By Radhika M
Introduction
The pandemic has forced us to explore alternative ways to perform our daily activities. And the popular remedy amongst them was to go virtual. The judiciary also adapted to the necessity and switched to virtual hearings.
The facility of e-Filing was utilised for documentation but still the service of processes (notice, summons etc) remained as a problem. Since acknowledgement of the receipt of process is important in the conduct of a case, parties as well as Courts rely on the physical delivery of such documents. But as we know, the pandemic induced lockdown has made it difficult.
This article deals with the legal framework that has been adopted for the purpose of online service of legal notices.
What is a legal notice?
A legal notice is a communication made by one party to another specifying his intention to take the dispute pending between them to the Court. It shall be in written form.
The legal notice is sent in civil disputes, and it is a pre-litigation step. It is sent before a formal suit is filed before the Court. Even though only certain statutes demand a compulsory issuing of legal notice, it is always advised to send a legal notice before a matter is raised in the Court.
Section 80(1) of the Civil Procedure Code mandates that no suit shall be instituted against the Government or against a public officer for the acts done by him in his official capacity until a legal notice has been served to them and two months have lapsed from the issue of such notice.
It shall be delivered to the office of Secretary to the concerned Government or to the office of the public officer. It shall the state cause of action, name and address of the plaintiff and the relief he claims.
Therefore, the particulars in a legal notice shall include the following elements and must be divided into paragraphs.
- Name and particulars of the plaintiff.
- Facts of the case.
- Cause of action and the date of cause of action.
- Relief claimed by the plaintiff.
- The period within which a reply notice shall be filed.
A legal notice is generally sent by a lawyer on behalf of his client. Apart from section 80 of CPC, there are some statutes which require legal notice to be served before moving to the Court proceedings.
For example,
- Negotiable Instruments Act, 1881
Section 93 of the Act says that when a negotiable instrument is dishonoured due to non-acceptance or non-payment, the holder of such instrument shall render a notice to the person(s) whom he intends to make liable.
Section 94 prescribes the mode in which the notice may be given. The section says that it may be oral or written, if written, shall be sent by post. But as a matter of practice, the legal notice is sent by post and acknowledgment of the receipt is recorded.
- Transfer of Property Act, 1882
As per section 106 of the Act, a lease can be terminated only after 15 days’ notice period. If the lease was affected for agricultural or manufacturing purposes, then a notice shall be served before 6 months.
Sometimes the contract entered in to by the parties may stipulate the serving of a legal notice before the initiation of legal notice.
Can a legal notice be served online?
Nowadays, official correspondences have become online. Usually an email-id is considered as equivalent as to a residential address for the purpose of serving official matters.
Therefore, the question is that whether legal notices can be served online and if yes, what is their credibility?
Section 4 of the Information Technology Act, 2000 speaks about the legal recognition of electronic records. The section says that if any law prescribes that a matter shall be communicated in a written or typewritten or printed form, such condition will be deemed to have been satisfied even if the matter was communicated in electronic form.
However, it shall be accessible so as to be usable for a subsequent reference.
Similarly, Section 5 of the Act deals with the legal recognition of electronic signature. It says that, if a law prescribes that a document shall contain the signature of any person, an electronic signature will suffice.
Section 12 of the Act says that an acknowledgement of the receipt of the electronic record may be given by any communication made by the addressee or any conduct from the part of the addressee.
However, this applies only when the originator of the electronic record (who sent the record) doesn’t stipulate that the acknowledgement should be made only in a particular form.
If the originator of the electronic record stipulates that it will be binding only upon receiving of an electronic record by him, then it will be effective only when such an acknowledgement is received by him.
The Supreme Court in the case of Central Electricity Regulatory Commission Vs. National Hydroelectric Power Corporation Ltd. & Ors[1], taking into consideration of the piling up of cases due to the delay occurring in the service of processes, gave following directions:
- In commercial litigations, in addition to the normal mode of services (which is normally postal service), service of notice may also be affected through email addresses.
- The Advocate on Record while filing the petition in the Registry shall also provide the email addresses of the respondents or companies or corporations.
- If the Supreme Court issues notice to the respondent or the respondent corporation, it will be sent through email addresses.
- Any Advocate on Record who wishes to file caveat, also have to furnish his/her email address.
- The Cabinet Secretariat shall provide the email addresses of the concerned ministries and departments and the details of the nodal officers appointed therein.
Order XV of Supreme Court Rules, 2013 mandates that whenever a petition is filed, the email address of the Advocate on Record or the petitioner shall be provided along with other relevant details.
Delhi High Court Rules says that a party who intends to affect the service of notices through e-mail may provide his/her email address as well as the other party’s email address in the Court.
The Income Tax Rules, 2015 directs that service of notice, summons, requisition, order and other communication by the department may be communicated in the electronic form. For the purpose, the email address provided by the addressee in his/her income tax return shall be utilised.
The purpose of a notice is to inform the other party about the proceedings. From that perspective, the mode of notice is irrelevant as long as the addressee understands the content of the notice.
In the case of Kross Television India Pvt Ltd Vs. Vikhyat Chithra Production[2], the plaintiffs tried to serve the defendants with the notice through courier. However, they shifted from the place, which compelled the plaintiffs to serve the notice through e-mail and WhatsApp. When defendants claimed that there was no proper service of notice, the Court observed that:
“It cannot be that our rules and procedure are either so ancient or so rigid (or both) that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been ‘properly’ served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant.”
The Court opined that the defendants were provided with the previous orders of the Court, allied documents and was intimated with the date of the hearing through Whataspp and e-mail.
This would be sufficient for them ‘to notice’ of the process of the Court.
Since the pandemic hit, the service of processes were also affected due to the non-functioning of courier services and local curfews.
Therefore, the court in re Cognizance for extension of limitation[3] observed that service of summons, notice and pleadings is indispensable in every court proceeding. But such physical delivery of the items may not be possible during the period of lockdown as postal, or courier services are severely hit due to the restriction in movements.
The service of summons may be affected by way of sending them through e-mail, fax message etc. Also, the court included instant messaging applications like WhatsApp, Signal and Telegram in the list.
However, if a party wants the service to be effected by way of an instant messaging application, he shall also a send a copy of the documents through an e-mail.
Conclusion
There is no bar in law to communicate a legal notice through email or other digital platforms. In fact, the Courts are in the way of recognising such digital service of processes. But issuing legal notice through digital means only, may affect the conduct of case sometimes.
If the party to whom the notice was served denies it, the sender shall have to go through a lot of hurdles to prove it. It is because of this reason; processes are served through postal/courier services physically and an acknowledgment is asked from them.
But this seems to be difficult during the pandemic. Physical delivery of the processes may not reach the parties or may get delayed owing to the curfews. This might pose disadvantage to the parties. It may put the postal staff as well as parties at health risk.
So as the Supreme Court has directed, they can be served online. But there should be a proper mechanism to record acknowledgement of the notice. Otherwise, the claim of the party who sent such notice via electronic means may get defeated.
The online service of legal notices shall be encouraged because it can reduce unnecessary delay.
Reference:
- Central Electricity Regulatory Commission Vs. National Hydroelectric Power Corpn. Ltd. & Ors (2010) 10 SCC ↑
- Kross Television India Pvt Ltd Vs. Vikhyat Chithra Production 2017 SCC OnLine Bom 1433 ↑
- re Cognizance for extension of limitation SUO MOTO WRIT PETITION (C) NO. 3/2020 dated 10th July 2020 ↑