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?