Where an alternative mode (Whatsapp and Email) is used and service is shown to be effected of the notice, and is acknowledged , then surely it cannot be suggested that the Defendants had ‘no notice’
Recently, in Kross Television India Pvt Ltd & Anr. vs. Vikhyat Chitra Production & Ors[Suit (L) No. 162 Of 2017, decided on 23.03.17], in brief, the Plaintiffs obtained addresses of the Defendant from the Central Board of Film Certification (“CBFC”). The Plaintiffs then attempted to serve the Defendants at those addresses by courier and hand delivery. They were told that the 1st Defendant had shifted its address. The courier was told that the address of the Defendant was changed solely with an intention to evade or avoid service. The Plaintiffs’ Advocates attempted to contact the 1st Defendant, AR Vikhyat, on his mobile number *****37695. The Truecaller mobile phone app showed this to be his mobile number. It was also reflected on his WhatsApp contact information. The WhatsApp status shown the name of the infringing Kannada film, Pushpaka Vimana. In subsequent messages exchanged, Vikhyat accepted that he was the producer of the Kannada film Pushpaka Vimana.
Copies of the plaint, Notice of Motion and the order of 17th March 2017 were served on Defendant No.1, Vikhyat, and Defendant No. 5, Deepak Krishna, by WhatsApp. This was received. Vikhyat replied. He said ‘I dint understand anything. Will check with my legal team and I’ll text you back. I am out of station.’
The Plaintiffs effected service by email at two addresses: firstname.lastname@example.org and email@example.com.
Then the Plaintiffs’ Advocates tried to contact Krishna, Defendant No. 5. It was he who supplied Vikhyat’s mobile phone number. There is an email exchange annexed to this Affidavit.
The Defendants were informed by email and message that the matter would be listed today in the Court. The message was delivered.
The learned judge of the Bombay High Court held that I do not see what more can be done for the purposes of this Motion. 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. We have not formally approved of email and other modes as acceptable simply because there are inherent limitation to proving service. Where an alternative mode is used, however, and service is shown to be effected, and is acknowledged, then surely it cannot be suggested that the Defendants had ‘no notice’. To say that is untrue; they may not have had service by registered post or through the bailiff, but they most certainly had notice. They had copies of the papers. They were told of the next date. A copy of the previous order was sent to them.
Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion.
The Plaintiffs had given the Defendants every opportunity to appear. The past record showed that the Defendants were only avoiding service. It was extremely difficult to even obtain their addresses. Their addresses were in fact obtained when the Plaintiffs contacted the CBFC in Bengaluru and obtained the addresses from that secretariat. The Defendants’ addresses were necessarily with that body since the Defendants obtained certification for their film from that office. The CBFC in fact informed the Plaintiffs that there was only one producer, and it furnished that address.
If Vikhyat and Krishna believe they can resort to these tactics to avoid service, they were wrong. They may succeed in avoiding a bailiff. They might be able to avoid a courier or a postman. They had reckoned without the invasiveness of information technology. Vikhyat in particular does not seem to have cottoned on to the fact that when somebody calls him and he responds, details can be obtained from in-phone apps and services, and these are very hard to either obscure or disguise. There are email exchanges. There are message exchanges. None of these establishes that the Defendants were not adequately served. The Defendants must now face the consequences.