Is an intimation sent by SMS/Text/Messenger a legal notice?

Question

Jurisdiction: Maharashtra, India

An agreement has recently come up for renewal. The clause that has my concern reads as below

The lessor shall have, in the event of the lessee's breach of or default under this agreement and/or the lessor being of the view that the lessee is not cooperating and/or not complying with the terms and conditions of this Agreement, a right to terminate this Agreement and the licence granted hereunder, after issuing to the lessee a prior written notice of not less than 3(three) months by registered post, or speed post (and also by (i) email where email id of the lessee is available; and (ii) SMS and/or whatsapp where the mobile phone number of the lessee is available)

The last bit ( SMS and/or whatsapp ... ) is what I'm curious about. To the best of my understanding (unlike Whatsapp which is built upon the TCP/IP stack) SMS is not a connection-oriented protocol i.e. Message Sent does not equate to Message Received. Although TSP do endeavour to provide a receipt, delivery of an SMS may fail silently. It may even transpire that an SMS is delivered only partially. Ergo, whilst the lessor may have sent the message (and have proof of dispatch) it does not follow that the message was received and received in the form intended.

Is there a precedent elsewhere (outside India) for an intimation sent by SMS to be deemed a legal summons? What, if any, is the defence against this clause?

Answer 1

While I am not sure about an SMS precedent, it is not uncommon in US contracts for a contract to specify that a notice is deemed delivered when it is placed in ordinary First Class US mail, properly addressed, although such mail makes no attempt to assure a receipt, and is in no way guaranteed delivery. Indeed I suspect that SMS is rather more reliable, although I have no statistics at hand.

Note that in this case the language specifies that notice is to be sent by registered post and also by email, SMS, or Whatsapp. Thus there should always be proof via the registered letter, and normally quick delivery by electronic means.

In any case the parties to the contract may specify whatever methods of delivery they choose. If they wish to allow notices to be sent by smoke-signal or carrier pigeon, they may do so, at their mutual risk of non-receipt.

Answer 2

Any form of communication the contract specifies is legal

SMS is specified by the contract so providing the notice is received more than 3 months before the end date, the contract provisions have been satisfied. The “and also” in the parenthetical quote is likely to be read as “and also these alternatives”, i.e. they are additional options where the party has shared an email or phone number.

The fact that there is no delivery confirmation is irrelevant - there is no delivery confirmation of speed post and emails can fail silently too although it is very uncommon. If there is a dispute over whether or when a communication was received, the parties will submit evidence and the judge will decide what happened.