Service of summons via email and WhatsApp is deemed valid under the Code of Civil Procedure when proof exists, and delay due to negligence in responding to litigation cannot be condoned in commercial matters.

JUDGMENT :

C. HARI SHANKAR, J.

1. CS (COMM) 517/2020, instituted by Respondent 1, the State Bank of India, against the appellant and Respondent 2 for Rs.17,91,443/-, came to be decreed by the learned Commercial Court by judgment and decree dated 15 April 2023. The judgment and decree were passed after proceeding against the appellant, who was Defendant 1, ex parte, noting the fact that the appellant had been served by email as well as WhatsApp and had failed to enter appearance on 25 November 2020.

2. The appellant preferred an application before the learned Commercial Court under Order IX Rule 13 of the Code of Civil Procedure, 1908, [“CPC” hereinafter,] for setting aside the aforenoted ex parte judgment and decree. It was specifically contended, by the appellant, in the said application, that the appellant had never been served with summons in the suit and was, therefore, unaware of the proceedings therein.

3. The application came to be dismissed by the learned Commercial Court by order dated 29 October 2024. We deem it appropriate to reproduce paras 2 and 7 of the said order, thus:

“2. Ms. Ritika Mitra, Ld. Counsel for the defendant no. 1 namely Argha Chatterjee has submitted that defendant no. I was never served any summon of the suit and submitted that the predecessor of this court had wrongly relied upon the report of process server, in accordance with which, the summon to defendant no. 1 were stated to be served vide email and Whatsapp. She has also submitted that the defendant no. 1 is alleged to have been served through email and whatsapp, but from which email, the said summon was sent to the defendant no. 1 on his email, is not mentioned on the summon. She has also submitted that service of summons through email and whatsapp cannot be looked into and she has further submitted that the defendant no. 1 had received the letter dated 23.03.2024 of the Ld. Counsel for the plaintiff on dated 01.04.2024 and the present application under Order 9 Rule 13 of CPC for setting aside the exparte judgment and decree dated 15.04.2023 has been filed on 22.04.2024 and submitted that since the defendant no. 1 was not served summons of the suit, so, the exparte judgment and decree dated 15.04.2023 are liable to be set aside. She has relied upon the judgmentsBhiv Chandra Shankar Morya v. Balu Gangaram Morya & Ors. , (2019) 6 SCC 387,G.P. Srivastava v. RK. Raizada & Ors. , (2000) 3 SCC 54 , Robin Thapa v. Rohit Dora , AIR 2019 SC 3225 .

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7. Since the report of process server reveals that the defendant no. 1 was served through email and Whatsapp on his mobile phone number on dated 25.11.2020, the correctness of email ID and phone number of the defendant no. 1 as mentioned in the said summon, is not disputed in this application under consideration. The process server has also stated that he had also telephonically informed to the defendant no. 1, so, I have no ground to disbelieve the report of the process server, which reveals that the defendant no. 1 was served summons through email and whatsapp on dated 25.11.2020 for 16.12.2020. But despite of service of the summons to the defendant no.1, he failed to appear in the court on 16.12.2020 and also on subsequent date of hearing and vide order dated 10.02.2021, the defendant no. 1 was proceeded ex parte and exparte judgment was passed on dated 15.04.2023. Since this court has come to the conclusion that there was no infirmity in the services of the summons to defendant no.1 through email and Whatsapp on dated 25.11.2020. Therefore, I am inclined to hold that the fact of pendency of the said civil suit against defendant no. 1, was