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2022 DIGILAW 783 (KER)

Shafeer v. Rahul

2022-09-15

SATHISH NINAN

body2022
ORDER : On objections by the Registry regarding the computation by the appellants regarding the period of limitation in filing of these appeals, the memorandums have been placed before the Court as unnumbered appeals. 2. Clarification sought is regarding the calculation of limitation in the light of the exclusion and extension of the period of limitation granted in SUO MOTU WRIT PETITION (C) NO. 3 OF 2020 IN RE: CONGIZANCE FOR EXTENSION OF LIMITATION (2022) 3 SCC 117 . 3. The directions of the Apex Court are as hereunder:- “(i) The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. (ii) Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. (iii) In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. (iv) It is further clarified that the period from 15.03.2020 till 28.02.2022 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.” 4. From the above the following emerge:- (i) Exclusion of period from 15.03.2020 to 28.02.2022 for the purpose of limitation. (ii) In cases where the period of limitation commenced between 15.03.2020 and 28.02.2022, a further period of 90 days from 01.03.2022 is available as the period of limitation. (If longer statutory period is prescribed, the same shall be available). (iii) In cases where the period of limitation expired during the excluded period (between 15.03.2020 and 28.02.2022), a further limitation period of 90 days from 01.03.2022. (If longer statutory period is prescribed, the same shall be available). (iii) In cases where the period of limitation expired during the excluded period (between 15.03.2020 and 28.02.2022), a further limitation period of 90 days from 01.03.2022. (If longer statutory period is prescribed, the same shall be available). (iv) In cases where the period of limitation commenced prior to 15.03.2020 but had not expired by that date, time will run up to 15.03.2020. The balance period as per the applicable statute would be available from 01.3.2022. If the balance period is less than 90 days, still a period of 90 days shall be available. If the balance period is more than 90 days then the longer period will be available. (v) In cases where the period of limitation had expired prior to 15.03.2020, only the benefit of exclusion under clause (i) is available. (vi) The period from 15.03.2020 to 28.02.2022 having been excluded from the purview of limitation, there will be no running of time during the said period. Therefore, if certified copy of an order/judgment delivered between 15.03.2020 and 28.02.2022 is applied for during the said period or after 01.03.2022, delay is to be calculated as if the order/judgment was passed on 01.03.2022. (vii) Within the extended period of limitation, necessarily, the exclusion provided for under Section 12 of the Limitation Act will be available. 5. Now coming to the appeal with filing defect No.2297/2022, the award was passed on 06.12.2021 i.e. during the period of exclusion. Therefore, limitation will commence to run only from 01.03.2022. Copy application was submitted only on 07.05.2022. Therefore, the period from 01.03.2022 till 07.05.2022 has to be deducted from the 90 days limitation period which runs from 01.03.2022. The stamp papers were called for on 16.05.2022 and were produced within time. The date notified for appearance to receive copy was on 20.05.2022 and the copy was delivered on 26.05.2022. The appeal is filed on 14.07.2022. Therefore, the period from 26.05.2022 till 14.07.2022 also needs to be deducted from the period of limitation. Thus, the number of days lost is, 117 days. When the limitation period of 90 days is deducted therefrom, the delay in filing the appeal is only 27 days. The computation made by the appellant is correct. 6. In the appeal with filing defect No.2300/2022, the award was passed on 01.02.2020. Thus, the number of days lost is, 117 days. When the limitation period of 90 days is deducted therefrom, the delay in filing the appeal is only 27 days. The computation made by the appellant is correct. 6. In the appeal with filing defect No.2300/2022, the award was passed on 01.02.2020. The certified copy of the award was applied for only on 04.02.2022. Exclusion of limitation commenced only from 15.03.2020. Therefore, the appellant lost the period from 01.02.2020 till 15.03.2020 from out of the period of limitation which he was entitled for. However, since the period of limitation did not expire before 04.02.2022, which is the date of filing of the copy application, the appellant will get a further limitation period of 90 days from 01.03.2022. Stamp papers were called for on 29.04.2022 and the same were produced in time. The date notified for appearance to receive copy was on 07.05.2022 and the copy was delivered on 06.05.2022. Since the certified copy was applied for during the excluded period and the period of limitation is extended by 90 days from 01.03.2022, the appellant did not lose any time till 06.05.2022, the date of delivery of the copy. The appeal was filed on 17.07.2022. Time will start running from 06.05.2022 till date of filing of appeal on 17.07.2022. Therefore, from out of the 90 days available from 01.03.2022, he has lost only 73 days. The appeal filed on 17.07.2022 is thus within time and hence there is no delay. The computation made by the appellant is correct. Registry is directed to number the appeals. ORDER : M.A.C.A. Nos. 2993 & 2996 of 2022 Decided On : 05-01-2023 Read order dated 15.09.2022. 