WHETHER EMAIL SERVICE OR SERVICE THROUGH WHATSAPP IS A

RECOGNISED MODE OF SERVICE?

Email notices have unique limitations – both legal and technological. The uncertainty in this
area and the rapid speed of technological development means there is little case law on the
status of email notices. For this reason, legislation has been passed in many jurisdictions to
deal specifically with the particular issues arising from notices sent by email. The United
Nations Commission on International Trade Law (UNCITL) published its Model Law on
Electronic Commerce in 1996. This established a guiding set of minimalist rules, which many
countries have now adapted to their needs. The relevant legislation is the Electronic
Communications Act 2000 in the United Kingdom, the Electronic Transactions Ordinance
(Cap 553) 2000 in Hong Kong and the Electronic Transactions Act 1999 in Australia. The
purpose of each statute is to place electronic messages on par with other methods of
communication, so that actions will not be invalidated or discriminated against merely
because they were conducted electronically. Each statutory regime is facilitative, rather than
restrictive. Importantly, each of the statutes based on the guidelines of the UNCITL Model
Law are ”opt-in” statutes. That is, they do not apply unless the parties agree to conduct
transactions electronically. However, consent does not have to be express – it can be implied
from the conduct of the parties.1

Kross Television India Pvt Ltd & Anr Vs. Vikhyat Chitra Production & Ors 2Recently
the HC of judicature at Bombay has hold that the service of notice through whats App and
through e mail is a valid service.

SECTION 282-SERVICE OF NOTICE GENERALLY

Sec. 282 reads as under :

Service of notice generally.-(1) The service of a notice or summon or requisition or order or

(a) By post or by such courier services as may be approved by the Board; or

1
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666; Malthouse v Adelaide Milk Supply Co-operative Ltd
[1922] SASR 572.
2
SUIT (L) NO. 162 OF 2017
(b) In such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the
purposes of service of summons; or

(c) In the form of any electronic record as provided in Chapter IV of the Information
Technology Act, 2000 (21 of 2000);

(d) by any other means of transmission of documents as provided by rules made by the Board
in this behalf.

(2) The Board may make rules providing for the addresses (including the address for
electronic mail or electronic mail message) to which the communication referred to in sub-
section (1) may be delivered or transmitted to the person therein named.

“INCOME TAX RULES W.E.F. 23-3-2017

127A.Authentication of notices and other documents-

(1) Every notice or other document Communicated in electronic form by an income-tax

(a) in case of electronic mail or electronic mail message (hereinafter referred to as the e-
mail), if the name and office of such income-tax authority-

(i) Is printed on the e-mail body, if the notice or other document is in the email body itself; or

(ii) is printed on the attachment to the e-mail, if the notice or other document is in the
attachment, and the e-mail is issued from the designated e-mail address of such income-tax
authority;

(b) in case of an electronic record, if the name and office of the income-tax authority-

(i) is displayed as a part of the electronic record, if the notice or other document is contained
as text or remark in the electronic record itself; or

(ii) is printed on the attachment in the electronic record, if the notice or other document is in
the attachment, and such electronic record is displayed on the designated website.

(2) The Principal Director General of Income-tax (Systems) or the Director General of
Income-tax (Systems) shall specify the designated e-mail address of the income-tax authority,
the designated website and the procedure, formats and standards for ensuring authenticity of
the communication.
INFORMATION AND TECHNOLOGIES ACT 2000

13. Time and place of despatch and receipt of electronic record.–

(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an
electronic record occurs when it enters a computer resource outside the control of the
originator.

(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of
an electronic record shall be determined as follows, namely:–

(a) if the addressee has designated a computer resource for the purpose of receiving electronic
records,–

(i) receipt occurs at the time when the electronic record enters the designated computer
resource; or

(ii) if the electronic record is sent to a computer resource of the addressee that is not the
designated computer resource, receipt occurs at the time when the electronic record is
retrieved by the addressee;

(b) if the addressee has not designated a computer resource along with specified timings, if
any, receipt occurs when the electronic record enters the computer resource of the addressee.

