Is a legal notice sent through WhatsApp, email valid?

Dec 5, 2023

Synopsis
Traditionally, when a court case is filed against you, a court notice or a summon is sent to you on your residential address. However, what if you have received a court notice on WhatsApp or Email. The first question that will come to your mind will be can a person receive legal notice on WhatsApp. Secondly, if the person can receive it, then is it legally valid practice to send/receive it.

When a court case is filed against you, a summons or a court notice is usually sent to your residential address. But as new types of communication become popular and acceptable, can you receive a court notice via WhatsApp, email or other electronic modes?

"Yes," says Mayank Arora, Advocate, Chambers of Bharat Chugh. "An individual can send or receive legal notice or other general notices such as money recovery notices or eviction notices through WhatsApp, email or any other electronic means. Sending legal notices via WhatsApp or any other electronic modes is not mandatory and is usually sent by lawyers or one party to inform the other party of any impending dispute. At times, the notices are also sent to resolve disputes before approaching the courts. Several courts have now recognised the practice of sending notices by emails and WhatsApp and have held that 'the soul of the service' is to send the information of the proceedings to the defendant or the contesting party with a view to give them an opportunity to respond."

Ashish Mehta, Partner, Khaitan & Co, explains that legal notices can be sent or received electronically to individuals as these modes have been held as a valid service.

Serving legal and general notices by email or other electronic modes has become a common and accepted way of service now. Due to COVID-19, the high courts and the Supreme Court accepted this as valid, says Sushmita Gandhi, Partner, INDUSLAW. "The Hon'ble Supreme Court in cognisance for extension of limitation [Suo Moto (C) No. 3 of 2020] has observed and held that the service of notices, summons, and exchange of pleadings may be done by email, fax, commonly used instant messaging services, such as WhatsApp, Telegram, Signal, etc. The Hon'ble Bombay High Court has taken a step further to set a precedent that the service of legal notices, pleadings, and summons done via WhatsApp is also considered a proper service, and a double tick on the WhatsApp message would prima facie show that the notice/summons has been delivered. Usually, it is very common to send and receive legal notices and such similar correspondence electronically. In fact, service of pleadings, process and summons can also be sent or received electronically."

Rules regarding sending/receiving legal notices

Since sending or receiving legal notices electronically became legally valid, some rules have also seen changes.

Gandhi says most high courts have framed their independent rules and guidelines with respect to the service of notices and pleadings and processes by electronic means. "For instance, the Bombay High Court has framed Bombay High Court Service of Processes by Electronic Mail Service (Civil Proceeding) Rules, 2017, which apply to all commercial disputes including commercial appeals under the commercial courts, commercial division and commercial appellate division of the High Courts Act, 2015. The rules provide that a party desirous of serving notice, summons or process to the other party can do so by an electronic mode of service. Similarly, the Punjab and Haryana High Court also recently framed detailed rules for the Revenue Court for the service of notices or summons and exchange of pleadings by electronic modes."

The rules for receiving legal notices electronically are governed by the Information Technology Act, 2000. However, Mehta says, the authenticity of notices received electronically must be verified from their source. "For this, one has to cross-check details such as official contact, official email ID, website and URLs, logos if any."

Are there any legal notices that cannot be sent electronically?

Though courts have accepted the electronic format of sending and receiving legal formats, are there any legal notices that cannot be sent this way?

Arora says, "In my opinion, court summons in criminal matters cannot be served electronically. Sections 61 and 62 of the Code of Criminal Procedure, 1973, (the law that governs the conduct of criminal matters) mandate that the summons must be personally served by a police officer or a public servant. This involves delivering one copy of the summons, in hard copy, to the summoned person and returning the second copy to the court with the person's signature as evidence of acknowledgement."

But there is an exception to this rule. For instance, in proceedings under the Negotiable Instruments Act (the law governing cheque bounce cases), the summons can be served through email as well, according to a recent decision of the Supreme Court. "This is because cheque bounce cases, while entailing a jail sentence, are broadly considered as quasi-criminal cases and not criminal cases, in the strict sense of the term," he explains.

According to Gandhi, all kinds of legal notices or court summons can be sent via electronic modes and there are no specific rules as to what cannot be sent. "In fact, Order 5 Rule 9 of the Code of Civil Procedure, 1908, provides that the service of summons may also be made by any other means of transmission of documents (including fax messages or electronic mail of services), as provided by the rules made by the high court."

But Mehta of Khaitan & Co says every court would have its own rules regarding the service of documents and legal notices. "For instance, the rules of service laid down by the Bombay High Court (for civil proceedings) suggest that the court may direct service by courier for delivery for legal notice, court summons. It will be pertinent to note that after delivery of notice/summons is done, the sender will need to file an affidavit of service mentioning the details," he adds.

[The Economic Times]