Delhi High Court - Orders
Microsoft Corporation & Anr vs Tech Heracles Opc Private Limited & Ors on 18 February, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~3 (Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 276/2021& I.A.7329/2021, I.A.2188/2021,
I.A.2189/2022
MICROSOFT CORPORATION & ANR. ..... Plaintiffs
Through: Mr. Pravin Anand, Mr. Saif Khan,
Mr. Shantanu Sahay, Mr. Deepank Singhal, Ms.
Imon Roy and Mr. Apoorv Bansal, Advs.
versus
TECH HERACLES OPC PRIVATE LIMITED & ORS.
..... Defendants
Through: Mr.Rajeev Kumar Malik, Adv. for
D-1,2,3
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 18.02.2022 (By Video Conference on account of COVID-19) I.A.2189/2021 (under Order V Rule 25 of the CPC)
1. By this application, the plaintiff has sought service of notice to be effected on Defendant 4, located in Canada, through the Ministry of Law and Justice, Government of India.
2. Though, on the last date of hearing, Mr. Pravin Anand, learned Counsel had cited Section 29 of the Code of Civil Procedure, 1908 (CPC) to justify the request, today he points out that the correct provision which applies is Order V Rule 25 of the CPC, which reads thus:
"25. SERVICE WHERE DEFENDANT RESIDES OUT Signature Not Verified CS (COMM)276/2021 Page 1 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 OF INDIA AND HAS NO AGENT.
Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate:
Provided that where any such defendant resides in Bangladesh or Pakistan the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:
Provided further that where any such defendant is a public officer in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military naval or air forces) or is servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in this behalf."
3. Order V Rule 25, at a plain glance, envisages service of summons on defendants residing outside India by post or by courier service as may be approved by the High Court, by fax, electronic mail service or by any other means as they may be provided by the rules made by the High Court.
4. Mr. Anand has drawn attention to two judicial authorities which have examined a somewhat similar situation.
5. The first judgment to which Mr. Anand draws attention is the judgment of a Division Bench of the High Court of Kerala in Mollikutty Signature Not Verified CS (COMM)276/2021 Page 2 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 v. Lissey Jacob, (2019) 3 KHC 118. In that case, after taking stock of Order V Rule 25 of the CPC, the High Court observed, in para 13 to 16 thus:
13. It is to be borne in mind that India acceded to the Hague Convention on 23/11/2006 and the convention was entered into in force in India on 01/08/2007. Thereafter, the Ministry of Law and Justice is the nodal ministry for the service of summons/notices and other judicial process in civil and commercial matters served on persons residing in foreign country, which is a party to the Hague Convention. Similarly Ministry of Home Affairs, New Delhi is the Nodal Ministry for the service of summons/notices and other judicial process in criminal matters [OM No. D1B21216/2009 dt:26/07/2010 of the High Court of Kerala]. The Ministry of Law and Justice issued instructions to the High Court insisting strict adherence to the guidelines formulated by the Ministry of Law and Justice, pursuant to the Hague Convention, 1965. The High Court of Kerala had insisted strict adherence to the said guidelines through O.M. Nos. D1(B)-17109/2005 dtd:08/04/2005, D1(B)-
52483/2006 dtd;07/08/2006, D1(B)-26378/2006 dtd:05/06/2006, Dt(B)-180/2007 dtd:11/01/2007, D1(B)-75265/2008 dtd:26/12/2008, D1B-21216/2009 dtd;12/05/2009, D1B- 33789/2010 dtd:23/06/2010, D1B-21216/2009 dtd:01/07/2010, D1B-21216/2009 dtd:26/07/2010, & D3-92033/2014 dtd:12/03/2015 sent to the subordinate courts. The High Court of Kerala directed the subordinate courts to follow the said guidelines in serving summons/notices to the persons residing in foreign country, which is a party to the Hague convention. OM No. D1B33789/2010 dated 23/06/2010 issued by the High Court of Kerala to the Subordinate Courts reads thus:
"In the circumstances, as sought by the Government of India, all Subordinate Courts in the State are informed that it is an obligation of the Judicial Courts in the Country to follow the mandates of the Convention, as India has become asignatory to the Convention, the stipulations of which have come into force for the Country w.e.f. 29th August, 2007"Signature Not Verified CS (COMM)276/2021 Page 3 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41
14. More importantly, for serving notices/summons on persons residing in USA, there is a specific guideline as per the mutual legal agreement of treaty between India and USA and the High Court of Kerala directed all the subordinate courts to follow the said procedure for serving summons/notices to the persons residing in USA by OM dated01/07/2010 issued by the High Court of Kerala. In the case of USA, summons/notices for service in USA are to be sent directly by the courts to 'process forwarding international,' the central authority appointed by USA and they, in turn, serve them to the addressee concerned.
