Acknowledgment by WhatsApp: Sections 18 and 65B in the Same Suit
The plaintiff, a commission agent at Jamnagar, filed Summary Suit No. 9 of 2025 on 15 March 2025 for recovery of Rs. 12,00,000 on a promissory note dated 5 May 2019 payable on demand. It is common ground that limitation under Article 34 of the Limitation Act, 1963 began on 5 May 2019 and, being extended by a signed acknowledgment dated 10 January 2022 written on the last page of the plaintiff's ledger, expired on 9 January 2025. To save the suit the plaintiff relies on a WhatsApp message dated 20 February 2024 said to have been sent from the defendant's mobile number: 'બાકી રકમ ચૂકવવા માટે હું જવાબદાર છું, પણ મારે છ મહિનાનો સમય જોઈએ.' He seeks to prove it by a screenshot printout with a certificate styled under Section 65B(4) of the Indian Evidence Act, 1872, signed by his son, who operates the handset registered in the plaintiff's name. The certificate does not describe the device, the manner of extraction or the period. The defendant has applied for leave to defend, denying both the number and the message, and pleads limitation; the original ledger is not produced and the son is not examined.
1. Can the WhatsApp printout be exhibited at all? Consider the certificate and who has signed it.
Read the worked answer
Admissibility is the first gate. Evidence in a suit of 2025 is governed by the Bharatiya Sakshya Adhiniyam, 2023, under which a printout of an electronic record is a secondary record admissible only with a certificate in the prescribed form, mirroring the requirement of Section 65B(4) of the 1872 Act (Anvar P.V. v. P.K. Basheer; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal).
Two defects exist. First, though a certificate wrongly labelled Section 65B(4) can be read as one under Section 63(4) if it contains the prescribed particulars, this one does not: it omits the device, the manner of extraction, the period covered, and the statement that the computer was working properly. Second, the certifier's competence is doubtful: the handset stands in the plaintiff's name and the plaintiff is in the witness box, while the son who actually operates it is neither examined nor produced.
Curable or not? The court may permit a fresh and proper certificate at any stage before judgment on such terms as it thinks fit (Arjun Panditrao, para 61), and should ordinarily do so here rather than shut out the document, remembering that oral evidence cannot substitute for the certificate.
2. If the printout is admitted, does the message amount to an acknowledgment under Section 18 of the Limitation Act, 1963, so as to give a fresh period from 20 February 2024?
Read the worked answer
Section 18 gives a fresh period only for a writing signed by the party against whom the right is claimed, or by a person duly authorised, made before the prescribed period expires.
The timing is satisfied: 20 February 2024 falls before the extended period, which ended on 9 January 2025. The words also satisfy the substance, since an admission of liability coupled with a request for time is an acknowledgment, not a refusal.
The obstacle is the signature. Section 18 requires a signing; it does not dispense with it merely because the admission is otherwise reliable. An electronic record can be authenticated by an electronic or digital signature under the Information Technology Act, 2000, and Section 4 gives electronic records legal recognition; but a message must first be proved to have been sent by the defendant. That link is missing: ownership of the number is not proved, the defendant denies it, and no subscriber record or Section 63 certificate establishes authorship. If authorship is proved, the message is capable of being treated as a signed writing; if not, it is a mere assertion by the plaintiff. Unless that is done, limitation expired on 9 January 2025 and the suit of 15 March 2025 is barred.
3. How should the leave-to-defend application in the summary suit be decided?
Read the worked answer
Order XXXVII Rule 3(5) requires the court to grant leave where the defence raises a triable issue, and to refuse it only where the defence is sham, moonshine or practically impossible.
Here the defence is not repayment. It is limitation, and it turns on whether the WhatsApp message is a valid acknowledgment. That depends on proof of authorship, the ownership of the mobile number and the sufficiency of the electronic certificate: a mixed question of fact and law on which evidence must be led. It is quintessentially a triable issue, and the plaintiff's own pleading shows that the only acknowledgment for the later period is electronic.
Leave should therefore be granted, and ordinarily unconditionally, because the defence is not merely plausible but capable of defeating the suit outright. A condition of security is appropriate only where the defence is a delaying tactic or where a part of the claim is admitted; nothing appears to be admitted here. Refusing leave and decreeing the suit at this stage would foreclose the defendant's opportunity to test the electronic record and would invert the scheme of Order XXXVII.