The Year That Wasn�۪t
Introduction
In March 2020, a full bench of the Hon’ble Supreme Court of India (“SC”) vide In Re: Cognizance for Extension of Limitation[1] (“Extension of Limitation”) took suo moto cognizance of the difficulties faced by litigants on account of the nation-wide lockdown due to the COVID-19 pandemic. Given the practical problems in filing suits, applications, petitions, appeals and any other proceedings within the limitation period, the SC on March 23, 2020, passed an order extending the limitation period prescribed under the general and special laws with retrospective effect from 15.03.2020, until further orders (“Order dated 23.03.2020”). The SC exercised this power under Article 142 read with Article 141 of the Constitution of India and declared that this order is binding within the meaning of Article 141 on all Courts/Tribunals and authorities across the nation. Although the SC extended the Order dated 23.03.2020 from time to time, there were certain issues/lacunae that were bound to come up.
Issue
Subsequently, a coordinate bench of the SC in the case of Sagufa Ahmed and Ors. v. Upper Assam Plywood Products Pvt. Ltd. and Ors.[2](“Sagufa Ahmed”) vide its order dated 18.09.2020, held that the Order dated 23.03.2020 passed by it in the case of Extension of Limitation applied only to the prescribed period of limitation and not to the ‘further period’ granted for the condonation of delay. The specific issue before the SC in Sagufa Ahmed was the limitation period provided under Section 421 of the Companies Act, 2013. The SC held that the prescribed period of limitation of 45 days for filing an appeal before the Appellate Tribunal under Section 421 of the Companies Act, 2013, would stand extended by the Order dated 23.03.2020. However, it also held that the further period of 45 days thereafter for condonation of delay, beyond which even the Appellate Tribunal cannot condone the delay, was not extended by the Order dated 23.03.2020.
This judgement of the SC in Sagufa Ahmed brought to light a rather unexpectedly large lacuna in the Order dated 23.03.2020, which affected the rights of a vast portion of litigants who still had time left after 15.03.2020 to utilize their ‘further period’ under various Acts. For example, under Section 34 of the Arbitration and Conciliation Act, 1996, the limitation prescribed for filing an application for setting aside the award is 3 months and thereafter, the further period is 30 days for condoning the delay (when filed beyond the prescribed period of 3 months). However, if in a case the prescribed period of 3 months lapsed on 10.03.2020 and a party had a further period of 30 days from 10.03.2020 to file an application, the period beyond 15.03.2020 would not be extended by the Order dated 23.03.2020 and therefore, the party would be left remedy less during the lockdown period.
Solution
Almost a year later, the SC after many extension orders, finally took up the case of Extension of Limitation and passed a final order on March 8, 2021 (“Final Order”) issuing certain directions. The key takeaways from the Final Order are set out below:
- That the period from 15.03.2020 till 14.03.2021 (“Exclusion Period”) shall stand excluded while computing the period of limitation for any suit, appeal, application or proceeding. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
- Where the actual limitation period has expired during the Exclusion Period, all persons shall have a limitation period of 90 days from 15.03.2021 or the actual balance period of limitation, whichever is greater.
- The Exclusion Period shall also apply to all special laws and any other laws which prescribe periods of limitation for instituting proceedings and outer limits (further period) within which the court or tribunal can condone delay.
With the above Final Order, the SC has effectively passed a blanket order excluding an entire year from the computation of limitation and has explicitly made it applicable to both the original period of limitation as well as the ‘further period’ which the courts can condone.
While the extension of limitation had come to an end with the passing of the Final Order, the abovementioned lacunae pointed out by a coordinate bench of the SC in Sagufa Ahmed has also been addressed indirectly. Though the SC’s view in Sagufa Ahmed was an accurate interpretation of the Order dated 23.03.2020, the SC has now vide its Final Order overridden its Order dated 23.03.2020, thereby rendering Sagufa Ahmed’s interpretation of it, now inconsequential. In conclusion, it is safe to say, that in making the past one year disappear, the SC through its Final Order has also made the consequential issues disappear along with it.
Revival of the SC Order dated 23.03.2021
However, the story does not end there. Due to the recent surge of COVID-19 cases in India, the Supreme Court Advocates on Record Association (SCAORA) filed an application seeking the revival of the suo moto order passed by the SC on 23.03.2020. Consequently, the SC on 27.04.2021, noting the extraordinary situation caused by the sudden and second outburst of COVID-19 virus, extended all periods of limitation ending on 14.03.2021 until further orders, by restoring the order passed on 23.03. 2020. While the Apex Court has once again come to our rescue, fortunately this time around it has done so without reviving the past set of issues. The only question that remains now is, for how long?
The views and opinions expressed in this article belong solely to the author and do not reflect the position of TLH, Advocates & Solicitors.
[1] Suo Motu Writ Petition (Civil) No.3 of 2020
[2] (2021) 2 SCC 317