ITC Global Holdings Pte Ltd (under judicial management) v ITC Limited and Others

• Jurisdiction: Singapore
• Judge: Brenda Chua AR
• Judgment Date: 13 August 2007
• Neutral Citation: [2007] SGHC 127
• Court: High Court (Singapore)
• Year: 2007
• Published date: 14 August 2007
• Plaintiff Counsel: Paul Ng, Mark Cheng and Christopher Eng (Rajah & Tann)
• Defendant Counsel: K Shanmugam SC and Colin Chow (Allen & Gledhill LLP),Imran Hamid Khwaja and Lalitha Rajah (Tan Rajah & Cheah)
• Citation: [2007] SGHC 127

13 August 2007 Judgment reserved.

Assistant Registrar Brenda Chua:

Introduction

1 As Cotton LJ aptly cautioned in Re Busfield, Whaley v Busfield (1886) 32 Ch D 123: “Service out of the jurisdiction is an interference with the ordinary course of the law, for generally Courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction. If an Act of Parliament gives them jurisdiction over [their] subjects wherever they may be, such jurisdiction is valid, but, apart from statute, a Court has no power to exercise jurisdiction over any one beyond its limits": at 131. Indeed, our courts have always respected the parameters and boundaries drawn by courts in other jurisdictions. This stems from the principle of international sovereignty and the doctrine of comity of nations.

2 Courts must engage in a cautious and scrupulous exercise when considering if service effected on a foreign jurisdiction is proper and in accordance with the laws of our country and the foreign country. The mechanism of service out of jurisdiction exists as a favour by other courts to execute service of a writ where proceedings have been commenced in Singapore. It is a reciprocal act and when other courts approach our courts for assistance in effecting service, we will return the favour. Since we are borrowing the services of foreign courts, it is an implicit and unspoken rule that our courts have to ensure that the laws of the foreign country in relation to service of foreign summonses are strictly adhered to.

3 The present proceedings raise squarely two important issues as to the interpretation of a foreign statute in order to determine whether service out of jurisdiction was in fact proper and the circumstances in which, if at all, the court has the discretion to cure an irregular service out of jurisdiction.

Facts

4 The case before the court involves the plaintiff and the first defendant in Summons No 5593 of 2006 and the plaintiff and the thirteenth defendant in Summons No 1775 of 2007. The first and thirteenth defendants are applying to set aside the plaintiff’s service of the writ of summons on them on the basis that the plaintiff has not complied with the requirements of service of foreign summonses in India.

5 By way of background, the plaintiff is a company incorporated in Singapore. The first defendant is the sole shareholder of the plaintiff and is a company incorporated in India. The thirteenth defendant was, at the material time, an employee of the plaintiff. The plaintiff is claiming against the fifteen defendants on two grounds – one, a claim for US$9.1m for alleged advances or loans from the plaintiff to one Chitalia Group (owned or controlled by the fourteenth and fifteenth defendants as stated in the thirteenth defendant’s affidavit filed on 23 April 2007 at [17]) in which the plaintiff is alleging that the defendants used the Chitalia Group as a sham to fraudulently create apparent profits for the first defendant and; two, a claim for US$9m for Columbo rice transactions which were purchased by the plaintiff from the Chitalia Group on which the plaintiff is claiming on an indemnity which was provided by the first defendant to the plaintiff.

6 On 6 November 2006, the first defendant was allegedly served with a writ at its registered office at Virginia House, 37 Jawaharial Nehru Road, Kolkata 700071, West Bengal, India by “a person claiming to be from the Calcutta High Court”: see the first defendant’s affidavit filed on 8 December 2006 at [9]. The person allegedly served the writ on an office assistant at the first defendant’s mailing room. The plaintiff alleged that proper service has been effected as required under Indian law. On the other hand, the first defendant argued that service did not conform to Indian law and ought to be set aside.

7 On 19 March 2007, the thirteenth defendant was allegedly served with a writ at his house by “someone claiming to be a process server from the Tis Hazari Courts in New Delhi”: see the thirteenth defendant’s affidavit filed on 23 April 2007 at [30]. Again, the plaintiff alleged that proper service has been effected as required under Indian law. On the other hand, the thirteenth defendant argued that service did not conform to Indian law and ought to be set aside.

