Extension of limitation by Apex Court due to second wave of Covid-19

17 May 2021

by Dinesh Babu Eedi Manasa Tantravahi

The sudden onset of the pandemic Covid-19 in March 2020 had pushed litigants across the country into hardships with respect to the filing of petitions/ suits/ appeals/ applications etcetera and initiating and continuing legal proceedings before the various Courts and Tribunals.

Extension of period of limitation – An overview

Recognizing the distress, the Supreme Court, vide its Order dated 23 March 2020, in In Re: Cognizance for Extension of Limitation, Suo Moto Writ (Civil) No. 3 of 2020, had extended the period of limitation in all cases in proceedings in all Courts/Tribunals throughout the country with effect from 15 March 2020 till further orders (‘Limitation Extension Order’). The Court had exercised its power under Article 142 read with Article 141 of the Constitution of India and declared that the said Order is a binding order within the meaning of Article 141 of the Constitution on all Courts, Tribunals and authorities.

That being so, owing to the necessity in the interpretation of such Order, vide a subsequent Order dated 6 May 2020, the Supreme Court had also extended all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) and under the Negotiable Instruments Act, 1881 (‘NI Act’) with effect from 15 March 2020. Since the said Order came belatedly, the Apex Court had even clarified that in case the limitation had expired after 15 March 2020, for any of the said cases, the period from 15 March 2020 till the date on which the lockdown has been lifted in the jurisdictional area where the dispute lies/ where the cause of action arises, would be extended for a period of fifteen (15) days after the lifting of lockdown.

For further clarity on the issue, the Apex Court vide an Order dated 10 July 2020, had further held that:

  1. In case of instances where a time period has been prescribed (under Section 29A of the Arbitration Act, for the passing of an arbitral award; and under Section 23(4) of the said Act for completion of the statement of claim and defence), the time shall accordingly be extended, in light of the Limitation Extension Order read with the Order dated 6 May 2020;
  2. The time prescribed for completing the process of compulsory pre-litigation, mediation and settlement under Section 12A of the Commercial Courts Act, 2015 (‘Commercial Courts Act’) shall also be extended from the time when the lockdown is lifted plus 45 days thereafter; and
  3. Service of notices, summons, and pleadings may be affected by e-mail, Fax, commonly used instant messaging services, such as WhatsApp, Telegram, Signal etc., as long as physical service is also initiated on the same date.

Interpretation of the Limitation Extension Order by various authorities

In spite of the intent behind the Limitation Extension Order being to provide relief to the litigants across India, the reception to the Limitation Extension Order has been varied across the different authorities and tribunals in India.

Due to some of the orders/ notices issued by some authorities, any relief given to litigants, on account of the said Order, has failed to be implemented everywhere. It is relevant to note that the Limitation Extension Order only served to extend the limitation period computed for initiation of proceedings, filing, etc. and did not serve as a suspension of proceedings.

  • Accordingly, the Office of the Controller General of Patents, Designs and Trademarks (‘CGPDTM’), in response of the said Order, issued multiple notices dated 25 March 2020, 15 April 2020, etc., extending the limitation period for filings from time to time, under Section 10 of the General Clauses Act, 1897 (‘General Clauses Act’), instead of excluding the period indefinitely for computing limitation. Even though the Supreme Court’s Order was to be binding on ‘all Courts/Tribunals and authorities’, the notices issued by CGPDTM referred to Section 10 of the General Clauses Act and not the Limitation Extension Order. Further, the prescription of an end date in the CGPDTM’s notices, instead of an indefinite extension, went beyond the Supreme Court’s Order.
      • As a result of this interpretation taken unilaterally by CGPDTM, there was extreme confusion and sudden overburdening of its offices with filings, especially since the electronic system of CGPDTM was not developed or equipped enough to handle such a sudden influx. Accordingly, a petition was filed before Apex Court, in Intellectual Property Attorney Association and Anr. The Controller General of Patents, Designs and Trade Marks and Anr., W.P.(C) No.3059/2020, challenging the notices issued by CGPDTM and seeking quashing of such notices. Vide an Order dated 21 May 2020, the Apex Court duly set aside the notices and held that the Order dated 23 March 2020, being the Limitation Extension Orders, stands operational for all matters including intellectual property matters.
      • Vide a Press Release dated 24 March 2020, the Ministry of Finance had extended the time-limit for compliances under the Customs Act, 1962 and other allied laws until 30 June 2020, where such time-limit was expiring between 20 March 2020 to 29 June 2020, followed by the Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020, dated 31 March 2020 solidifying such extension. The Customs, Excise and Service Tax Appellate Tribunal (‘CESTAT’), vide its Notification dated 26 March 2020, following the Supreme Court’s Order, had extended the period of limitation for filing appeals and applications with e­ffect from 15 March 2020 till further orders by the Supreme Court. In light of the above, any issue of or reply to show cause notices/ applications/ proof of pre-deposit made, etc. could be filed by any entity after the lockdown period/ after further orders by the Apex Court.
      • In accordance with the Ordinance, various notifications were indeed issued by the Central Board of Indirect Taxes and Customs (‘CBIC’), in April 2020, extending the time limits for filing of appeal, furnishing of return, or any other compliance under the Central Goods and Services Tax Act, 2017 (CGST Act). However, CBIC also implemented the restriction on time limit for taking Transitional Credit under Section 140 of the CGST Act, amended retrospectively by the Finance Act, 2020, with effect from 18 May 2020, to the utter dismay of taxable persons in the country. Further, vide its notification dated 19 January 2021, the CBIC demanded ‘strict compliance to limitation while filing appeals/ petitions before courts/ tribunals’.
      • With context to consumer laws, the Supreme Court in the case of S Group Pvt. Ltd. v. Aaditiya Garg & Another, MANU/SC/0983/2020, while observing that the Consumer Court has no power to extend the time for filing the response to the complaint beyond 45 days, as per Section 38 of the Consumer Protection Act, 2019, held that, in reference to the Limitation Extension Order, the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended, as it is clear from the said Order that the extended period of limitation was applicable to all petitions/ applications/suits/appeals and all other proceedings.
      • It has been deemed by various litigants that an exclusion of the limitation period/ extension in the limitation period also automatically means an extension in the period of condonation of delay by the various courts/ tribunals. However, vide its judgment in Sagufa Ahmed & Ors. Upper Assam Plywood Products Private Limited & Ors., 2020(5) ALT 167, the Apex Court clarified that the period for condonation of delay cannot be enlarged as a consequence of the Limitation Extension Order.

