Indian Position On Protection of Respondents and Third Parties in Foreign Litigations

INDIAN POSITION ON PROTECTION OF
RESPONDENTS AND THIRD PARTIES IN

FOREIGN LITIGATIONS
SEMESTER VIII
SESSION JANUARY 2021- MAY 2021
COURSE NAME CONFLICT OF LAWS
ASST. PROF. AKASH KUMAR

SUBJECT COORDINATOR
ASST. PROF.ABHAY KUMAR
SUBMITTED BY
Arvind Sankar 17bba013
Ashutosh Modi 17bba014
TABLE OF CONTENTS
Scope of Research............................................................................................................................2
Research Questions..........................................................................................................................2
Introduction......................................................................................................................................3
Law relating to Service of Summons Abroad..................................................................................4
Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial Documents

in Civil or Commercial Matters, 1965.........................................................................................4
Position in India...........................................................................................................................7
Non Applicability of Hague Convention in India..................................................................10
Law Relating to Taking Evidence.................................................................................................13
Hague Convention on Taking of Evidence in Civil or Commercial Matters, 1965..................13
Indian Position...........................................................................................................................14
Service of Summons for Corporations..........................................................................................15
Conclusion.....................................................................................................................................17
Page | 1
SCOPE OF RESEARCH
This project is primarily concerned with examining the Hague Conventions on Services of
Summons and procedures relating to taking of evidences. Particularly, this project focuses on the
safeguards provided to respondents and third parties. The project also examines the Indian
position on the respective Hague Conventions and how India has gone about implementing the
same.
RESEARCH QUESTIONS
- What is the position of the Hague Conference on Private International Law (HCCH) on
the service of summons and taking of evidence?
- What are the relaxations or protections provided to respondents and third parties under
the said conventions?
- What is India’s position on the aforementioned conventions?
- How has India implemented the HCCH conventions on service of summons and taking of
evidence.
Page | 2
INTRODUCTION
The Hague conventions were a set of agreements that govern and provide guidance on issues of
Private International Law. One of the primary motivations behind enacting an international set of
conventions was primarily due to the geographical, political and legal inconveniences in
handling disputes involving citizens of different countries. With regards to some procedural
issues, it is extremely difficult to send physical copies of judicial documents (including but not
limited to plaints, summons, notices etc.) to the required people across nations. When the
disputes involve parties from more than one country, such documents would have to be sent
across different borders having its own separate procedures to handle judicial documents. The
bureaucracy involved in processing the documents in each of the countries would cause
unnecessary delays in the delivery of the documents. Moreover, it also becomes difficult to
locate the party in a foreign country. After receiving the summons, the defendant also has to
make arrangements to make requisite replies and make appearances before the court. These
arrangements obviously take time given the procedures involved in interacting with a foreign
court. Quite often, these delays do not provide adequate time for the defendant to defend his/her
case or make an appearance before the before the court. The court would also not like to wait
indefinitely for the defendant and may pass an ex parte decision. This bends one of the cardinal
principles of natural justice, viz. audi alterem parte. It is not sufficient to give an opportunity to
defendant to defend his/her case, but it must be ensured that such opportunity is adequate for the
given circumstances. Essentially, a need arose to optimize the process of serving of summons
and taking of evidence primarily because of the geographical, political and legal limitations in
interacting with foreign courts.
The first part of this article discusses the law relating service of summons. This part is again sub-
divided into two parts wherein the first part discusses the rules prescribed by the Hague
Convention on Service of Summons, followed by the domestic laws governing the same in India.
This part also discusses the attitude of Indian Judiciary towards enforcement of the Hague
Convention. The Second part of the Article discusses the law relating to taking of evidence. Like
part one, part two also initiates the discussion with the rules prescribed in the Hague Convention
on Taking Evidence and follows it by discussing the position in India. In part three, the Article
discusses specific provisions relating to service to Corporations. The Article then concludes with
some suggestions.
Page | 3
LAW RELATING TO SERVICE OF SUMMONS ABROAD
HAGUE CONVENTION ON SERVICE OF SUMMONS ABROAD OF JUDICIAL AND EXTRA-

JUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS, 1965
Prior to the 1965 conventions, Prior the service of process was effected through an instrument
known as the ‘Letters of Request/ Rogatory’. ‘Letter Rogatory’1 denotes a formal communication
in writing sent by a Court in which action is pending to the foreign Court/Judge requesting the
service of summons or related acts.
The Hague Convention sought its member nations to establish a Central Authority and enact
appropriate laws to facilitate the serving of summons. Such Central Authority will be obligated
to comply with the norms and standards set forth in Articles 3 to 6 of the Convention. 2 At the
same time, the convention provides sufficient leeway to its contracting states to choose its on
summons serving process either by forming a Central Authority as envisaged in the convention,
formulate its own internal laws to address such situations, or follow the summons process
requested by the applicant so long as it is consistent with its own internal laws. 3 Additionally,
Article 8 of the Convention4 also allows service of judicial documents to persons abroad through
their diplomatic or consular agents. However, this is subject to situations where the state may
oppose the service of summons unless it is a document to be served to a national from the
originating state. Additionally, the convention also allows service to be affected through postal
or other means provided that the receiving state does not prohibit such method of service.
The Hague Convention further provides many safeguards to its member nations by allowing
them to refuse serving of documents if doing so will infringe the sovereignty or security of the
country.5 However, this exception cannot be used on the grounds that the internal laws of the
country have the sole jurisdiction over the subject matter of the issue. In cases of refusal, the
applicant shall be promptly informed of the same.
1
Union of India v. W.N. Chadha, AIR 1993 SC 1082
2
Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial Documents in Civil or
Commercial Matters, 1965.
3
Article 3, Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial Documents in Civil or
4
5
Article 13, Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial Documents in Civil
or Commercial Matters, 1965.
Page | 4
More importantly, Articles 15 and 16 provide protection to the Defendants adverse consequences
arising from service of summons or other equivalent judicial documents. Article 15 of the
Convention states that:
“Where a writ of summons or an equivalent document had to be transmitted abroad for
the purpose of service, under the provisions of the present Convention, and the defendant
has not appeared, judgment shall not be given until it is established that –
a) the document was served by a method prescribed by the internal law of the State
addressed for the service of documents in domestic actions upon persons who are within
its territory, or
b) the document was actually delivered to the defendant or to his residence by another
method provided for by this Convention, and that in either of these cases the service or
the delivery was effected in sufficient time to enable the defendant to defend.
Each Contracting State shall be free to declare that the judge, notwithstanding the
provisions of the first paragraph of this Article, may give judgment even if no certificate
of service or delivery has been received, if all the following conditions are fulfilled –
a) the document was transmitted by one of the methods provided for in this Convention,
b) 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,
c) 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.
Notwithstanding the provisions of the preceding paragraphs the judge may order, in case
of urgency, any provisional or protective measures.”6
Article 15 states that if the defendant has not appeared, the courts shall not reach a decision
unless it is established that the document was served by the method prescribed by the internal
laws of the contracting state governing such persons; and ensure that the document was actually
served to the said person. Additionally, it must ensured that the defendant is given adequate time
to defend his/her case after the documents are served. However, the contracting state shall be
free to allow courts to reach a decision even in cases where the aforementioned conditions are
satisfied if: the document was transmitted by one of the methods provided in the Convention;
after a period of time not less than six months from the date of transmission of the documents
6
Page | 5
which the court finds adequate; and no certificate of service has been received despite reasonable
efforts have been made to obtain the same. Such a provision was made in the interest of natural
justice, i.e. audi alteram parte. In any given dispute, the defendant must be heard before any
decision is reached. The defendant should be given an opportunity to be heard before any
adverse decision is made against them.
Meanwhile, Article 16 provides certain relaxations with respect to filing applications for appeal
in case the courts have made an ex parte decision. Article 167 states that:
“When a writ of summons or an equivalent document had to be transmitted abroad for
the purpose of service, under the provisions of the present Convention, and a judgment
has been entered against a defendant who has not appeared, the judge shall have the
power to relieve the defendant from the effects of the expiration of the time for appeal
from the judgment if the following conditions are fulfilled –
a) the defendant, without any fault on his part, did not have knowledge of the document
in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal,
and
b) the defendant has 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 that the application will not be entertained if it is
filed after the expiration of a time to be stated in the declaration, but which shall in no
case be less than one year following the date of the judgment.