8 This is a convenient juncture to mention at the outset that the plaintiff has previously attempted service of writ on the first to fourth defendants and the sixth defendant. In Summons No 4404 of 2003 and Summons No 6259 of 2003, Assistant Registrar Low Siew Ling (“AR Low”) dismissed both summonses and set aside service of the writs as they were not served through the proper judicial channels, i.e. through Indian courts.

The law

9 On the local front, O 11 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) is the governing provision on leave to serve out of jurisdiction. Apart from satisfying the requirements under O 11 r 2, the plaintiff has to ensure that it has complied with the requirements under O 11 r 4(2) which is the applicable provision in this case as “there does not subsist a Civil Procedure Convention” between Singapore and India. Order 11 r 4(2) reads:

Service of originating process abroad through foreign governments, judicial authorities and Singapore consuls or by other method of service (O. 11, r. 4)

4. — (2) Where in accordance with these Rules an originating process is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the originating process may be served —

(a) through the government of that country, where that government is willing to effect service;

(b) through a Singapore consular authority in that country, except where service through such an authority is contrary to the law of that country; or

(c) by a method of service authorised by the law of that country for service of any originating process issued by that country.

10 I noted that the parties’ arguments were premised, in particular, on O 11 r 4(2)(c). It was the evidence of the Indian law expert of the thirteenth defendant, Ciccu Mukhopadhaya (“Ciccu”) that O 11 rr 4(2)(a) and (b) were not applicable in India and this was not rebutted by the plaintiff (see Ciccu’s affidavit filed on 24 May 2007 at [20]):

“Indian law does not recognise service of a summons relating to civil procedure by the Indian Government or through consular authorities of any country as is contemplated by Rule 4(2)(a) and (b) of the Singapore Court Rules.”

11 On the Indian front, it was not in dispute that the relevant provision in the Code of Civil Procedure, 1908 (Act V of 1908) (“Indian CPC”) was s 29 which states:

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 modification in the Official Gazette, declared the provisions of this section to apply,

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.

Whether service on the first defendant was proper

12 Counsel for the first defendant, Mr K Shanmugam, referred the court to Order V r 22 of the Indian CPC which stipulates:

22. Service within presidency-towns, of summons issued by courts outside. Where a summons issued by any Court established beyond the limits of towns of Calcutta, Madras [and Bombay] is to be served within any such limits, it shall be sent to the Court of Small Causes within whose jurisdiction it is to be served.

13 As I have stated earlier, the first defendant’s office is situated at Kolkata. Mr Shanmugam contended that Order V r 22 required the writ to be served though the Court of Small Causes at Kolkata, not through the Calcutta High Court: see the affidavit of the first defendant’s Indian law expert, Marezban Padam Bharucha (“Bharucha”), filed on 26 April 2007 at [9]. Further, Mr Shanmugam argued that this point which was raised in Barucha’s affidavit has not been responded to by the plaintiff’s Indian expert, Shreyas Patel (“Patel”) since it was filed, and he pointed out that Patel has filed further affidavits rebutting other points raised by Bharucha, yet nothing was said with respect to Order V r 22.

14 In rebuttal, counsel for the plaintiff, Mr Paul Ng, submitted that the parties should wait for the endorsement of service from the Indian courts in order to affirm who exactly effected the service on the first defendant. Mr Ng also mentioned that he was taking no position as to the accuracy of the evidence submitted by the first defendant’s officers. When queried by the court as to how then was the plaintiff going to prove to the court that the service was proper and which evidence the plaintiff was relying on, Mr Ng realised that he was taking an incongruous position and stated that he was taking the first defendant’s officer’s evidence at face value and on that basis, he submitted that the writ was properly served in accordance with Indian law.

15 In this regard, Mr Shanmugam pointed out that the only evidence which pertained to the first defendant’s affidavit filed on 8 December 2006 at [9] that the writ was allegedly served on “a person claiming to be from the Calcutta High Court” remained unchallenged by the plaintiffs who had ample notice of this statement yet remained silent on this point. He asserted that the plaintiff had come to court ready to prove their case; they could not now argue that they did not have the endorsement.

16 More significantly, when the court asked Mr Ng whether he had any evidence to show that Order V r 22 has been complied with, he answered in...