This order clarifies the rigorous procedural requirements for alternative service in the DIFC, emphasizing that claimants must exhaust all standard methods under RDC 9.2 before seeking leave for service by publication.
Why did IDBI Bank seek permission to serve Kwality Dairy Products and Mr Sanjay Dhingra by publication in CFI 092/2022?
The Claimant, IDBI Bank Limited, initiated an application seeking the Court’s intervention to bypass standard service protocols after encountering difficulties in delivering the Claim Form to the Defendants, Kwality Dairy Products FZE and Mr Sanjay Dhingra. The bank contended that its previous attempts to effect service through conventional channels had proven unsuccessful, necessitating an alternative approach to ensure the litigation could proceed.
As noted in the court's schedule of reasons:
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.
The dispute centers on the procedural threshold required to trigger the Court's discretion for alternative service. The Claimant provided evidence that courier shipments had been returned, yet the Court found these efforts insufficient to justify the extraordinary measure of service by publication, as the Claimant had failed to demonstrate that all prescribed methods under the Rules of the DIFC Courts (RDC) had been fully exhausted. The full judgment is available at https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0922022-idbi-bank-limited-v-1-kwality-dairy-products-fze-2-mr-sanjay-dhingra.
Which judge presided over the IDBI Bank v Kwality Dairy Products application in the DIFC Court of First Instance?
The application was heard and determined by Judicial Officer Maitha Alshehhi within the Court of First Instance. The order was issued on 16 March 2023, following a review of the Claimant’s application dated 14 March 2023 and the supporting affidavit of Mrs. Bini Saroj.
What arguments did IDBI Bank advance regarding the applicability of RDC 9.54 to the service of the Claim Form?
IDBI Bank attempted to justify its request for alternative service by arguing that the Defendants were located outside the DIFC, thereby invoking the provisions of RDC 9.54. The Claimant’s legal position was that since the Defendants were based outside the DIFC, they were entitled to rely on the broader service methods permitted by the law of the place where the Defendants were located.
The Court summarized the Claimant's reliance on this rule as follows:
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.”
However, the Court rejected this characterization, noting that the Defendants were based in Dubai. Because RDC 9.54 is specifically designed for service outside of both the DIFC and Dubai, the Claimant’s reliance on this rule was legally misplaced, as the Defendants remained within the jurisdiction of the Dubai courts, where standard DIFC service rules apply.
What was the precise jurisdictional question regarding the exhaustion of RDC 9.2 methods before granting service by publication?
The central legal question before Judicial Officer Alshehhi was whether a claimant can bypass the standard service hierarchy prescribed by RDC 9.2 simply because courier and email attempts have failed. The Court had to determine if the Claimant had satisfied the "exhaustion" requirement—a prerequisite for the Court to exercise its discretion to permit alternative service by publication.
The Court focused on whether the Claimant had attempted all methods listed in RDC 9.2, specifically personal service and leaving the document at a specified place, before seeking an alternative. The doctrinal issue was whether the Court could permit publication when the Claimant had relied heavily on email—which the Court deemed ineffective without prior written consent—and failed to prove that physical service methods were impossible or impracticable.
How did Judicial Officer Alshehhi apply the test for alternative service under RDC 9.2?
The Judicial Officer applied a strict interpretation of the RDC, emphasizing that service by electronic communication is not a default option. The Court reasoned that because the Claimant had not obtained written permission from the Defendants to accept service via email, those attempts were legally ineffective. Consequently, the Claimant had not actually exhausted the methods available under RDC 9.2.
The reasoning process is captured in the following directive:
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.
The Court further clarified that the failure of courier attempts, while documented, did not absolve the Claimant of the obligation to attempt other methods, such as personal service or leaving the document at the registered address, before the Court would consider the extraordinary remedy of publication.
Which specific RDC rules and statutory provisions were applied to the IDBI Bank application?
The Court’s decision was grounded in the following RDC provisions:
- RDC 9.2: This rule defines the hierarchy of service methods, including personal service, courier, leaving the document at a specified place, and electronic communication.
- RDC 9.36: This rule governs the filing of a Certificate of Service, which the Court mandated the Claimant to complete once proper service is effected.
- RDC 9.54: This rule was cited by the Claimant but found inapplicable by the Court, as it pertains only to service outside of both the DIFC and Dubai.
The Court emphasized that the Claimant must adhere to the following:
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).
How did the Court distinguish the applicability of RDC 9.54 in the context of Dubai-based defendants?
The Court utilized a geographical test to distinguish the applicability of RDC 9.54. By confirming that the Defendants were based in Dubai, the Court effectively removed the Claimant's ability to rely on the "law of the place" provision found in RDC 9.54. The Court’s reasoning was that RDC 9.54 is a jurisdictional gateway intended for international or extra-jurisdictional service, not for service within the Emirate of Dubai. By establishing that the Defendants were within Dubai, the Court held that the Claimant was bound by the standard RDC 9.2 service methods, thereby invalidating the attempt to use RDC 9.54 as a shortcut to publication.
What was the final disposition of the application and the specific orders regarding costs?
Judicial Officer Alshehhi rejected the application for alternative service by publication. The Court ordered the Claimant to proceed with standard service methods as prescribed by the RDC.
The specific orders were:
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.
What are the wider implications for DIFC practitioners regarding service of process?
This case serves as a stern reminder that the DIFC Court maintains a high threshold for granting alternative service. Practitioners must anticipate that the Court will not permit service by publication if there is any remaining standard method under RDC 9.2 that has not been attempted. Furthermore, the ruling clarifies that email service is not a "catch-all" and is strictly prohibited without prior written consent from the respondent. Claimants should ensure that they have documented evidence of attempts at personal service and physical delivery before approaching the Court for alternative relief.
Where can I read the full judgment in IDBI Bank v Kwality Dairy Products [2023] DIFC CFI 092?
The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0922022-idbi-bank-limited-v-1-kwality-dairy-products-fze-2-mr-sanjay-dhingra. The CDN link for the text is https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-092-2022_20230316.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external precedents cited in this order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC):
- RDC 9.2
- RDC 9.2(1)(2) and (3)
- RDC 9.8 to 9.13
- RDC 9.15 to 9.21
- RDC 9.31
- RDC 9.32
- RDC 9.33
- RDC 9.36
- RDC 9.54