2. Taking note of the judgment of the Apex Court in Sagufa Ahamed & others v. Upper Assam Polywood Products Pvt. Ltd. & Others (2021) 2 SCC 317 , the matter was suo motu posted before the bench. 3. In Sagufa Ahamed (supra), the Apex Court, referring to its judgment in Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 held that the said judgment only extended the period of limitation stipulated prescribed by the general or special law. 4. 3. In Sagufa Ahamed (supra), the Apex Court, referring to its judgment in Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 held that the said judgment only extended the period of limitation stipulated prescribed by the general or special law. 4. However, in Prakash Corporates v. Dee Vee Projects Ltd. (2022) 5 SCC 112 , the Apex Court detailing on the various orders passed in Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250 till its final disposal on 23.09.2021 clarified that, the Apex Court had, while finally disposing of the M.A, taking note of the hardships and difficulties faced by litigants consequent on the pandemic, provided for exclusion of the period from 15.03.2020 till 02.10.2021 while computing the period of limitation. It is necessary to refer to paragraphs 27.6, 27.7 and 28 of the judgment in Prakash Corporates which read thus, “27.6 Reverting to the orders passed by this Court, noticeable it is that on 27.04.2021, this Court restored the order dated 23.03.2020 and it was directed, in continuation of the order dated 08.03.2021, that the periods 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. Ultimately, the said MA No.665 of 2021 was disposed of on 23.09.2021 with this Court issuing directions similar to those contained in the order dated 08.03.2021 but while providing that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. 27.7. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clear that the anxiety of this Court had been to obviate the hardships likely to be suffered by the litigants during the onslaughts of this pandemic. Hence, the legal effect and coverage of the orders passed by this Court in SMWP No.3 of 2020 cannot be unnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions. 28. Hence, the legal effect and coverage of the orders passed by this Court in SMWP No.3 of 2020 cannot be unnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions. 28. As regards the operation and effect of the orders passed by this Court in SMWP No.3 of 2020, noticeable it is that even though in the initial order dated 23.03.2020, this Court provided that the period of limitation in all the proceedings, irrespective of that prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15.03.2020 but, while concluding the matter on 23.09.2021, this Court specifically provided for exclusion of the period from 15.03.2020 till 2.10.2021. A look at the scheme of the Limitation Act, 1963 makes it clear that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months' notice for a suit against the Government). The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed.” 5. At paragraph 28, the Apex Court specifically noted the distinction under the Limitation Act, 1963 with regard to extension of prescribed period of limitation and exclusion of time in computing limitation. It was clarified that, though the effect of the initial orders in the SM case was only to extend the period of limitation, the final order provided for exclusion of the period from 15.03.2020 till 02.10.2021 while computing limitation. It was clarified that, though the effect of the initial orders in the SM case was only to extend the period of limitation, the final order provided for exclusion of the period from 15.03.2020 till 02.10.2021 while computing limitation. In this regard it is relevant to refer to paragraph 33.2 of the judgment in Prakash Corporates which reads thus, “33.2 One of the significant facts to be noticed is that the said decision in Sagufa Ahmed case was rendered by a three-Judge Bench of this Court much before the aforesaid final orders dated 08.03.2021 and 27.09.2021 (sic 27.04.2021) in SMWP No.3 of 2020 by another three-Judge Bench of this Court. In those final orders, this Court not only provided for the extension of period of limitation but also made it clear that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.032020 to 02.10.2021 shall stand excluded. Such proposition of exclusion, which occurred in the later orders, was not before this Court in Sagufa Ahmed, which was decided much earlier i.e. on 18.09.2020.” 6. In the light of the above, I conclude that no modification with the order of this Court dated 15.09.2022 is necessary.