This Article shall not apply to judgments concerning status or capacity of persons.”
Under Article 16, where the documents have been transmitted abroad for service and the court
has rendered a decision, the judge may relieve any limitation periods, provided that the defendant
did not either have knowledge of such document in sufficient time to present a defence or file an
application for appeal; or the defendant has provided a prima facie defence to the action.
However, the defendant must make an application within a reasonable time of getting knowledge
of the judgement. While the contracting states are empowered with rejecting such application on
the grounds that the limitation period has expired and set their own limitation timelines, the
Convention postulates that such rejection shall not be made under any circumstance within 1
7
Page | 6
year of issuing such a judgement. Furthermore, this Article shall not apply to judgements that
concern the status or capacity of the persons involved in the action. This again is to ensure that
the defendant is given an opportunity to be heard properly before a decision is reached in a
dispute. This also provides a safeguard to the defendants by providing a remedy in situations
where an ex parte decision has been rendered for no fault of the defendants. Often, given that it is
usually difficult to locate a person in other countries and given the procedural complexities
involved with handling a litigation taking place in a foreign court which is subject to unfamiliar
laws, the defendants are unable participate in the proceedings and require additional time before
an decision is reached which may affect the rights of the defendant. Thus, it is important to
provide them safety net in the interest of natural justice.
Given that the Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial
Documents in Civil or Commercial Matters, 1965, has been acceded to by the United States, the
United Kingdom, and Canada among others. India too has acceded to the convention to facilitate
the service of summons from foreign courts in 2006.8 Today, a total of 68 countries have signed
the Convention.
POSITION IN INDIA
In India, Service of Summons abroad must be made in accordance to Section 29 9 read with Order
V Rule 2610 of the Indian Civil Procedure Code, 1908. Section 29 of the Code primarily deals
with issue of foreign summons. An extract of the same is as follows:
“29. Service of foreign summonses-- Summonses and other processes issued by
(a) any Civil or Revenue Court established in any part of India to which the provisions of
this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the authority of the Central
Government outside India, or
(c) 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,
8
‘14: Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters’, Hague Conference on Private International Law < http://www.hcch.net/index_en.php?
act=conventions.status&cid=17> accessed on 14th April 2021.
9
Section 29, Civil Procedure Code, 1908
10
Rule 26 Order V, Civil Procedure Code 1908
Page | 7
may be sent to the Courts in the territories to which this Code extends, and served as if
they were summonses issued by such Courts.”
Section 29(c) specifically relates to summons issued by judicial courts outside the territory of
India. This is qualified to apply to jurisdictions notified by the central government; viz. : France,
Spain, Belgium, Russia, Portugal, Japan, Kenya, Nepal, Iran, Egypt, Malaysia, Pakistan,
Singapore, Sri Lanka, Burma, and Bangladesh.11 This essentially allows summons issued by
foreign courts to be treated at par with summons issued by Indian Courts. India achieved
reciprocity by entering into arrangements with the said notified countries in accordance to
Section 29(c) and Order V Rule 26 of the Civil Procedure Code. Likewise, summons issued by
Indian Courts to individuals in these foreign countries will be served to them akin to summons
issued by courts in their jurisdiction.
For issuing summons in countries where there exist no such arrangement, summons are issued
through registered post in accordance to Order V Rule 26 of the Code. Reciprocally, courts in
such courts will serve summons to Indian residents through registered post.12
As mentioned earlier, the obligations under the Convention are not mandatory. However, some
countries like the United States have observed that the terms of the Convention are mandatory in
nature with respect to transmission of summons and other documents covered within the same. 13
No such clarity exists in India, i.e. whether the methods of transmission recommended in the
Hague Convention are mandatory. However, India has complied with some of the provisions
propounded in the Convention.
In accordance to the Convention, India has designated the Ministry of Law and Justice,
Department of Legal Affairs as the Central Authority to facilitate transmission of documents. 14
The process of service of summons in India is as follows:
11
No. 25016/17/2007, Ministry of Home Affairs.
12
‘Protocol Handbook’ (2018) Protocol Division of Ministry of External Affairs.
13
Volkswagenwer Aktiengesellschaft vs Schlunk, 486 U.S. 694 (1988)
14
‘India - Central Authority & Practical Information’, Hague Convention on Private International Law <
https://www.hcch.net/en/states/authorities/details3/?aid=712> accessed on 14th April 2021.
Page | 8
 The Competent Authority or a Judicial Officer from the state of origin of the document
must forwards a request under the prescribed format 15 along with a copy of the document
to be served to the Ministry of Law and Justice in India.16
 The request and the document have to be served in duplicate.17
 After ascertaining whether the formalities are adequately satisfied, the Ministry will serve
the document or arrange for it to be served through an appropriate agency in accordance
to methods prescribed in the Indian Domestic law or in accordance to the method
requested by the applicant so long as it is compatible with Indian Law.18
 The Service Documents must be in English or should be accompanied by its English

