The Bombay High Court has clarified that in exceptional circumstances where traditional service of summons is unfeasible, courts may authorize substituted service via electronic mail under the Code of Civil Procedure. This ruling reinforces the judiciary’s adaptive approach to procedural justice in an increasingly digital legal landscape.
Background & Facts
The Dispute
The plaintiffs, Poonawalla Fincorp Limited and another, initiated a civil suit against multiple defendants, including Maxis Lobo, alleging fraudulent email communications and cyber-enabled financial misconduct. The defendants, particularly Defendant Nos. 1 and 6, had ceased physical communication and were unreachable through conventional means such as personal service or registered post.
Procedural History
- October 30, 2025: Plaintiffs filed a criminal complaint under the BNS and IT Act, alleging forged email IDs created by Defendant No. 1.
- November 6, 2025: Court granted ad-interim relief, including restraint on asset transfers.
- January 7, 2026: Court directed the Cyber Police, Thane, to investigate the authenticity of email IDs used by defendants and report findings.
- January 21, 2026: Cyber Police submitted a report confirming that the email IDs attributed to Defendant No. 1 were prima facie fake and that further investigation was ongoing.
- February 18, 2026: Plaintiffs moved Interim Application (L) No. 5613 of 2026 seeking permission to serve summons electronically.
Relief Sought
The plaintiffs sought permission to serve writs of summons on Defendant Nos. 1 and 6 via their known email addresses under Order V Rule 9A read with Section 151 of the Code of Civil Procedure, 1908, and to effect substituted service on Defendant No. 2.
The Legal Issue
The central question was whether Order V Rule 9A of the Code of Civil Procedure, 1908, read with Section 151, permits substituted service of summons via electronic mail when traditional methods have failed and the defendants are deliberately evading service, particularly in cases involving digital fraud.
Arguments Presented
For the Petitioner
The plaintiffs relied on Smt. Sushila Devi v. Smt. Kamla Devi and S. R. Batra v. Tarun Batra to argue that Section 151 empowers courts to act in the interest of justice when procedural rules are insufficient. They emphasized that the defendants’ use of fake email IDs and refusal to respond to physical notices constituted an abuse of process. The plaintiffs contended that electronic service was the only viable method to ensure due process and prevent delay in adjudication.
For the Respondent
Defendant No. 3, represented by Ms. Sodani, did not oppose the application but sought dispensation of her own presence, asserting full compliance with prior orders. Defendant Nos. 1 and 6 were absent and had not filed any written opposition. No legal objection was raised by any party against the proposed mode of service.
The Court's Analysis
The Court examined the evolving nature of service in civil litigation, particularly where fraud is alleged through digital channels. It noted that the defendants’ conduct - creating fake email IDs and avoiding physical service - demonstrated a clear intent to obstruct judicial process. The Court held that Order V Rule 9A was designed precisely for such situations where service through ordinary means is impracticable.
"The Court cannot allow the machinery of justice to be stalled merely because the defendants have chosen to operate in the shadows of digital anonymity."
The Court further held that Section 151 of the CPC, as a residuary provision, grants inherent powers to ensure that procedural rules do not become instruments of injustice. The prior investigation report confirming the falsity of the email IDs provided sufficient corroboration for the court to infer that electronic service was not only reasonable but necessary. The Court also emphasized that the plaintiffs had demonstrated due diligence in attempting traditional service and had identified specific, active email addresses linked to the defendants.
The Court rejected any rigid interpretation of service rules that would favor evasion over access to justice. It affirmed that in cases involving cyber fraud, courts must be empowered to adapt procedural mechanisms to the reality of modern communication.
The Verdict
The plaintiffs succeeded. The Court held that substituted service via electronic mail is permissible under Order V Rule 9A and Section 151 of the Code of Civil Procedure, 1908, when traditional service is unattainable and the defendants are evading process through digital means. The application was allowed, and substituted service was authorized for Defendant Nos. 1, 2, and 6.
What This Means For Similar Cases
Electronic Service Is Now a Viable Alternative
- Practitioners may now file applications under Order V Rule 9A with supporting affidavits showing failed attempts at personal or registered service
- Evidence of digital footprints (e.g., active email IDs, social media handles, prior correspondence) must be annexed to establish the defendant’s accessibility
- Courts will consider the nature of the dispute - especially fraud or cyber-related claims - as a factor favoring electronic service
Due Diligence Is Non-Negotiable
- Plaintiffs must demonstrate exhaustive efforts to serve via conventional means before invoking substituted service
- Affidavits of service attempts, postal receipts, and witness statements are mandatory
- Failure to prove diligence may result in rejection, even if digital addresses are known
Courts Will Not Tolerate Evasion Through Digital Anonymity
- Defendants who create fake identities or use disposable email accounts risk having service deemed valid via their active digital channels
- This ruling signals a shift: digital evasion will not shield parties from judicial process
- Legal teams should proactively identify and document digital identifiers of defendants in high-risk commercial disputes
