WhatsApp Not Valid Mode Of Service As Per SC Rules : Supreme Court Registrar

A Registrar Court at the Supreme Court said that service of notice on a party via instant messaging platform WhatsApp or e-mail is not valid.

"As per affidavit of dasti service, the notice is served on the sole respondent through ‘whatsapp’, which is not a valid mode of service as per (Supreme Court)rules," Registrar Pavanesh D said while ordering fresh notice in a transfer petition at admission stage.

In another order, Registrar H. Shashidhara Shetty said, "As per office report, notice was served upon respondent Nos.2 and 3 through e-mail, which is not valid service, as per rules. Hench, Ld. Counsel for the petitioner is granted two weeks’ time to take fresh steps."

The development assumes significance in light of several High Courts permitting electronic service of notices, including via WhatsApp.

In 2017, Rohini Court in Delhi accepted WhatsApp blue double-tick as receipt proof of notice on the Respondents. The case concerned an Appeal filed by a Model Town resident, seeking an injunction against his son and daughter-in-law, her parents and her friend from “trespassing into the suit property”.

During the hearing, the Court had asked the Appellant to send a notice to all five Respondents, and had clarified that the notices can be served via Whatsapp, considering the urgency of the situation. The Appellant had thereafter taken color printouts of the chats, with the blue-ticks visible. These were then submitted to the Court, which was quoted as saying, “These defendants, thus, certainly have acquired knowledge of the summons and the hearing today.” The Judge however ordered that the Respondents be served again.

In SBI Cards & Payments Services Pvt Ltd v. Rohidas Jadhav (2018), Justice GS Patel of the Bombay High Court had accepted service of notice in an execution application through WhatsApp. It had found that notice served in the form of a PDF file was not only delivered, but the attachment was opened as well.

"For the purposes of service of Notice under Order XXI Rule 22, I will accept this. I do so because the icon indicators clearly show that not only was the message and its attachment delivered to the Respondent’s number but that both were opened,” Justice Patel said.

Justice Patel had earlier set a precedent in April 2017, in the case of Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production (2017) in which he held that – “Indian Judiciary system is flexible enough to consider a notice issued through ‘WhatsApp’ or through email admissible in the court of law. It is not necessary for the plaintiff to go through extreme measures like that of a bailiff or through the ‘beat of a drum’ for the notice to be considered as properly served. The defendants were duly notified in the eyes of the court.”

Meanwhile, a local court in Delhi had declined electronic service via WhatsApp stating that there are no rules framed by Delhi High Court authorizing the complainant to effect the service of accused in complaint case by electronic mode. "There is no facility available with the court system to effect service through electronic mode," it had said vide an order passed in January 2017.

Soon thereafter, vide order dated April 27, 2017 in Tata Sons Limited & Ors vs John Doe, Justice Rajiv Sahai Endlaw of the Delhi High Court allowed the Plaintiff in a defamation suit to serve the summons on one of the defendants through Whatsapp, text message and email.

In Meena Prints Pvt Ltd v. Vahini Enterprises and Anr., Justice S.J.Kathawalla summoned defendants in a trademark infringement and passing off case through WhatsApp, after repeated failure of traditional means of service.

"The soul of the service is to have the knowledge of the proceedings to the defendant or the contesting party," the Bombay High Court had observed in Dr. Madhav Vishwanath Dawalbhakta & ors. v. M/s. Bendale Brothers while discussing modern ways of service like courier, email and WhatsApp.

In 2019, the Punjab-Haryana High Court while dealing with a run away couple in Monika Rani & Anr. v. State of Haryana & Ors. had permitted to send copy of FDRs in favour of the girl, to her father through 'Whatsapp message'.

In January 2020, the Kerala High Court allowed an Advocate Commissioner to serve notice on the parties through Whatsapp/E-mail, Fax whichever is practicable. This happened in a case relating to alleged poor living conditions in the hostel of a medical college. The Advocate Commissioner was asked to inspect the hostel within 12 hours from the date of receipt of the order. The Commissioner was also asked to serve notice on the Medical College by Fax, Email/Whatsapp which is practicable before making the inspection.