Shiv Iyer, Partner | Aditi Maheshwari Principal Associate | Arpeeta Panvalkar, Associate
The Hon’ble Bombay High Court in the recent case of North East Organised Floritech Pvt Ltd Vs M.V. CMA CGM Cendrillon[1], laid down that it is obligatory to follow the procedure prescribed under the Hague Convention for service of documents (outside India) such as a Writ of Summons. A direct service (through registered post) to a party residing in foreign territory cannot be considered to be a valid service.
Brief Facts:
The Defendant No. 1 Vessel CMA CGM Cendrillon (“Vessel”) was arrested at the instance of the Plaintiff for their alleged maritime claim. Shortly thereafter, the Registered Owners (i.e., Defendant No.2) of the Vessel secured the Plaintiff’s claim. Thereupon, the Vessel was ordered to be released. Since, the Defendants failed to file a Written Statement, even after the expiry of 120 days from the date of service of Writ of Summons (as contained in Order VII Rule 1 of the Civil Procedure Code, as amended by the Commercial Courts Act, 2015), the Plaintiff preferred an Interim Application to set the suit ex-parte against the Defendants.
Issues before the Hon’ble Court
While rejecting the application preferred by the Plaintiff seeking to proceed ex-parte, the Hon’ble Court dealt with the following issues:
(i) whether service of Warrant of Arrest on the Defendant Vessel constitutes due service of Writ of Summons
(ii) whether there has been a legal and valid service of writ of summons on a party residing in a foreign territory?
Arguments advanced:
Defendant Nos. 1 and 2, contended that the Plaintiff has failed to comply with the provisions contained in Rule 1070 and 1071 of the Bombay High Court (Original Side) Rule, 2017 (“Rules”) while serving Writ of Summons or Warrant of Arrest on the Vessel. Placing reliance on CMOG Feuls DMCC v. OSS Altus Uber- (Bombay High Court) (I.A. (L) No. 169 of 2019 in Commercial Admiralty Suit No.51 of 2018) it was further submitted that service of Writ of Summons on a party is mandatory for the period of 120 days to file written statement to commence unless the service of Writ of Summons is waived. It was also argued that the Writ of Summons was not served in the manner ordained by the procedure in the Hague Convention on the service abroad of judicial or extra-judicial documents in civil or commercial matters, 1965 (“Hague Convention”).
However, it was the Plaintiff’s case that the act of furnishing security constitutes a waiver of Writ of Summons under Rule 1071 (b) of the Rules. Further, it was also the Plaintiff’s case that Hague Convention is not applicable as the said treaty obligation has not been incorporated under the domestic law.
Ruling:
In light of the aforesaid submissions, the Hon’ble Court was of the view that:
(a) It is essential that the mode of service of writ of summons is in accordance with Rule 1071 of the Rules i.e., by serving the original Writ of Summons or Warrant of Arrest or order of arrest on the mast of the ship or outside of any suitable part of the Ship’s superstructure otherwise directed by the order of arrest.
(b) The service of Writ of Summons on the Vessel in a suit in rem is not optional and the 120-day time period for filing the Written Statement shall not commence without the service of the Writ of Summons on the Vessel, unless the warrant of arrest served on the Vessel contains a clear stipulated period to file the written statement.
(c) The time period of 120 days for filing written statement cannot be a matter of inference based on the act of furnishing security, unaccompanied by waiver of service and delivery of the copies of the plaint and the accompanying documents by the Plaintiff to the Defendant.
(d) Hague Convention has been certainly adopted in India by way of issuance of executive instructions such as an Office Memorandums and directions by the Departments of Legal Affairs, Judicial Section, Ministry of Law and Justice, Government of India.
(e) Further, various Indian Court have taken judicial notice of Hague Convention in the following cases:
Molly Kutty v. Nicey Jacob & Ors [2018 SCC OnLine Ker 20657]
Nimesh Harkisandas Topiwala v. Deepa Dalpatram Topiwala, MANU/MH/2773/2017
Microsoft Corporation and Anr v. Tech Heracles OPC Private Limited and Ors [CS (Comm) 276 of 2021]
Renata Partners appeared for the successful Defendant Nos. 1 & 2 and the team was led by Mr. Shiv Iyer, Managing Partner, and comprised of Aditi Maheshwari, Principal Associate and Ms. Arpeeta Panvalkar, Associate.
[1] Commercial Admiralty Suit 8 of 2022.