Online Dispute Resolution: Validity Of 'Service' Through Emails, Whatsapp And Messaging Applications

The last decade saw the shaping of the ambitious e-courts mission which included initiatives like e-filing, virtual courts, video conferencing facilities and online case status, which led us to believe that digitisation was knocking at the doors of justice. In fact, government reports even suggest that planning has begun on the use of artificial intelligence, machine learning and blockchain technology for automating judicial processes, and work is already ongoing for transfer of judicial data on cloud. The 'corona era' has in effect made this ambitious project an absolute necessity and the need for online dispute resolution ("ODR") or what we can now call it "contact-free dispute resolution", will become an indispensable modus operandi.

Statistics show that non-service or "ineffective" service, a key aspect of ODR, is one of the major reasons contributing to delay. Let's therefore analyse a crucial aspect – legal validity of service through emails and messaging applications like Whatsapp. Here's a look at what courts have held:

The Supreme Court of India in Central Electricity Regulatory Commission v. National Hydroelectric Power Corporation Ltd had issued directions for effecting service through emails.

Many of us are aware of Justice G. S. Patel's observations in Kross Television India Pvt Ltd & Anr Vs. Vikhyat Chitra Production & Ors wherein it was held that the purpose of service is to put the other party to notice and where an alternative mode (email and Whatsapp) is used and service is shown to be effected of the notice, and is acknowledged, then surely it cannot be suggested that there was 'no notice'.

The Delhi High Court in Tata Sons Ltd & Ors. Vs. John Doe(s) & Ors., allowed the Plaintiff to serve the summons on one of the Defendant through WhatsApp, text message & email, and to file affidavit of service.

Rohini Civil Court in Delhi accepted the blue double-tick sign in a WhatsApp message as valid proof that a case related notice had been seen by the message's recipients. The Karkardooma Metropolitan Court at Delhi allowed a woman to serve summons to his husband in Australia through WhatsApp.

Justice G. S. Patel in SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav reiterated the stance by accepting service of notice through WhatsApp messenger after finding that the notice served was not only delivered, but the attachment was opened as well.

The Bombay High Court in Dr. Madhav Vishwanath Dawalbhakta & ors. v. M/s. Bendale Brothers took note of the concept of substituted service in Order 5 Rule 20 of Code of Civil Procedure and observed that the Court can take into account the modern ways of service which are available due to internet connection. It can be served also by courier or by email or by Whatsapp, and that the soul of the service is to have the knowledge of the proceedings to the defendant or the contesting party.

The Supreme Court in Indian Bank Association & Ors vs Union Of India & Anr and the Bombay High Court in Ksl and Industries Ltd., Vs Mannalal Khandelwal and the State of Maharashtra permitted service through emails.

While the judiciary is embracing service of summons and notices through emails and messaging applications like Whatsapp, provisions under the Information Technology Act, 2000 have catalysed these "legal tech" initiatives and paved the way for influx of technology into our justice delivery system. Let's proceed to understand the underlying provisions of law that provide legal backing to this concept:

• Section 4 of the Information Technology Act, 2000 (ITA 2000) gives legal recognition to electronic records;
• Section 3 of the Indian Evidence Act, 1872 (IEA 1872) defines the word evidence to include all documents including electronic records;
• Section 5 of the ITA 2000 gives legal recognition to electronic signature;
• Section 10A of the ITA 2000 validates contracts formed through electronic means;
• Sections 11, 12 and 13 of the ITA 2000 govern attribution, acknowledgment and despatch of electronic records;
• Section 65B of the IEA 1872 provides for the admissibility of electronic records;
• Sections 85A, 85B and 85C of the IEA 1872 support the evidentiary value of electronic records and electronic signatures.

While the above provisions favour issue, communication and recognition of electronic records for various purposes, including legal notices, it may also be interesting to note that the Delhi High Court has made rules regarding service of legal notices through email. The Bombay High Court has formulated the 'Bombay High Court Service of Processes by Electronic Mail Services (Civil Proceedings) Rules, 2017' which bring some relief to litigants in commercial disputes.

The relevant laws allow the income tax department and the department of goods and service tax (GST) to issue notices to assessees via emails, but an interesting question arises whether private notices sent by one party to the other would be valid if communicated via email?

Firstly, it is important to understand that while it may be customary, it is not mandatory to intimate the other party by sending a legal notice before filing of a suit unless it is mandated by law. Therefore, serving private notices via email in cases where the law does not necessitate one will have evidentiary value so long as it fulfils the requirements of the ITA 2000.

Let's look at some cases where the law statutorily requires the aggrieved party to serve a legal notice on the counter-party:

• Notice for Breach of Contract: Legal notices by email shall be valid so long as the corresponding contracts expressly permit the giving of notices by email and they shall have evidentiary value so long as it fulfils the requirements of the ITA 2000.
• Demand Notice under the Insolvency and Bankruptcy Code, 2016: Rules 5(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 permits delivery of the demand notice by electronic mail service.
• Notice under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques: Section 138 does not prescribe any particular mode of service of the demand notice but merely requires a "notice in writing". Accordingly, giving a demand notice to the drawer of the cheque via email will be effective service and have evidentiary value so long as it fulfils the requirements of the ITA 2000.
• Arbitration: Right from the request for arbitration to appointment of the tribunal, from the statement of claim to interim reliefs and the responses can all be served electronically. Supporting this contention is the Delhi high Court judgment in the case of Bright Simons v. Sproxil, Inc. In fact, Section 24 and 29B(3)(a) of the Arbitration and Conciliation Act, 1996 truly fosters the spirit of social distancing by enabling arbitral tribunals to decide the dispute on the sole basis of pleadings, documents and submissions without recourse to oral hearings. It may not be out of place to mention that Section 7(4)(b) of the Arbitration and Conciliation Act, 1996 treats electronic communication of an arbitration agreement shall be deemed to be an arbitration agreement in writing

In summary, to be able to demonstrate that service through email and messaging applications like Whatsapp is effective service:

• one has to contend that the purpose of service is put the other party to notice, and once the same is delivered and acknowledged, it cannot be suggested that there was no notice or claim non-service;
• one must show delivery and acknowledgement, either express or implied, to contend effective service (read receipts in case of emails through email client or softwares and by way of double blue ticks in messaging applications like Whatsapp should be sufficient); and

• one must fulfil conditions prescribed under the Information Technology Act, 2000 in relation to attribution, acknowledgment and despatch of electronic records.

Bhaven Shah is a co-founder of Presolv360 – a legal-tech company that specializes in online commercial dispute resolution. With an academic background in finance and law, he has a decade of experience in understanding law, human relations and conflict resolution.