translation.
 The Summary of the document which formed part of the request must also be served by
the Law Ministry.19
 The Applicant shall also pay or reimburse the costs incurred during the employment of
judicial officer or a person competent under law for the purposes of serving of
summons.20
 Once the documents are served, the Law Ministry will forward a Certificate (annexed to
the Convention) which shall confirm the service of documents to the intended recipient,
the method of service and the place and date of service and the person to whom the
document was delivered.21
15
‘Model Form annexed to the Convention (Request, Certificate, Summary with Warning)’, Convention on Private
International Law < https://www.hcch.net/en/publications-and-studies/details4/?pid=6560> accessed on 14th April
2021.
16
17
Ibid
18
Article 5(1), Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial Documents in Civil
19
20
21
Page | 9
 When the documents could not be served, the certificate would set out the reasons for the
same.22
NON APPLICABILITY OF HAGUE CONVENTION IN INDIA

India, under the Hague Convention, has agreed to not directly serve documents to the State of
Origin’s diplomatic or consular agents if the document is to be served to a national of the State of
origin.23
Moreover, India has taken advantage of the leeway provided under the agreement to oppose the
methods of service prescribed in Article 10 of the Convention. This implies that documents
cannot be served by postal channels, directly through judicial officers, officials, or other
competent persons of India, through State of Origin or the persons interested in the Judicial
proceedings. Service can only be effected through the Central Authority (essentially the Ministry
of Law).
Interestingly, the US has allowed service of summons in India to be made through Facebook and
e-mail. In the case of Federal Trade Commission v. PCCare247 Inc. et al 24, the District Court of
Southern District of New York allowed service of summons to defendants residing in India
through Facebook and e-mail since they were not prohibited by any international agreement.
This decision and mode of service was not opposed by India.
In the case of Anupama Sharma vs Union of India25, the petitioner challenged the mode by which
summons was served to the defendant/petitioner. Here, the petitioner was a citizen of the United
States of America who was married to the respondent. The Marriage was solemnized in Delhi.
The parties moved back to the USA and had a child. Subsequently, the Petitioner alleged that she
was physically and mentally harassed and assault by the Respondent. The Petitioner filed several
complaints against the same in USA. These complaints culminated in an agreement wherein the
Respondent agreed not to abuse or assault the Petitioner. The couple had agreed to move back to
India in 2013. According to the Petitioner, the Respondent was an alcoholic and resumed abusing
and assaulting the Petitioner. The Petitioner promptly filed a complaint in India. In reponse to the
complaint, the Respondent filed a petition in the United States. The summons issued by the New
22
23
24
Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ. 7189. (PAE), 2013 WL 841037
25
Anupama Sharma vs Union of India , W.P.(L) No.119 of 2014
Page | 10
York District court was privately delivered to the Petitioner, while the Petitioner filed 3
complaints in Mumbai. The Petitioner had also filed a reply to the New York proceedings.
The Petitioner raised a preliminary objection to the proceedings in the New York since the
service of summons was not made in accordance to the Hague Convention. More particularly,
the Petitioner argued that the service of summons was contrary to Article 3 26 of the Hague
Convention and summons can only be served in accordance to Article 5 of the Convention 27.
Additionally, it was argued that India had specifically opposed Article 10 of the Hague
Convention28 and hence was inapplicable to the case. The senior counsel for the Petitioner also
argued that if the summons were to be served, it would require the Petitioner to travel to the
United States which may affect the welfare of the Petitioner’s 4 year old child. Defying the
summons would further attract undesirable consequences given the Respondent’s past behavior.
Furthermore, it was argued that the New York court did not have any jurisdiction to try the
dispute.
The counsels for the Respondent argued that Article 13 of the Convention only allows a
Contracting State to refuse compliance with the provisions of the Convention only when they are
inconsistent or incompatible with the internal laws of the country or if the courts of that country
have the exclusive jurisdiction of the subject matter of the dispute. Furthermore, the New York
had not issued any orders on the dispute and submitted that the Petitioner’s apprehensions were
unfounded.
The Bombay High Court, however, decided in favour of the Respondents. The court opined that
India opposed Article 10, i.e. the provision that permitted serving of documents through postal
channels directly to persons abroad. Article 3 and Article 5 clearly states that the authority or
judicial officer competent under law of the State in which documents originate can send
documents including summons. Furthermore, Article 5 also prescribes that the Central Authority
of the State shall serve the documents in accordance to clauses (a) and (b) of the Article. The
court also suggested that in case the Petitioner has any objections with regards to the documents
not being served by any authority or judicial officer, the objection must be taken before the court
26
27
28
Page | 11
in New York as she had done on a previous occasion. If the New York court finds that the
service was done improperly, it would ask the Respondent to serve the summons again in
accordance to Article 3. Given that no foreign order had been passed and the Petitioner had filed
a reply, including a reply on its merits, the court only found it appropriate to ask the Petitioner to
raise the objection before the New York court.
The Bombay High Court also observed that it will not be possible for it to stay the service of
summons while exercising its writ jurisdiction under Article 226 of the Constitution of India
after giving due regard to Satya vs Teja Singh 29 on whether the proceedings at the Foreign Court
can be stayed by this Court on cases involving the welfare of the child. Since it was held that
courts have to decide whether Foreign judgments are binding on India Courts and such a
consideration must be made in the best interest of the Child.
More recently, in a case that involved the examination of a service made by a Kerala Court to an
Indian Citizen residing in the United States, the High Court of Kerala observed that the summons
and notices cannot be “sent directly to the persons residing in foreign country, after the adoption
of the said method of transmission formulated, pursuant to the Hague Convention.”30
Apart from the aforementioned observations, Article 13 leaves it open to its member states “to
refuse to comply with the service when the request for service infringes its sovereignty and/or
security.”31 Additionally, Article 1 does not extend the scope of the convention to situations
where: the address of the person to be served is not known; the case is not a civil or commercial
matter; and when the document to be served is not a judicial or an extra-judicial document.
Moreover, regardless of whether the service is made properly, each Contracting State is free to
declare that the Judge may give judgment even if no certificate of service or delivery from the
Central Authority has been received, provided it is in conformity with Article 15 of the
Convention.
29
Satya vs Teja Singh, AIR 1975 SC 105
30
Mollykutty vs Nicey Jacob, 2018 SCC OnLine Ker 20657
31
Shambhu Sharan and Gunjan Chhabra, ‘Process Of Service Of Summons In India Under The Hague Convention’,
(Mondaq, 8th October 2015) < https://www.mondaq.com/india/international-courts-tribunals/433154/process-of-
service-of-summons-in-india-under-the-hague-convention> accessed on 14th April 2021.
Page | 12
LAW RELATING TO TAKING EVIDENCE
HAGUE CONVENTION ON TAKING OF EVIDENCE IN CIVIL OR COMMERCIAL