15. In view of the various OM's referred to above, we find that summons/notices could be served to the persons residing in USA, in strict adherence to the procedure prescribed in the said OM. The summons/notices could not 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. Since the OM's are various in number, we have directed the Registry of this court to formulate and submit a codified general Rules of procedure to be followed in sending notices/summons and other Judicial documents in civil and commercial matters to persons residing in foreign country, which is a party to the Hague Convention. In compliance with the said direction, the Registry formulated a general procedure and submitted before us for serving summons/notices and Judicial documents to persons residing in foreign country. The said general procedure reads thus:
General procedure to be followed for service of notice in civil and commercial matters, on persons residing abroad
i) The Ministry of Law and Justice is the nodal Ministry for the service of notices and other judicial processes in civil and commercial matters to be served on persons residing abroad. Therefore, requests for service of Notices and other Judicial processes in Civil and Commercial matters to be served on parties residing abroad are to be forwarded with a covering letter from the Signature Not Verified CS (COMM)276/2021 Page 4 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 Court concerned to the Joint Secretary of Legal Affairs, Ministry of Law and Justice, Department of Legal Affairs, Shastri Bhawan, New Delhi.
ii) The request needs to be sent in the prescribed 'Request Form' under the Hague Convention of 1965 along with the 'Warning' and 'Summary of the Documents to be served', all in duplicate. (Copies of the Hague Convention onthe Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, the prescribed 'Request Form', 'Warning' and 'Summary of the Documents to be served' along with instructions for filling them up enclosed - details available at www.hcch.net)
iii) Notice/Summons in original (containing the seal of the Court) and copy of the petition, in duplicate, have to be submitted, providing more than 4 months time, for effecting service in foreign countries.
iv) The complete name and full address of the party is to be furnished. (P.O.Box Number and Passport Number wilt not suffice as the address of the individual)
v) The complete address of the issuing authority to which the service report isto be returned has to be furnished.
vi) Translation of the documents in the official language of the country where the notice is proposed to be served, wherever necessary (viz. in the case of Non-
English speaking Countries like China, Arabian Countries etc.) have to be furnished.
vii) Notice/summons for service in USA are to be sent directly by the Courts to Process Forwarding International, 633 Yesler Way, Seattle, WA 98104, USA along with the required fee etc. (details available at www. hcch.net), as the Central Authority, USA has authorized the said agency to receive summons/notices under the Signature Not Verified CS (COMM)276/2021 Page 5 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 Hague Convention of 1965. Details regarding the same are available in link pertaining to USA in the 'Central and other Authorities' link in the 'Service' section in the home page of the websitewww.hcch.net.
viii) The Central Authorities in Canada and Australia charge a fee for the process of service under the Hague Convention of Service Abroad of Judicial and Extra- Judicial Matters, 1965. Fee may also be charged by other countries for the process of service as above. Details regarding the fees, if any, and the mode of payment are available in the link pertaining to the respective country in the 'Central and other Authorities' link in the 'Service' section in the homepage of the website www.hcch.net.
ix) The Department of Legal Affairs processes the service of summons/notices in civil and commercial matters issued by an Indian Court for service on a person residing in a foreign country with which there is a reciprocal arrangement. The list of member State/non- member State and the details regarding the Central Authority & practical information relating to member States to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 are available in the Service Section of the website "www.hcch.net".
x) In addition to the general procedure outlined above, different countries may have different requirements and specific procedures (which may be subject to updation over a period of time) which have to be complied with for service of summons/notices to persons residing in such countries and the same have to be ascertained from the link pertaining to the respective country in the 'Central and other Authorities' link in the 'Service' section in the home page of the website 'www.hcch.net'.
