March 16, 2023 COURT OF FIRST INSTANCE - ORDERS
Claim No: CFI 092/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
IDBI BANK LIMITED
Claimant
and
(1) KWALITY DAIRY PRODUCTS FZE
(2) MR SANJAY DHINGRA
Defendants
ORDER WITH REASONS OF JUDICIAL OFFICER MAITHA ALSHEHHI
UPON reviewing the Claimant’s Application No. CFI-092-2022/1 dated 14 March 2023 seeking an order permitting service of the Claim Form upon the Defendants by way of an alternative method, namely, publication (the “Application”)
AND UPON reviewing the affidavit of Mrs. Bini Saroj dated 3 March 2023 filed in support of the Application
AND PURSUANT to Rules 9.2, 9.31, 9.32, 9.33, 9.36 and 9.54 of the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Application is rejected.
2. The Claimant must serve the Claim Form upon the Defendants in accordance with the general methods of service permitted under RDC 9.2(1)(2) and (3).
3. The Claimant shall file a Certificate of Service identifying the method of service used in respect of each Defendant 7 days after the Claim Form is served upon the Defendants pursuant to RDC 9.36.
4. In the event the Claimant exhausts the methods set out in RDC 9.2(1)(2) and (3), the Claimant is at liberty to file an application seeking permission of the Court to serve the Defendants by way of an alternative method, namely, publication.
5. Costs shall be costs in the case.
Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 16 March 2023
At: 3pm
SCHEDULE OF REASONS
1. The Claimant is seeking the Courts’ permission to serve the Defendants by way of an alternative method, namely, publication on the basis that it has been unsuccessful in attempting to serve the Claim Form by way of courier and email.
2. The Claimant states that the Defendants are based outside of the DIFC and relies on RDC 9.54 which reads as below:
“Where a claim form is to be served out of the DIFC or Dubai, it may be served by any method permitted by the law of the place in which it is to be served.”
3. Upon review of the Claim Form, it appears that the Defendants are based in Dubai. Therefore, RDC 9.54 does not apply as it would only be applicable if the Defendants were outside of Dubai or DIFC.
4. The Claimant states that the courier shipments were returned and provided documents to support this.
5. Service of the Claim Form by electronic communication (i.e email) is not permitted under the RDC unless there is a written permission from the Defendants accepting service of the Claim Form by email and, in the claim at hand, I see no evidence to demonstrate that such permission has been provided by the Defendants. As such, this cannot be construed as effective service.
6. Accordingly, I find that the Claimant has not utilised all the methods permitted under the RDC 9.2 which reads as follows:
“A document may be served by any of the following methods:
(1) personal service, in accordance with Rules 9.8 to 9.13;
(2) courier (or an alternative service which provides for delivery on the same or next working day);
(3) leaving the document at a place specified in Rules 9.15 to 9.21;
(4) by means of electronic communication.”
7. The Claimant must ensure that it has used all the methods in RDC 9.2 (apart from electronic communication) before it can apply for permission to serve the Defendants via publication.
8. The Claimant must file a Certificate of Service in accordance with RDC 9.36 7 days after serving the Defendants with the Claim Form.
9. For the above cited reasons, I find that the Application must be rejected.
10. Costs shall be costs in the case.