MATTERS, 1965
Article 7 provides some safeguards to defendants in foreign litigation. Article 7 of this
convention states that “he requesting authority shall, if it so desires, be informed of the time
when, and the place where, the proceedings will take place, in order that the parties concerned,
and their representatives, if any, may be present. This information shall be sent directly to the
parties or their representatives when the authority of the State of origin so requests.” 32 This
provision was brought into the convention primarily to make it convenient for parties to appear
during the proceedings. Additionally, an obligation is imposed on the requested state to directly
inform the parties or their representatives of the time and the place where the proceedings will
take place on being requested by the concerned authority of the state of origin.
Furthermore, Article 9 of the convention33 provides for the Judicial Authority to apply its own
laws as to the methods and procedures to be followed for executing Letters of Requests, given
that procedural laws including that of taking evidence is governed by lex fori. A special
procedure may be adopted provided it is not inconsistent with the internal laws of the contracting
state.
Under Article 11 of the Convention34, the requested person may refuse to give evidence so far as
he has been bestowed with privileges or duties to refuse to give evidence under any law of the
State of Execution or under any the law of the State of Origin as may be specified in the letter of
request. Additionally, each contracting state may also show its willingness to respect the
privileges and duties conferred by laws of states other than those of the State f Execution and
State of Origin.
In the context of allowing diplomatic or consular agents to collect evidence in any contracting
state35, the Convention postulates that the national from whom such evidence is collected from is
adequately legally represented.36 Moreover, the requested national can refuse to provide
32
Article 7, Hague Convention on Taking of Evidence in Civil or Commercial Matters, 1970
33
34
35
Chapter II, Hague Convention on Taking of Evidence in Civil or Commercial Matters, 1970
36
Article 20, Hague Convention on Taking of Evidence in Civil or Commercial Matters, 1970; Article 21, Hague
Convention on Taking of Evidence in Civil or Commercial Matters, 1970.
Page | 13
evidence, although the procedures under Chapter I of the Convention remain unaffected from
such refusals.37
Other provisions of the convention generally describe the procedural aspects of the functioning
of the convention and prescribes course of action for specific situations, example the use of
diplomatic channels for resolving disputes.
INDIAN POSITION
Provisions on taking evidence in foreign litigation have been provided for in Section 7838 and in
Order 2639 of the Civil Procedure Code. Section 78 read with Rule 19 to 22 of Order 26 provide
3 conditions that need to be satisfied for executing of letters of request from foreign courts, viz.:
- foreign court should wish to obtain evidence of a witness in any proceeding before it;
- the proceedings are of civil nature; and
- the witness should be residing within the appellate jurisdiction of the High Court before
which the request is placed.
The remaining rules clearly lay down the procedure to be followed by foreign courts to execute
letter of requests.
In the case of Wooster Products Inc v Magna Tek Inc & ors40, a letter of request was presented to
the Delhi High Court by way of a petition under Order 26, Rule 18 of the CPC for obtaining
evidence from witnesses located within the High Court of Delhi’s jurisdiction. The High Court,
after due consideration of the relevant provision of the CPC, appointed a commission for
examination of witnesses as sought by the petitioner. This was, however, prior to the ratification
of the Hague Convention.
After the ratification of the Convention, the handling of letter of requests was discussed in the
following two case: Aventis Pharmaceuticals Ind & Aettersm Technology vs Dr Reddy
Laboratories41and Upaid Systems Ltd vs Satyam Computer Services 42. In both these cases, letters
of requests were presented to the respective High Courts in Andhra Pradesh and Delhi, wherein
Commissioners were appointed for their execution. It was argued that in absence of any special
37
38
Section 78, Civil Procedure Code, 1908
39
Order XXVI, Civil Procedure Code, 1908
40
Wooster Products Inc v Magna Tek Inc & ors, AIR 1989 Delhi 6
41
Aventis Pharmaceuticals Ind & Aettersm Technology vs Dr Reddy Laboratories, OP No1 of 2008.
42
Upaid Systems Ltd vs Satyam Computer Services, O.M.P. 127/2009.
