The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was concluded on November 15, 1965, ("Hague Service Convention/ Convention"), under the Hague Conference on Private International Law.1 The Convention formally lays down international channels for the service of judicial and extrajudicial documents ( collectively "documents") in civil or commercial matters to defendants/persons residing in countries which are party to the convention, thereby bringing about a much needed reform in matters of cross border service of documents issued and ordered by Courts in different jurisdictions. It came into force on November 10, 1969, and at present has 78 contracting parties.2
India has acceded to the Convention in 2006, subject to its declarations with respect to Articles 8, 10, 15 and 16 thereof. The Convention requires contracting parties to notify central authorities who will undertake/coordinate service within their respective jurisdictions once the documents are transmitted to them originating states under the scheme of the Convention.
A specific feature of India's accension to the Convention, is the opposition of methods of service provided for in Article 10, whereby no defendant in India can be served:
- Through diplomatic or consular agents.
- By postal channels, directly to the defendant.
- By judicial officers, officials or other competent persons of the UK, directly through judicial officers, officials or other competent persons of India.
This means that service of documents in India can only be through the Central Authority as provided for in Article 5 and 6 of the convention3.
India further requires that all requests for service of documents should be in English language or accompanied by an English translation and that the service of judicial documents through diplomatic or consular channels will be limited to service upon the nationals of the State in which the documents originate.4
The Procecure of Service of documents to defendants in India
Firstly, the originating country via its own Central Authority has to transmit the documents to the Indian Central Authority (i.e. the Ministry of Law and Justice, India) in compliance with the requirement under the Convention.
Once, the documents are received in by the Indian Central Authority, they are bound to serve the document in compliance with section 29(C) of the Code of Civil Procedure, 1908 ("CPC") which has been made applicable to , "all civil courts in all countries who are parties to the Hague Convention on the Service Abroad of Judicial or Extra-Judicial Documents in Civil or Commercial Matters, 1965" vide Gazette Notification dated 12.01.2009 of the Ministry of Law and Justice bearing no. G.S.R 24(E).
Section 29(C) of the CPC provides that summonses and other processes issued by "any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply," may be sent to the Courts in the territories to which CPC extends, and served as if they were summonses issued by such Courts. As such, once a document for service is received by the Indian Central Authority, it will be sent to the civil court (governed by the CPC) withing whose jurisdiction, the defendant resides via official channels and it will be served by such courts are per the rules and procedures adopted by it for the service of summons issued by itself to defendants resident within its jurisdiction.
Challenging Improper Service: India And Abroad
From the legal positions above, it is abundantly clear that no service of any documents issued by a court in the originating state can be done privately/directly by circumventing the central authorities in both or either of the contracting states. Private and/or direct service of a documents originating from a civil court in a country party to the Hague Service Convention has been explicitly prohibited (without exception), by the Government of India vide its declaration of opposition5. Further, the Government of India has made a specific procedure applicable for service of such judicial/extrajudicial documents vide section 29(C) of the CPC. It is often the case that attempts are made by litigants to pass off service done through private channels either at their own volition or in furtherance of orders of foreign courts, without taking recourse to service through the central authority as legal, however, such attempts have been found to be illegal and quickly set-aside by various courts.
In a recent ruling of the England and Wales High Court (Queen's Division Bench) in Punjab National Bank (International) Ltd. v. Boris Shipping Ltd. and Ors.6 the High Court set aside the ruling of a lower court which allowed alternate service of documents to be served upon defendants residing in India which were not in accordance with the procedure declared by India under the Hague Service Convention.
Interestingly, however, in the PCCare case,7 a US Court held that service of summons in India via Facebook and email is permissible as they are not covered under Article 10, and India has not specifically opposed such service as of yet.
The landmark Indian case on the subject of service of foreign process in India is however Anupama Sharma v Union of India,8 wherein summons issued by the New York court was delivered privately to the party residing in India. The petitioner opposed this summons in the Hon'ble Bombay High Court on grounds that they were served via methods contrary to that under Articles 3 and 5 as they were privately delivered. Contentions on grounds of opposition to Article 10 was also raised. The Hon'ble High Court however, held that it was not the correct forum for staying the service of the summons, and that the petitioner should move the New York court with the objection.
The process for service of foreign documents in India is not at the same footing as that for service of documents issued by domestic courts. Recently, with the advent of the challenges brought about by the Covid-19 pandemic, courts have allowed service of documents through whatsapp and email, however this is not applicable to documents issued by foreign courts, which are governed by the procedure under the Convention and the specific procedure under the CPC notified by the Government of India.
One must remember that the key factor crucial for deciding the procedure of service applicable for service of judicial/extra judicial documents under Indian law-is the originating civil court. If the originating civil court is located in a country that is a party to the Hague Service Convention, then the provisions therein and Section 29(c) of the CPC apply. Thus, the modes of service are circumscribed and limited to the provisions and the declarations made by the contracting states under the Convention. One cannot rely upon and cite regular provisions, practices and procedures which are applicable to civil courts in the territory of India to a judicial documents/summons and processes which have originated from a civil court in another country which is party the Hague Service Convention.
1. Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=17
2. Status Table of 78 contracting parties at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=17
3. Anupama Sharma v Union of India, 2014 SCC Online Bom 229.
4.DECLARATION/RESERVATION/NOTIFICATION, India at:
5. Mollykutty v. Nicey Jacob & Ors., 2018 SCC OnLine Ker 20657
6. EWHC 1280(QB).
7. Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ. 7189. (PAE), 2013 WL 841037.
8. Supra, Note 3.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.