Summons through Whatsapp: Bombay High Court sets a new benchmark

By: Snigdha Panigrahi

With technology revolutionizing communication, Justice Gautam Patel might start a judicial trend.The producers of the movie “Pushpaka Vimana” a Kannada movie released in February 2017, is alleged to have been copied from a Korean movie named “Miracle in Cell No.7” released in 2013. The producers are facing a copyright infringement case. In this case, the plaintiff’s have tried to serve the summon on defendants address by courier and hand delivery havingobtained their addresses from the secretariat of Central Board of Film Certification. The first defendant i.e. AK Vikhyat changed his address in order to evade service. On contacting him   over his   mobile phone the true caller app displayed his contact and the Whatsapp status revealed his status as Pushpaka Vimana. Vikhayat and Deepak Krishna received the      copies of plaint, notice of motion and order of 17th March, 2017. This was acknowledged by Vikhyat’s reply, “‘I dint understand anything. Will check with my legal team and I’ll text you back. I am out of station.” the email and that the matter will be heard in court was delivered to the defendants.

Justice Gautam Patel noted in his order-

“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 limitations 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’…

…Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion.”

Despite several attempts on the part of the plaintiff, the defendants neither replied to the      notice of motion nor appeared before the Court. Vikhyat and Krishna were only trying to evade the service. The purpose of service notice to the defendants was to make them aware, which was fulfilled by exchange of emails and messages. Dr. Saraf appearing for the plaintiff prayer for prevention of distribution or exhibition of the movie in any form and pass an ad-interim   order. Justice Patel prima facie agreed with the argument made by the petitioners that the Pushpaka Vimana was a “colourable imitation of the Korean movie. Consequently, the ordered to grant temporary injunction restraining from showing, exhibiting,communicating or making it   available for the public and also restrained from entering into any agreement with the third parties for grant of satellite rights. An injunction order was passes against the defendants refraining any person to create any rights in the Kannada film.