Procedure of service of summons through hague convention in India
The Hague convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was signed on 15 November 1965. The Hague Service Convention provides for a simpler procedure for the transmission of judicial and extrajudicial documents from one signatory country to the other signatory country. Prior to the enactment of the Hague Convention, the service of process was effected by means of Letter Rogatory.
Letter Rogatory is a formal request sent from the court in the country where proceedings were initiated to a court in another country where the party on whom service was to be made resided or operated a business. This procedure generally involved the transmission of the document to be served from the originating court to the foreign ministry in the state of origin and the foreign ministry in the state of origin forwarded the request to the foreign ministry in the destination state.
The documents were then forwarded by the foreign ministry to the local court wherein the party to be served resided and the local court arranged for service on the party to be served. A certificate of service as a proof of service was issued which had to pass through the same process. India signed the Hague Service Convention on 23rd November, 2006.
Procedure for service of summons:
The Convention is applicable only when the following requirements are met:
- When a document is to be transmitted from one State Party to the Convention to another State Party for service in the latter. The law of the State of origin determines whether or not a document has to be transmitted abroad for service in the other State (the Convention is “non-mandatory).
- When the address of the person to be served is known. Where the address of the person to be served with documents is not known, the Convention is not applicable. (Article 1)
- The document to be served must be a judicial or extrajudicial document. (Article 1)
- The document to be served must relate to a civil and/or commercial matter. (Article 1)
The Hague Service Convention provides for one main channel and several other channels for transmission of documents. Under Article 2 each Contracting State to the Convention is under an obligation to designate a Central Authority which would undertake to receive requests for service coming from other Contracting States. Each State shall organize the Central Authority in conformity with its own law.
The Ministry of Law and Justice Department of Legal Affairs has been designated as the Central Authority of India.
Main Channel of Transmission:
Under the main channel of transmission provided for by the Convention, the authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State where addressed a request for transmission of documents. The request for service transmitted to the Central Authority must:
- Comply with the model form annexed to the Convention. The model form is in three parts: a Request for service which has to be completed by the requesting authority, a Certificate which confirms whether or not the documents have been served which has to be completed by the Central Authority of the requested State or any other competent authority designated by it for that purpose and a form entitled “Summary of the document to be served” completed by the forwarding authority and to be delivered to the addressee.
- Be accompanied by the documents to be served or a copy thereof shall be annexed to the request.
- The request and the documents should be submitted in duplicate.
Under Article 5, the Central Authority of the requested State addressed shall execute the request or cause it to be executed either:
- By informal delivery to the addressee who accepts it voluntarily; or
- By a method provided for under the internal law of the requested State; or
- By a particular method requested by the applicant, unless it is incompatible with the law of the requested State.
A Writ of Summons shall be served within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by personal service or, if the plaintiff so desires, by registered post pre-paid for acknowledgment. An acknowledgment purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused service shall be deemed to be prima facie proof of service.
Under Article 6 of the Convention, the Central Authority of the requested State or any other competent authority designated by the requested State shall issue a certificate to the applicant confirming the status of the request. The standard terms in the model annexed to the Convention shall be written either in French or in English or may be written in the official language, or in one of the official languages, of the requesting State (Article 7). All requests for service of documents in India should be in English language or accompanied by an English translation.
Refusal to Process Request:
The Central Authority may refuse execution of the request in two circumstances:
- When the Central Authority considers that the request does not meet the formal and substantive requirements of the Convention (Article. 4);
- When the Central Authority considers that execution of the service would infringe the sovereignty or security of the requested State (Article 13).
The service rendered by the Central Authority does not give rise to any payment or reimbursement of taxes or costs for the services rendered by it. An applicant shall pay or reimburse costs occasioned by the employment of a judicial officer or other competent person or by the use of a particular method of service.
Alternate Channels of Transmission:
The Contracting States may be free to effect service of documents in the following ways:
- Directly through its diplomatic or consular agents (Article 8);
- Indirectly through consular channels to forward documents, to those authorities of another Contracting State which are designated by the latter for this purpose (Article 9);
- By postal channels directly to persons abroad (Article 10(a));
- Directly by the judicial officers, officials or other competent persons of the State of origin through the judicial officers, officials or other competent persons of the State of destination (Article 10(b));
- Directly by any person interested in judicial proceeding through the judicial officers, officials or other competent persons of the State of destination (Article 10(c));
- Two or more contracting State may agree to any other channels for service of judicial documents (Article 11).
In India, the service of judicial documents through diplomatic or consular channels would be limited to the nationals of the State in which the documents originate. India is also opposed to the methods of service provided in Article 10 of the Convention.
Stay of Judgment:
Under Article 15 of the Convention, in case the defendant, upon whom the service was made, failed to appear, a decision shall not be issued unless it is proven that:
- The document was served by a method prescribed by the internal law of the requested State within a reasonable time, or
- The document was actually delivered to the defendant or to his residence by another method provided for by this Convention within sufficient time to enable the defendant to defend.
Under Article 16, the judge, may give judgment even if no certificate of service or delivery has been received, if:
- The document was transmitted by one of the methods provided for in this Convention, and,
- A period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, and,
- No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
If a judgment had been pronounced against defendant, the judge shall relieve the defendant from the effects of the expiration of time of appeal if for no fault of his, the defendant did not have knowledge of the document or the judgment in sufficient time to defend or appeal against and the defendant had disclosed a prima facie defence to the action on the merits.
An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment. Each Contracting State may declare a time limit for filing the application which shall in no case be less than one year following the date of the judgment. In India, an application for relief will not be entertained if filed after the expiration of one year following the date of the judgment.
One of the fundamental purposes of the Hague Convention is to ensure that judicial and extrajudicial documents are brought to the notice of the addressee in sufficient time. The Convention does not prescribe any substantial rules for the actual process for service of documents. The Service Convention is of a non-mandatory but exclusive character. The Contracting States can choose any other mode for service of their documents. The effectiveness and the wide usage of the Convention had been confirmed by the Special Committee which reviewed its practical operation.