IMPORTANT POINT
The Hague Service Convention is enforceable in India without enabling legislation, allowing service of summons through postal channels if the destination State does not object.

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 too.

2. A Division Bench of this 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 above appeals, another Division Bench doubted the correctness of Mollykutty (supra), 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?”

The matter was accordingly referred by the Chief Justice and placed before us.

3. Having regard to the complexity of the issue, we appointed Adv.Jacob P Alex, as Amicus Curiae.

4. By Order dated 01.07.2024, We suo moto impleaded the Ministry of Home Affairs and the Ministry of Law and Justice of the Government of India, the said respondents being important stakeholders to submit on the enforceability of the Hague Service Convention, as also, the action in terms of Article 73 of the Constitution. The Order dated 01.07.2024 specifically referred to the necessity of such impleadment, being to explore the possibility of an alternate mode of service, which can be productive, practical and effective, especially in view of the advancement of technology.

5. Heard the learned Amicus, the learned counsel for the appellants and respondents in the above R.F.As. Heard the learned Central Government Counsel on behalf of the additional respondents as well.

6. ARGUMENTS ADVANCED BY THE AMICUS CURIAE:-

Learned Amicus would first impress upon us the importance of serving summons on the defendant in a suit. Relying on Halsbury's Laws of India [Volume 7 Butterworths, paragraph (65.277)], it was pointed out that service of summons on the defendant is of prime importance, as it is intended to inform him of the institution of the suit and to extend an opportunity to resist the same. Sangram Singh v. Election Tribunal and Another [AIR 1955 SC 425] underscores that serving proper summons on the defendant is grounded on the prin