Now Delhi High Court allows service of notice of suit through WhatsApp

Following Bombay High Court’s unprecedented order last month, has the Delhi High Court open the floodgates for use of Whatsapp in courts?

The Delhi High Court in a defamation matter has allowed the service of notice of suit to defendants by way of WhatsApp, text message and email. The court seems to have followed an order of the Bombay High Court last month that allowed service by way of WhatsApp as a last resort. A cynic would have considered this unprecedented order of the Bombay High Court to be a one-off order. However, with Hon’ble Justice End laws recent Delhi High Court order allowing service of notice of motion using WhatsApp and email at the first instance itself, shows the start of an interesting trend. Furthermore, unlike the Bombay High Court order, the Delhi High Court order does not seem to have been passed in any extenuating circumstances or to be limited to use as a last resort. 

In the Bombay High Court Order, the makers of Kannada film "PushpakaVimana” in a motion picture copyright infringement case, were brought to book for evading service of notice of suit instituted by the plaintiffs, Kross Pictures. The Hon’ble Justice G.S. Patel recognised the efforts of the counsels of Kross Pictures in trying to effect service through email and WhatsApp, apart from the regular modes, holding that so long as it is established that the phone number in question is being used by the Defendants, it cannot be said that they did not have notice of the suit. It is of note that in the Bombay High Court order, the judge validated service already carried out through WhatsApp by relying on the WhatsApp exchange between the counsels of Kross Pictures and the Defendant, as well as TrueCaller records to establish that the phone number indeed belonged to and was being regularly used by the Defendant. The court has also shown sensitivity to possible misuse of such means of communications and has pre-empted the issue by holding that before such communications are accepted as evidence of service, it must be established that the phone number in question is actually being used by the Defendant in question.

Anirudh Rastogi represented Kross Pictures in the case and the matter was argued by Dr.BirenderSaraf with assistance from Ankita Singh.With two of the country’s foremost high courts putting its weight behind use of modes of instantaneous communication for service of the notice, it is only a matter of time when other courts in the country will also take a more favorable view to the use of technology to this end.Accepting modes of instantaneous communication like WhatsApp will have a significant impact in reducing delays in disposal of cases as much time is lost in procedural steps like effecting service and issue of summons.

At this point, it is important to clarify that many news outlets have erroneously reported that this order of the Bombay High Court allows the issue of “summons" through WhatsApp. This has been refuted by the Registry of the Bombay High Court stating that issue of summons will continue to be through established procedure. A perusal of the Order clarifies that it applies only to cases where notice of motion is to be served on the Defendants by Plaintiffs at the time of institution of the suit.

The author is a Counsel (General Corporate and Aviation Law) at TRA