Page | 14
legislations enacted in conformity with the Hague Convention, the Courts could not entertain
such instruments. Given that there were no laws specifically enacted to conform the convention,
it was argued that the Convention could not be given effect and thus the Court did not have any
power to entertain ‘letter of requests’. A particular reference was made to Article 253 of the
Indian Constitution43 which empowered the parliament to enact laws for implementing treaties,
agreements or international conventions, and it was pointed out that the provision was never
actualized for the Hague Convention. While the courts did acknowledge these arguments and
hold that the provisions of the Hague Convention are not mandatory without legislative
sanctions, it also argued that the “absence of a special law would not fetter courts’ powers to
entertain letters of request from foreign courts.” Accordingly, both the High Courts allowed the
petitions.
SERVICE OF SUMMONS FOR CORPORATIONS
Service of Summons on Corporations are provided for in Order 29, Rule 2 of the Code of Civil
Procedure44. The Rule states that:
“2. Service on corporation.—Subject to any statutory provision regulating service of
process, where
the suit is against a corporation, the summons may be served—
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered
office, or
if there is no registered office then at the place where the corporation carries on
business.”
It is not sufficient to send summons to the place of business, or the office of the Corporation. A
mere handing over of the summons to any employee of the corporations is also not sufficient for
it to be deemed as service. However, Postal acknowledgement of the service of summons on the
registered office or place of business of the company either by a secretary, director or principal
officer of the corporation, or any employee of the company in accordance with the procedural
due process will be considered as a valid service.
43
Article 253, Constitution of India, 1950
44
Rule 2, Order 29, Code of Civil Procedure, 1908
Page | 15
With regards to service in India by a foreign company, the Companies Act, 2013 45 states that any
process, notice or other document be served on a foreign company shall be deemed to be
sufficiently served, if addressed to any person whose name and address have been delivered to
the Registrar under section 380 and left at, or sent by post to, the address which has been so
delivered to the Registrar or by electronic mode. 46
45
Companies Act, 2013
46
Section 383, Companies Act, 2013.
Page | 16
CONCLUSION
Given the increase in globalization and the increase in regional and international integration of
the economy, it is pertinent that legislators take proactive steps towards diplomacy and
negotiations towards harmonization of laws. Harmonization of laws will not only provide greater
freedom in trade and commerce, but also remove the inefficiencies in the existing legal systems
and assuage the issues arising from bureaucracy and red tapeism particularly in the resolution of
disputes by judicial authorities. It is important that the Indian legislature takes the harmonization
of laws seriously and initiates negotiations with regional and international bodies to further
optimize the combination between their nationals and foreign courts. Perhaps, India could also
take the route of the United States and accept summons served through Facebook, e-mail or other
electronic means.
Moreover, given that many of these issues arise from inefficiencies and the inconvenience in
locating and delivering documents to the respective persons, it is important that the Conventions
be revisited and amended according to the changes brought in by the contracting states to
optimize the procedures, and also to identify technologies and may further help facilitate the
process of serving documents to the respective parties. Apart from accepting electronic modes of
transmission as valid means of serving documents, digitization of courts should be taken into
consideration for handling disputes involving foreign parties. One of the major changes brought
in by the Covid-19 pandemic was the increased reliance on video conferencing. Such means can
adopted for foreign litigations or proceeding involving foreign parties.
Indian legislature’s attitude towards these conventions has always been lackadaisical, which
forces the judiciary to employ creative interpretation to entertain instruments such as the letter of
requests. Meanwhile, India should seriously optimize its process for serving of summons and
other documents and reinforce the safeguards provided in the Hague Conventions.
Page | 17

