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January 29, 2022

Delhi HC: Summoning through WhatsApp not Overreach of Judicial System

by Mahesh Mara in Legal Court Judgement

Delhi HC: Summoning through WhatsApp not Overreach of Judicial System

Fact and Issue of the case

The facts giving rise to the filing of the commercial suit leading to the present petition are as follows:

The respondent (hereinafter ‘defendant’) approached the plaintiff for grant of a car loan cum hypothecation scheme of Rs.5,01,000/-for the purchase of a vehicle. The loan documents were executed and the loan was duly sanctioned to the defendant on 21st November, 2019. The defendant defaulted in payments of monthly instalments towards repayment of the loan and consequently, issued a notice dated 16th April, 2021 to the defendant to recall the loan facility available to the defendant.

In August, 2021, the plaintiff filed a commercial suit for recovery against the defendant which was registered as CS (COMM.) No. 2857/2021. The summons were issued in the commercial suit on 16th  August, 2021. In terms of the aforesaid order passed by the Commercial Court, the plaintiff took steps for affecting service on the defendant through ordinary process as well as speed post, by filing process fee and sealed covers containing the summons and paper book respectively. Pursuant thereto, steps were taken for affecting service on the defendant by ordinary process as well as through speed post. In this regard, reference may be made to the speed post notices issued and the speed post tracking report, as also the report of the Ahlmad, attached to the Commercial Court. In addition to the service through the above modes, the plaintiff also sent the photograph of the summons issued by the Commercial Court to the defendant by means of WhatsApp since the plaintiff had the phone number of the defendant provided in the loan documents.

When the matter came up before the Commercial Court on 2nd Commercial Court that the defendant had received a private notice of appearance for the said date through WhatsApp on 30th November, 2021 and further, that the defendant had not received any notice/summons from the Court. The contention of the plaintiff was also noted that the plaintiff had filed the process fee and in addition thereto, photograph of the summons was also sent through WhatsApp to the defendant. On the basis of the above, the Commercial Court passed the impugned order issuing show cause notice to the plaintiff as to why criminal contempt proceedings be not initiated against the plaintiff.

Observation of the court and conclusion

Today this kind of debacle was seen in other cases of ICICI Bank Ltd. also but it was ignored. Now it appears that that plaintiff has adopted this kind of practice on a regular basis for the reasons best known to it and it certainly amounts to over reaching the judicial system. No party has a right to start a parallel system along with the judicial proceedings. The plaintiff has been called upon to explain the same. Plaintiff to show cause as to why the action be not recommended against it for the criminal contempt of the court for over reaching the process of the court.

In the considered view of this Court, there was no occasion at all for the Commercial Court to issue show cause notice for initiating criminal contempt against the plaintiff. Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system. The aforesaid observations were completely uncalled for. As noted above, the plaintiff had duly filed process fee and taken steps for issuance of regular summons to the defendant through the ordinary process as well as speed post. The photograph of the summons were sent through WhatsApp only as an additional measure so as to ensure the appearance of the defendant before the Commercial Court. There is nothing malafide in the same and it cannot be said that that was an attempt to overreach the judicial proceedings. It was not that the plaintiff had sought to send the summons through WhatsApp in substitution of the ordinary service to the defendant. It was only sent as a secondary measure to ensure the presence of the defendant on the next date. Therefore, Commercial Court has completely gone overboard in issuing notice for initiating contempt proceedings.

The Supreme Court in its judgment in Dr. Prodip Kumar Biswas Vs. Subrata Das and Ors. (2004) 4 SCC 533, while dealing with the issue of criminal contempt has observed that proceedings for criminal contempt can be initiated only when the act prejudices or interferes or tends to interfere with the course of judicial proceeding or administration of justice. Contempt of court is a special jurisdiction which ought to be exercised sparingly and with great caution. Contempt proceedings should not be initiated lightly.

In any case, in view of Sections 10 and 15 of the Contempt of Courts Act, 1971, only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume jurisdiction and issue show cause notice as to why contempt proceedings be not initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. Therefore, the impugned order is clearly in excess of the jurisdiction vested with the Commercial Court. In view of the above, the order passed by the Commercial Court suffers from patent illegality and is also without jurisdiction and hence, cannot be sustained. Accordingly, the petition is allowed and the impugned order is set aside to the extent show cause notice for initiating criminal contempt proceedings has been directed to be issued to the plaintiff.

Read the full order from below

Delhi-HC-Summoning-through-WhatsApp-not-Overreach-of-Judicial-System

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