the Shakespearean quote in Macbeth, as it looks like an innocent flower, beneath which lies a serpentine conundrum.
At its core, the matter before us addresses the procedural framework for effecting service of summons in suits where defendants reside beyond India's borders. The question arose on account of an apparent dichotomy between the modes prescribed under Order V of the Code of Civil Procedure, 1908 (for short, 'C.P.C') and the one under the “Convention on The Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial matters” ('the Hague Service Convention' for short). The answer lies in an analysis of the legal requirements to enforce an international treaty, in the backdrop of the constitutional provisions and precedents, binding. 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? An answer to this reference require answer to these questions to
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