The Supreme Court’s Final Order in ‘In Re: Extension of Limitation Case’: Is Complete Justice Under Article 142 Served? – By Pawan Reley

April 16, 2021

The Hon’ble Supreme Court passed an order dated 8.03.2021 in the case of “In Re: Cognizance for extension of limitation”, Suo Motu Writ Petition (Civil) No. 3 of 2020 lifting the extension of limitation granted through its order dated 23.03.2020 and held that period from 15.03.2020 to 14.03.2021 is excluded from limitation period in order to file any Petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (Both Central or State).

The order dated 8.03.2021, inter-alia did not explicitly clarify the following points:

POINT NO. 1: Whether the order dated 8.03.2021 will apply to the cases filed between 15.03.2020 to 8.03.2021?

POINT NO. 2: If the order dated 8.03.2021 will also apply to the cases filed between 15.03.2020 to 8.03.2021, then whether it will benefit the parties to the case who were in a position to file the relevant pleading before the appropriate court physically or virtually but did not file in order to harass another party?

POINT NO. 3: If the order dated 8.03.2021 did not intend to benefit the party that was in a position to file the relevant pleading before the appropriate court physically or virtually, but did not file the same deliberately. Then whether the appropriate court has any discretion to adjudicate the issue and stop the party to take undue advantage of the order dated 8.03.2021?

POINT NO. 4: What will be the impact of the order dated 8.03.2021 on the order dated 6.05.2021 and whether the cases under Section 138 of Negotiable Instruments Act, 1881 dismissed as time barred as per order dated 6.05.2020 will reopen in light of the recent order dated 8.03.2020?

The problem in the said order is not about lifting of the limitation or about excluding the period of limitation from 15.03.2020 to 14.03.2021 but about not giving the appropriate court or authority any discretion to adjudicate that whether the party appearing before it was really not in a position to file the relevant Petition/application/suit/appeal/any other proceeding due to the Covid-19 lockdown.

It must be noted that the object for the first order dated 23.03.2020 passed by the Hon’ble Supreme Court was to obviate the difficulties faced by the litigants and advocates due to Covid-19 and to ensure that lawyers/litigants do not have to come physically to file proceedings in respective court/tribunal across the country. The relevant parts of the order dated 23.03.2020 are extracted hereinbelow:

“This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such 2 proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”

It is relevant to note that the situation of Court functioning has been different in each taluka, district and State during COVID-19 after 15.03.2020. Somewhere the functioning has been extremely well, while somewhere it has been equally bad. Somewhere the court was being managed through e-filling and somewhere e-filing did not exist. For example, in Delhi, the district courts were completely being managed through e-filling. Delhi District Courts had given the option to the parties to file the cases either physically or virtually according to their convenience. There are many States or districts which followed the same path as Delhi. It means that there are many courts in the country where the lawyers/litigants did not have to come to court to file the pleading physically during Covid-19. The situation on 23.03.2020 was quite different from the situation existing in March 2021.

Thus, three situations arise to which the order dated 8.03.2021 passed by the Hon’ble Supreme Court applies:

Situation No. 1: Where the party was really not in a position to file the pleading physically or virtually due to Covid-19.

Situation No.2: Where the party was clearly in a position to file the pleading physically or virtually despite Covid-19 and the same is evident from its past records.

Situation No.3: Where it is not clear by the assessment of the appropriate court that whether the party was in a position file the pleading physically or virtually during the pandemic.

The order dated 8.03.2021 rightful and serves justice in Situation No. 1 and in Situation No. 3. However, it may create harassment and result in injustice for the parties in Situation No. 2. At this juncture, it is apt and apposite to narrate what falls under Situation No. 2. For example, if the plaintiff has filed the Summary Suit under Order 37 for the recovery of money on September 1, 2020. The defendant has filed the memo of appearance within time, that is on September 8, 2020. The Court has issued the Summons for Judgment to the defendant which was duly served to the defendant on September 22, 2020. Here, the defendant was required to file “leave to defend” within 10 days i.e. on or before October 2, 2020.  Defendant did not file leave to defend in time rather filed some other applications such as the application under Section 8 of the Arbitration of Conciliation Act to refer the matter to the arbitrator. It is evident that the defendant is able to file all the applications and pleadings in time. When asked by the court the reason for non-filling the “leave to defend” on time, the defendant shows the order dated 8.03.2021 and states that he still has 90 days’ time period to file leave to defend.

The questions here are whether the order dated 8.03.2021 is not going against the interest of the plaintiff who had an extremely good case and filed the summary suit for the speedy recovery of money? Will the defendant not take undue advantage of the order dated 8.03.2021 to harass the plaintiff and will bear no consequences? Whether the order dated 8.03.2021 will not make the object and purpose of the special statute otiose? Was it not rightful for the Hon’ble Supreme Court to leave the discretion on the appropriate court to decide whether the party was really not in a position to file relevant pleading in time under general or special law due to the pandemic? Whether the order dated 8.03.2021 really served complete justice between the parties even if it was evident that the party was in a position to file the pleading physically or virtually during Covid-19?

Another problem in the order 8.03.2021 is that it did not clarify or delve into the order dated 6.05.2020 in IA No. 48411/2020 in the said case. The order dated 6.05.2020 provides that:

In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown.

The problem now is that what will happen to the cases under Section 138 of the Negotiable Instrument Acts, 1881 where the complaints were dismissed by the trial court being time barred in light of the order dated 6.05.2020. For example, if the complainant had served the legal notice to the defendant on 1.03.2020 under Section 138 of the Negotiable Instruments Act. Then the limitation for filling the case will expire on 15.04.2020 which is clearly after 15.03.2020. Complainant did not file the complaint in time in light of the order dated 23.03.2020 passed by the Hon’ble Supreme Court. If the lockdown was lifted on 10.05.2020 in the area where the case was required to be filed, then the complainant in light of the order dated 6.05.2020 had time to file the complaint before 25.05.2020, not beyond it. Suppose the complainant filed the complaint on 25.06.2020 before the appropriate court and if the same was dismissed by the court being time barred as per order dated 6.05.2020, then will the recent order dated 8.03.2021 provide relief to the aforementioned cases also? Will cases under Section 138 of Negotiable Instruments Act dismissed as time barred as per order dated 6.05.2020 reopen in light of the recent order dated 8.03.2020?

It must be noted that the Hon’ble Supreme Court passed all the orders in “In Re: Cognizance for extension of limitation”, Suo Motu Writ Petition (Civil) No. 3 of 2020 under Article 142 of the Constitution of India in order to serve complete justice to the parties to the Petitions/applications/suits/appeals/all other proceedings. Thus, if the outcome of the order is used by one party merely to harass another party for not filling the pleadings in time, as stated above, then the entire purpose of all the orders will fail. It must be noted that the eventualities arising in every case may be different and therefore were required to be dealt with accordingly, in the facts of circumstances of each case.

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Pawan Reley is an advocate practicing at the Supreme Court of India. 

Disclaimer: The views or opinions expressed are solely of the author.