Service of Summons: Methods, Substituted Service and Proof

A suit cannot proceed against a defendant who has not been served. Delay in service is among the commonest causes of delay in recovery, and a defendant who avoids service can postpone a case for months. The Code of Civil Procedure, 1908, particularly as amended for commercial cases, provides several methods of service and a fallback when they fail. This note explains them. It is general information, not advice on a particular suit.

Why service matters

The time for the defendant's written statement runs from service of summons. In a commercial suit it is thirty days, extendable to a maximum of one hundred and twenty days. A defendant who has not been served properly can have an ex parte decree set aside under Order IX Rule 13. The plaintiff's aim is to serve in a way that can be proved and that withstands challenge.

The methods under Order V

• By the court. The summons is delivered through a court officer or a bailiff to the defendant personally, or, under Rule 15, to an adult member of the family residing with the defendant if the defendant is absent. Rule 12 requires personal service where possible, and Rule 16 requires the person served to sign an acknowledgment.
• By the plaintiff's own arrangement. Order V Rule 9 as amended allows the court to permit the plaintiff to serve the summons by registered post, speed post or an approved courier service. The postal receipt, tracking record and acknowledgment are the proof.
• By electronic means. The same Rule allows service by fax or by electronic mail, and for commercial suits the amended provisions accept service by email where the party has provided an address. A creditor should record email addresses in the contract for this purpose.
• On a company. Order XXIX Rule 2 allows service on a corporation by delivery to the secretary, director or other principal officer, or by leaving it at the registered office, or by post to the registered office.

When service fails

1. Affixture. Under Order V Rule 17, if the defendant refuses to accept service or cannot be found after due diligence, the serving officer may affix a copy to the outer door of the house where the defendant ordinarily resides or carries on business, and report to the court.
2. Substituted service. Order V Rule 20 allows the court, where satisfied that the defendant is keeping out of the way to avoid service or that for any other reason the summons cannot be served in the ordinary way, to order service by affixing a copy in a conspicuous place in the court house and the defendant's last known residence, or in another manner the court thinks fit, including by publication in a newspaper.

The plaintiff should show the court what was tried and why it failed: the report of the unsuccessful attempts, the returned post, the search results that identify a new address. A court will not order publication on a bare assertion.

Cheque complaints

Under Section 144 of the Negotiable Instruments Act the court may issue summons by speed post or approved courier, and a report that the summons was refused is treated as service. A notice of dishonour sent by registered post to the correct address is presumed served, and in C.C. Alavi Haji v. Palapetty Muhammed (2007) the Supreme Court held that a drawer who claims not to have received it can pay within fifteen days of receiving the summons and so cure the position, failing which the defence is not available.

Practical points

• File the plaint with all the addresses known, including the registered office, the factory, and the place of residence of the individual.
• Provide the email addresses and telephone numbers that appear in the contract.
• Take the steps for service immediately after the court issues summons, and keep the proof.
• If one method fails, apply at once for the next.

A matter that is served properly the first time moves; one that is not, drifts. The plaintiff controls more of the process than it often supposes.