16. Going by the said guidelines, we find that after the formation and adoption of the specific method of transmission, for service of notice/summons in civil and commercial matters, Signature Not Verified CS (COMM)276/2021 Page 6 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 by India, pursuant to the Hague convention 1965, no notice/summons could be sent directly to the persons residing in a foreign country, which is a party to the Hague Convention. If summons or notice was sent directly to the person residing in a foreign country, which is a party to the Hague Convention, it cannot be said that the summons was properly addressed and duly sent. No declaration of deemed service also could be made, where the acknowledgement has not been received back."
4. Apparently, therefore, the High Court of Kerala proceeded on the basis of various office memoranda issued by the High Court and on the basis of guidelines collated by the Registry of High Court of Kerala, based on the said office memoranda, regarding the procedure to be followed in effecting service on defendants situated outside India.
5. Mr. Pravin Anand, learned Counsel for the plaintiff submits that it is unlikely that there would be any wide variance in the procedure which would be followed by this Court in similar matters. However, it would be appropriate that the position be clarified by the Registry of this Court, as was clarified by the Registry of the Kerala High Court consequent to the request made by the Bench.
6. Mr. Anand has also invited my attention to an order passed by a Division Bench of High Court of Bombay in Nimesh Harkisandas Topiwala v. Deepa Dalpatram Topiwala, MANU/MH/2773/2017. Para 14 and 15 of the said decision read thus:
14. In the earlier paragraph, we have referred to the circular dated 10th April 2010 issued by the Joint Secretary of the Ministry of External Affairs, New Delhi on 30th April 2010. The copies of the circulars have been forwarded to the Registrars of Signature Not Verified CS (COMM)276/2021 Page 7 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 various High Courts in the country including the Registrar of this Court. Paragraphs 2 to 5 of the said circular read thus:
"2. It is reiterated here that service of judicial processes outside India including summons/show cause notices etc., in criminal matters is regulated by reciprocal arrangements with foreign countries finalized and notified by the Ministry of Home Affairs, as per statutory provisions in the Criminal Procedure Code(Section 105). In the absence of such notified arrangements, the question of service of judicial processes outside India would require to be examined and decided by the Ministry of Home Affairs, in view of the relevant Indian Municipal laws.
3. As per Allocation of Business Rules of the Government of India, the Ministry of Home Affairs to nominate nodal Ministry and Central Authority for seeking and providing the mutual legal assistance in criminal law matters. The Ministry of Home Affairs receives all kind of such requests, examines and takes appropriate action.
4. Similarly, the cases pertaining to civil and commercial matters are required to be taken up with the Ministry of Law and Justice finalizes and notified treaties and arrangements with other countries as per the relevant statutory provisions in the Code of Civil Procedure.
5. It is, therefore, requested that all requests for seeking assistance from a foreign country including the service of all judicial processes or other documents be directly submitted to the Ministry of Home Affairs in criminal law matters and to the Ministry of Law and Justice in the civil and commercial matters."
15. We find that in large number of matters notices/processes are sent by this Court to foreign countries either through the Ministry of Home Affairs or through the Ministry of Law and Signature Not Verified CS (COMM)276/2021 Page 8 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41 Justice. However, there is no arrangement made by the said Ministries to communicate to the respective Registrars of the High Courts about the progress made in service of notices/orders. We, therefore, propose to direct both the Ministries to appoint Nodal Officer so that the Registrars or Courts can contact the said Nodal Officer to get the requisite information about the service of process/notice."
7. In view of the above, the learned Registrar General is requested to direct the concerned Registrar to place on record the present procedure/guidelines, similar to those which were placed by the Registry of High Court of Kerala before the Bench, regarding the procedure to be followed for effecting of service of notice in commercial matters on persons residing abroad, specifically drawing attention to the procedure to be followed in respect of a defendant who resides in Canada. Let the needful be done within ten days from today.
8. A copy of the said Guidelines, as and when placed on record by the Registry, would also be communicated by Mr Pravin Anand at his e-mail id.
9. Re-notify on 14th March, 2022.
10. Let a copy of this order be marked to the Registrar General to effect due compliance.
C.HARI SHANKAR, J FEBRUARY 18, 2022/kr Signature Not Verified CS (COMM)276/2021 Page 9 of 9 Digitally Signed By:SUNIL SINGH NEGI Signing Date:22.02.2022 19:34:41