Present status of computation of limitation

All that said and done, since the situation in the country, had improved over time and lockdown was lifted, envisaging a return to normalcy, the Apex Court vide an Order dated 8 March 2021, settled the question of extension of limitation period once and for all.

The Apex Court, while disposing of the writ in Suo Moto Writ (Civil) No. 3 of 2020, held that:

  • In computing the period of limitation for any suit, appeal, application, or proceeding, the period from 15 March 2020 till 14 March 2021 shall stand excluded. The balance period of limitation remaining as on 15 March 2020, if any, is to become available with effect from 15 March 2021.
  • In cases where the limitation would have expired during the period between 15 March 2020 till 14 March 2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15 March 2021.
  • In the event, the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
  • The period from 15 March 2020 till 14 March 2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015, and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

However, due to a rapid deterioration of the situation in the country because of Covid-19’s second wave, an application was filed by the Supreme Court Advocates on Record Association (‘SCAORA’) seeking restoration of the Suo Moto Writ (Civil) No. 3 of 2020 and thereby extending the limitation period for filing of cases in courts and tribunals for a further period beyond 15 March 2021.

Accordingly, vide an Order dated 27 April 2021 the three-judge bench of Justice N. V. Ramana, the Hon’ble Chief Justice of India, Justice Surya Kant and Justice A. S. Bopanna, recognizing the need for ‘extraordinary measures’ to minimize the hardship of litigant-public, has restored the Limitation Extension Order, and ‘in continuation of the order dated 8 March 2021, the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders’. It has also been clarified, in the same order, that the time periods prescribed under the Arbitration Act, NI Act and Commercial Courts Act, as abovementioned, shall also stand excluded from 14 March 2021.

Way forward

As abovementioned, the directions of the Supreme Court have been issued under Article 142 read with Article 141 of the Constitution of India and are consequently binding on all Courts, Tribunals, and authorities in India. Accordingly, the filings or proceedings throughout the country are required to adhere to the Court’s directions on the computation of limitation issued vide the Order dated 27 April 2021.

This latest order also removes a lot of former ambiguities, due to its wide application from the phrase and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings’, thus reducing any scope for the various authorities in the country to take a different interpretation to the said order.

It may be noted that the CGPDTM, while having issued a notice dated 24 March 2021, in line with the Order of the Apex Court dated 8 March 2021 hereinabove, is yet to issue a revised notice in line with the order dated 27 April 2021.

The CBIC, to the immense gratitude of taxpayers, vide various notifications issued since 27 April 2021, has (a) lowered interest rates for tax periods for the months of March and April 2021, (b) extended the time periods for completion of any proceeding or passing of any order or issuance of any notice, intimation, notification, sanction or approval or such other action, by whatever name called, by any authority, commission, tribunal, filing of any appeal, reply or application or furnishing of any report, document, return, statement by any other person etc., depending on the time period provided, up to 15 June 2021, and (c) extended the time for filing various forms, Form GSTR-4, Form GST ITC-4 etc. up to 31 May 2021, and Form GSTR-1 pertaining to outward supplies up to 26 May 2021.

While the latest order may be considered as fresh relief to litigants everywhere, it remains to be seen whether the actions taken by authorities, especially governmental bodies, against aggrieved parties, are in the spirit of the order.

[The authors are Joint Partner and Associate, respectively, in the Corporate and M&A practice at Lakshmikumaran & Sridharan Attorneys, Hyderabad]


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