Sending a summons in a picture format over WhatsApp does not amount to overreaching the judicial system: Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12th January 2022 CM(M) 36 2022 ICICI BANK LIMITED Petitioner Through: Mr. Dayan Krishnan Sr. Advocate with Mr. Ripu Daman Bhardwaj Mr. Deepak Kaushik and Mr. Sanjeev Bakshi Advocates. RASHMI SHARMA Through: None. Respondent HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J. CM No. 2057 2022Allowed subject to all just exceptions. The application stands disposed of. CM(M) 36 2022 & CM No. 2056 2022The present petition under Article 227 of the Constitution of India impugns the order dated 2nd December 2021 passed by the District Judge Commercial Court) 06 Central District Tis Hazari Courts New Delhi Commercial Court) in CSNo. 2857 2021 whereby show cause notice has been directed to be issued to the petitioner Bank to be answered and endorsed through the Chairman as to why CM(M) 36 2022 criminal contempt should not be initiated against him for overreaching the The facts giving rise to the filing of the commercial suit leading to the process of the Court. present petition are as follows: i) The respondent 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. ii) 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. iii) In August 2021 the plaintiff filed a commercial suit for recovery against the defendant which was registered as CS No. The summons were issued in the commercial suit on 16th August 2021. The relevant part of the order is set out below: “Issue notice of suitas well as the the annexed accompanying applications with all documents to the defendants on filing of the process fee by the plaintiff. In case any address of the defendant(s) is of outstation the ordinary process be sent through the District Judge concerned. Process be also sent through registered speed post AD. The sealed covers containing the summons and complete paperbook of the case be handed over dasti to the plaintiff counsel for putting the same in the postal CM(M) 36 2022 transmission. The original postal receipt(s) along with the downloaded tract report from the site of India Post be placed on record by the plaintiff counsel on the next date. In case the plaintiff has any e mail fax ID and mobile numberof the defendant defendant be served under Rule12 of the Delhi Court Services of Process By Courier FAX and Electronic Mail Service Rule 2010. The plaintiff shall file the affidavit qua the same. In terms of Rule 13 plaintiff is directed to place on record a copy of the plaint and· documents in electronic format scanned images in compliance of Rule 13 for process. Requisite process fee for sending process by e mail in compliance of Rule 14 be also filed alongwith the copies as above for onward transmission to Nazarat Branch Tis Hazari Courts for service through e mail.” same with 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. 7. When the matter came up before the Commercial Court on 2nd CM(M) 36 2022 December 2021 the contention of the defendant was noted by the 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. Relevant observations of the Commercial Court are set out below: “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. XXX XXX 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. Show cause notice be replied forwarded or endorsed through the Chairman of the plaintiff bank for the next date of CM(M) 36 2022 Senior counsel appearing on behalf of the plaintiff assails the impugned order on the following grounds: There was no violation of the order dated 16th August 2021 passed by the Commercial Court inasmuch as the plaintiff had taken steps for the ordinary service as well as service through speed post upon the defendant. ii) Process fee was duly filed in terms of which the summons were prepared for ordinary service by the process server and summons in respect of service through speed post were handed over to the plaintiff to be sent through speed post. iii) Even though steps were not taken by the plaintiff for service through email but the photograph of the summons were duly sent to the defendant through WhatsApp as provided in the order dated 16th August 2021. iv) The photocopy of the summons were sent through WhatsApp only to ensure presence of defendants before the Commercial Court on the next date of hearing. v) Reliance has been placed on the order dated 10th July 2020 of the Supreme Court in Suo Moto W.P.(C) No. 3 2022 to contend that the Supreme Court itself during the period of lockdown had directed service to be affected through various electronic means including WhatsApp. vi) Even if the photograph of the summons were sent to the defendant through WhatsApp no case of contempt has been made out much less 10. None appears on behalf of the respondent despite advance service. In the facts and circumstances of the case no notice is required to be issued to In the considered view of this Court there was no occasion at all for criminal contempt. the respondent. CM(M) 36 2022 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. 12. The Supreme Court in its judgment in Dr. Prodip Kumar Biswas Vs. Subrata Das and Ors. 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 CM(M) 36 2022 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. 15. 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. JANUARY 12 2022 Sakshi R. AMIT BANSAL J CM(M) 36 2022 

Summary: The plaintiff sent the photograph of the summon through WhatsApp, hence the Delhi High Court set aside an order that was passed by commercial court that issued a show cause notice of criminal contempt. The following order was passed by Hon’ble Justice Amit Bansal while dealing with a plea that challenged the order of commercial court in the case of ICICI BANK V. RASHMI SHARMA[CM(M) 36/2022. In the present case, the accused person sent the photograph of the summon to the person who was summoned through WhatsApp, on this subject the commercial court initiated criminal contempt proceedings against the accused. The accused hence filed a writ petition under article 226 impugning the order dated 02.12.2021 that was passed by the district judge at Tis Hazari court for criminal proceedings for sending summons over WhatsApp and in this case the other party had not received any summon from the side of the court even after the plaintiff paying all the required fees. The commercial court on this subject held that this is nothing but “overreaching the judicial system” and said no party can start their own “parallel system”. Delhi High Court on this matter “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 was 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”. The Delhi High Court also gave the reasoning that especially when the plaintiff had paid the fees and taken all the steps for ensuring the summons is also sent through ordinary method such proceedings cannot take place. The court further observed “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” hence setting aside the commercial court order. Further on the subject of commercial court’s jurisdiction to pass such an order the Delhi High Court observed “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 jurisdiction vested with the commercial court” so it also held that the court was not even empowered to pass such orders. In such cases what we should see is whether the accused tried to stop the administration of justice or not, because if the accused has taken all the required steps to get the summon served and as an additional measure to get the summon served sent a photo of it via WhatsApp then how is the administration of justice being hindered. Further in line with the judgment of Dr. Prodip Kumar Biswas V. Subrata Das and Ors. the Supreme Court also 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.