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SERVICE OF NOTICE PROVED IS VALID SERVICE EVEN IF SERVED BY NEW METHODS AND MODES LIKE EMAIL, SMS, AND WHATS AP MESSAGE ETC. ON MOBILE PHONES. New methods of communication must be recognized

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SERVICE OF NOTICE PROVED IS VALID SERVICE EVEN IF SERVED BY NEW METHODS AND MODES LIKE EMAIL, SMS, AND WHATS AP MESSAGE ETC. ON MOBILE PHONES. New methods of communication must be recognized
By: CA DEV KUMAR KOTHARI
May 19, 2017
  • Contents

Reference of judgment:

Kross Television India Pvt Ltd & Another Versus Vikhyat Chitra Production & Others 2017 (5) TMI 190 - BOMBAY HIGH COURT

Service of notice is important:

Service of notice on concerned parties is important and is a mandatory part of any proceeding or process before courts and authorities.

In some situation even a service is deemed to have taken place for example if noticee refuse to take notice or if he does not claim the same even after an intimation has been given.

New methods of communication should be recognized:

New methods of communication must be recognized as means of communication and evidence. Reasonable check and balances and security measures can be specified. For example, particular number of mobile phone, particular email id, etc. must be specified. Provision can be made for compulsory acknowledgement from a specified mobile phone  / email id( the same phone and email id on which message is received is preferred. For example if I receive an email  from Shri Surendra Gupta from his email id surendergupta@tmi.org.in  on my email id then I must acknowledge it on the same email id and not another email id of  Shri Surrender Gupta that is sgetax@gmail.com to any other email id.

Email id must be checked to avoid any mischievous emails looking like that of a known person.

In case of any doubt or suspicion confirmation should be obtained by email as well as by phone calls.

Delaying practices:

Many parties in any suit or proceeding may not be interested to face proceedings and its result because it is not likely to be in their interest. In such situation they adopt delaying tactics. We have experienced that even person to whom a notice is to be served is standing before person serving the notice like a post man, courier delivery boy or a bailiff from the court. The noticee or other person may deny  to be noticee and the notice is returned unserved causing delay in proceeding.

Modern times and new methods of communication:

There was time and still we are advised that let notice be sent by Registered Post with acknowledgement due. Even Speed Post with Acknowledgement due is not preferred because that can give a reason to opposite party to say that it is not proper service. This approach need to be changed, if a notice is served and the opposite party is made aware of notice and all necessary documents etc. have been served, then opposite party should not be allowed take plea that notice has not be served properly or has not been served. 

In modern times with help of electronic communication, wireless communication notices and communications can be sent instantly. The device on which notice is sent is also private and is meant for communication to noticee or his team members like family members, associates or representative. For example, if a person has provided his mobile phone number, email id for communication then communication on such electronic addresses are meant for such person and if communication is delivered at such electronic address, then the recipient has received such communication.

What an idea sirs ji – mobile phone number is identity and address:

We may recall advertisement of Idea Mobile phones,  (‘what an idea sirji’ ** by   in which mobile phone number is rightly portrayed as an identity and address. 

** source https://www.google.co.in/search?q=what+an+idea+sirji+advertisement&ie=utf-8&oe=utf-8&client=firefox-b&gws_rd=cr&ei=jqMIWeS_GpyevQScq6EI

     (IDEAs new campaign gives a new dimension to Democracy What an Idea Sirji! ... The brand tagline "What an Idea Sirji!" is the message given by Brand Ambassador, Abhishek Bachchan, which is echoed by the public at large in the story, and even viewers of the new imaginative ad.

Mobile phone number can be considered as an address for communication by way of talking, SMS and messages through social media like Whats’ Ap.

Mobile phones precautions:

Mobile phone number linked to any person is an important source of perfect and reliable communication with such person. Therefore, one should be very careful in use of his number and related sim card. One should not allow his name and address for mobile phone number to be used by others. In fact even in case of companies, it is  advisable to have mobile phone number for employee in name of employee  but can be marked care of and on account of company.  

In case the phone is given to another employee, then there should be change in name and address of new person to whom an old mobile phone is given. In conclusion, the particular phone number and sim must be used only by person in whose name it is registered.

Mobile phones directory and precautions

Directory on mobile phones with name , address, mobile phone number Identity proof, AADHAR number, PAN , Election commission’s  identity card number etc. and  photo of person holding and using mobile phone number  and other details etc. must be published and webhosted by mobile phone companies. In case of change in user, the same must be updated immediately.

Recent style of drafting includes communication addresses:

In recent times, it has become a popular practice to include details of person to whom contact is to be made his postal address of home and office, mobile phone number, email id and also landline phone numbers for contacting and communications with parties to document like contracts.

Email id and message over phone are good devices and can be considered as safe communication to ensure that addressee has received the communication. Though in some agreements it has been stipulated that notices will be served by Registered Post with AD. However, that is to ensure strict compliance about service of notice.

Many part of business activities are carried through emails and messages.

Now-a-days many parts of business activities are carried out through emails and messages. This is because an email received from particular email id, or message received on a mobile phone is considered to be from concerned person who is known to the party receiving message. In case of any doubt, it is advisable to call back on mobile phone and confirm to avoid any misuse by any other person. 

Signed, scanned PDF files can be exchanged as better evidence:

Though business is carried mostly on good-faith and mutual confidence. In case of personalized trade, industry and services, mostly work is carried out on verbal request and understanding. However, in case of large organizations where there is changes of work amongst people,  changes in people,  and there is no personal nature of long-term relationship, and also for internal check and control written and signed documents are preferable. In modern times of fast communication documents printed, signed and scanned can be obtained. Digitally signed documents can be obtained.

Digital signature:

Digital signature must be used very carefully and it should not be used like a rubber stamp given to any person to put it on documents. It is legally required and preferable that digital signature should be used personally by the person concerned whose digital signature is put on any document, this is because he alone is responsible in relation to such document.  However, unfortunately digital signatures are being used very carelessly, and this may lead to denial and litigation in future.  

Recent case before Bombay High Court:

In case of Kross Television India Pvt Ltd & Anr  V  Vikhyat Chitra Production & Ors (supra.)  service of notice by Whats’ap message on mobile phone of noticee was considered to be good service of notice and party trying to avoid service of notice was not allowed to take plea that notice was not served. The judgment has been posted on this website and its link is given in starting of the article. The editor’s note has analysed the issue very well.

 

By: CA DEV KUMAR KOTHARI - May 19, 2017

 

 

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