‘Popularity is not a measure of reliability’ appears to have played on the minds of the Supreme Court, which on Wednesday said messages exchanged on social media platform WhatsApp have no evidential value and that the author of such WhatsApp messages cannot be tied to them, especially in business partnerships governed by agreements.
A bench of Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy said, “What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages.” The issue related to a December 2, 2016 Concession Agreement between South Delhi Municipal Corporation and a consortium comprising A2Z Infraservices and another entity for collection and transportation of waste materials. On April 28, 2017, A2Z entered into another agreement with Quippo Infrastructure (now Viom Infra ventures) for carrying out a part of the contracted work and it was agreed that all monies received by A2Z would be deposited in an escrow account from which payments would be made to parties.
On May 28 last year, A2Z terminated the contract agreement and Quippo moved the Calcutta HC on September 14 for appointment of an arbitration panel on certain issues relating to the contract agreement with A2Z. The parties agreed for an arbitrator on January 14 this year.
A single judge bench of the Calcutta HC was told by Quippo counsel about a WhatsApp message of March 19, 2020 in which A2Z purportedly admitted payment of Rs 8.18 crore due to Quippo. Quippo also showed an email of year 2018 in which A2Z had agreed to deposit all money received from SDMC in an escrow account.
A2Z told HC that the WhatsApp message was forged and fabricated. But, the HC directed A2Z to “deposit all the money received by them in future from South Delhi Municipal Corporation in connection with the work covered by the Master Service Agreement in the escrow account subject to further direction in this behalf by the arbitral tribunal or the arbitral award that may be passed”.
Appearing for A2Z before the SC on Wednesday, senior advocate Ranjit Kumar said though the agreement was terminated and the dispute stood referred to arbitration, it was incomprehensible why the HC ordered all receivables from SDMC be deposited in the escrow account. “I will not be able to pay workers engaged in the collection and transportation of solid waste management in Delhi. Why should the HC believe a WhatsApp message when we have disputed it as forged and fabricated.”
For Quippo, senior advocate Ritin Rai said that the escrow account was created on the basis of an agreement for equitable distribution of the money between the parties. However, the SC bench led by CJI Ramana said that once the matter has been referred to arbitration, why should a party which terminated the agreement deposit the receivables in an escrow account?
“Prima facie we are not satisfied with the HC direction for depositing the money in an escrow account. We are not considering the purported admission in WhatsApp message. If it is not late, then go before the arbitrator and parties would be bound by the arbitrators award,” the bench said. However, with Rai persisting on his stand, the bench issued notice and asked Rai’s client to file a reply to the petition by A2Z