(3) Save as otherwise agreed to between the originator and the addressee, an electronic record
is deemed to be despatched at the place where the originator has his place of business, and is
deemed to be received at the place where the addressee has his place of business.

(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the
computer resource is located may be different from the place where the electronic record is
deemed to have been received under sub-section (3).

(5) For the purposes of this section,–

(a) if the originator or the addressee has more than one place of business, the principal place
of business, shall be the place of business;

(b) if the originator or the addressee does not have a place of business, his usual place of
residence shall be deemed to be the place of business;

(c) “usual place of residence”, in relation to a body corporate, means the place where it is
registered.
That the Income tax rules 1962 has been amended w.e.f  2-12-2015 and has added a rule No.
127 which authorises the Income tax authorities to effect the service of notice through e mail,
electronics message the rule also provided the place and address where the service is to be
effected.

The Information Technology Act, 2000 recognizes sending of electronic records for various
purposes, including legal notices, if certain conditions are satisfied. Both Supreme Court of
India and the Delhi High Court have already prescribed guidelines in this regard.

The Delhi High Court, in exercise of powers under Part X of the Code of Civil Procedure,
1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil Procedure, 1908 and all other
powers enabling it in this behalf, has also made Rules regarding service of legal notices
through E-Mail. These rules allow service of legal notices and processes through E-Mails if
the conditions prescribed therein are duly complied with.

Similarly, A Division Bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna
has ensured early release of under trials and accused who are granted bail by directing all
Delhi courts as well as its own officials to e-mail a copy of bail orders to Tihar jail authorities
within 24 hours of being pronounced.

The Supreme Court of India and the Delhi High Court are also working in the direction of
establishment of E-Courts in India as soon as possible. Presently, computerization work has
been finished to a greater extent and we may witness the e-filing facility as well in the near
future. Once linked to the National Judicial Data Grid (NJDG), a proper e-court infrastructure
can be established in India.

In 2018, the High Court of Bombay considered the various modes of effecting substituted
service under rule 20 of Order V of the Code of Civil Procedure, and observed the
importance of “modern ways of service” including messaging platforms:

[I]n sub-rule (i) and (ii), the substituted service means fixing the copies of the summons on
different place as mentioned in the Rule. However, the sub-rule(iii) gives further option that
the summons can be served in such other manner as the Court thinks fit. Thus, the manner
which the Court opts for should be akin to the earlier mode of service, which is mentioned in
the Rule. For this, 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 etc.3
n the case of Tata Sons Limited & Ors vs John Doe(s) & Ors,  the Delhi High Court allowed
the plaintiff to serve summons on one of the defendants through WhatsApp, text message,
and email.4 In a 2018 case, the Delhi High Court “allowed a woman to serve the summons to
her estranged husband who was living in Australia via Whatsapp.” 5Moreover, the Court
considered the “double-tick” marks that show a message as having been read as prima facie
proof of delivery of the summons.6

3
Dr. Madhav Vishwanath Dawalbhakta (Decd) through LRs. Dr. Nitin M. Dawalbhakta & Ors. vs. M/s.
Bendale Brothers, Writ Petition No. 4217 OF 2018, para. 12, https://perma.cc/NA78-T594
4
ata Sons Limited & Ors vs John Doe(s) & Ors, CS(COMM) 1601/2016, para. 3, https://perma.cc/QY7N-V5TG
5
Lokesh Vyas, Admissibility of Summons through Whatsapp in Legal Proceedings,
iPleaders, https://perma.cc/HGJ4-B6VN
6
Meera Emmanuel, Double Tick is Prima Facie Proof of Delivery of Summons via Whatsapp, Delhi Court, Bar
and Bench , https://perma.cc/X63N-37S7