Indian Position On Protection of Respondents and Third Parties in Foreign Litigations

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Indian Position On Protection of Respondents and Third Parties in Foreign Litigations

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INDIAN POSITION ON PROTECTION OF

RESPONDENTS AND THIRD PARTIES IN

SESSION JANUARY 2021- MAY 2021

COURSE NAME CONFLICT OF LAWS

ASST. PROF. AKASH KUMAR

Arvind Sankar 17bba013

Ashutosh Modi 17bba014

Law relating to Service of Summons Abroad..................................................................................4

Hague Convention on Service of Summons Abroad of Judicial and Extra-Judicial Documents

Non Applicability of Hague Convention in India..................................................................10

Law Relating to Taking Evidence.................................................................................................13

Hague Convention on Taking of Evidence in Civil or Commercial Matters, 1965..................13

Service of Summons for Corporations..........................................................................................15

- What is India’s position on the aforementioned conventions?

HAGUE CONVENTION ON SERVICE OF SUMMONS ABROAD OF JUDICIAL AND EXTRA-

 The request and the document have to be served in duplicate.17

 The Service Documents must be in English or should be accompanied by its English

NON APPLICABILITY OF HAGUE CONVENTION IN INDIA

HAGUE CONVENTION ON TAKING OF EVIDENCE IN CIVIL OR COMMERCIAL

- the proceedings are of civil nature; and

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