Extension Of Limitation Prescribed Under General/Special Law Due To COVID 19 Pandemic – An Analysis

Dr. M.S Krishna Kumar

15 March 2021 6:43 AM GMT

  • Extension Of Limitation Prescribed Under General/Special Law Due To COVID 19 Pandemic – An Analysis

    Various Statutes prescribe a time limit for filing of statutory appeal to the concerned appellate authority. Take for instance statute like Central Excise, Service Tax (Chapter V of Finance Act 1994), FTDR Act 1992, Electricity Act, Consumer Protection Act and so on. These statute while prescribing the time limit for filing appeal also provides for another period within which delay...

    Various Statutes prescribe a time limit for filing of statutory appeal to the concerned appellate authority. Take for instance statute like Central Excise, Service Tax (Chapter V of Finance Act 1994), FTDR Act 1992, Electricity Act, Consumer Protection Act and so on. These statute while prescribing the time limit for filing appeal also provides for another period within which delay in filing appeal can be condoned. In the statues abovementioned the delay in filing is condonable only for a prescribed period, which mostly relate to First appeals. Let us refer such extension of time prescribed under statute as "condonable period". Like for instance Sec. 107 of CGST Act, provides for condonable delay of one month, Sec.15 of FTDR Act 1992 also provides for condonable period of thirty days. On the other hand fiscal statutes above as well as other Statutes also provide a period for filing appeal before 2nd appellate authority along with a provision that the delay in filing appeal may be condoned by the appellate forum without any prescribed time limit on 'sufficient cause' being shown. In other words in such category of appeals the delay in presentation is condonable without any cap on delay, while in the First category the appellate authorities have no power to condone the same beyond the prescribed period. The first category of appeals which restricts the delay in presentation of appeal within a prescribed period is the subject matter of this Article viewed from the recent COVID 19 pandemic and the resultant hardships caused to litigants, lawyers, including appellate authorities and judicial fora.

    2.1 Taking suo moto cognizance of the difficulties faced across the country due to lock down , social distancing, movement of general public, Hon'ble Supreme Court in Suo Motu Writ Petition Civil No. 3 of 2020 in RE: Cognizance for Extension of Limitation (SMW (C) No. 3/2020) passed the following interim order dated 23.03.2020 "To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such 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. The Apex Court in the above order observed that it is a binding order within the meaning of Art. 141 on all courts/Tribunal and authorities

    2.2 Subsequently the Hon'ble Supreme Court in its order dated 06.05.2020 (SMW (C) No.3/2020) following the earlier order dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3/2020, ordered that all periods of limitation prescribed under Arbitration and Conciliation Act, 1996 and under Sec. 138 of Negotiable Instrument Act, 1881 (NI Act 1881) shall be extended with effect from 15.3.2020 till further orders passed in the current petitions. In the above order tt was further clarified that if the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which 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 lifting the lockdown.

    2.3 Later on the Hon'ble Supreme Court in the case of S.S Group Pvt Ltd Vs Aaditiya Garg & another in C.A 4085/2020 dated 17.12.2020 observed as follows " The National Commission thus declined to take the written statement on record in view of the Constitution Bench decision of this Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd.,(2020) 5 SCC 757, wherein it has been held that the Consumer Court has no power to extend the time for filing the response to the complaint beyond 45 days……It is true that the decision of the Constitution Bench of this Court in New India Assurance Co. Ltd. (supra) clearly provides that no written statement is to be allowed to be filed beyond the period of 45 days as per Section 38 of the Consumer Protection Act, 2019. However, in this context, it is noteworthy to refer to the order dated 23.03.2020 passed by this Court in SMW(C) No.3 of 2020, titled as "In Re: Cognizance for Extension of Limitation…....In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the order dated 23.03.2020 passed by this Court in SMW(C) No.3 of 2020 was

    continuing. In view of the aforesaid, in our opinion, 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 order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/ applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed." It is pertinent to note that the Hon'ble Apex Court in judgment dated 17.12.2020 observed as follows "..The above order is still operative and by subsequent orders, the scope has been enlarged so that the said order applies in other proceedings also …"

    3.1 Earlier in a catena of judgments the Hon'ble Supreme Court emphasized the point that when a statute prescribed a particular time limit, the same cannot be condoned by Courts under any circumstances. For instance in the case of Singh Enterprises Vs CCE (2008 (221) E.L.T. 163 (S.C.) Apex Court held as follows "In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. " Following the above judgment in the case of Amchong Tea Estate Vs UOI 2010 (257) E.L.T. 3 (S.C.) held that "In this connection we may rely on a decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur & Ors., reported in [(2008) 3 SCC 70], wherein this Court has held that the proviso to sub-section (1) of Section 35 makes the position crystal clear that the Appellate Authority has no power to condone the delay beyond the period of 30 days and that the language used makes the position clear that the Legislature intended to entertain the appeal by condoning the delay only upto the 30 days and not 60 days. "

    3.2 Further Hon'ble Supreme Court in the case of M/s. Suryachakra Power Corporation Limited v. Electricity Department (2016 (16) SCC 152) held as follows "Since, the Supreme Court cannot condone the delay beyond 60 days under Section 125 of the Electricity Act, 2003, and in the facts of the present case, since the principles of Section 14 of the Limitation Act, 1963 are not attracted, Interlocutory Application No.1 of 2015 for condonation of delay is dismissed. Consequently, the appeal is also dismissed on the ground of delay. " In yet another case reported in CC Vs Hongo India Pvt Ltd (2009 (236) E.L.T. 417 (S.C.) Apex Court held as follows " It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. In the light of

    the above discussion, we hold that the High Court has no power to condone the delay in filing the "reference application" filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation."

    4. Due to COVID 19 pandemic many of the litigants could not file the statutory appeal within the condonable period due to lockdown of business, staff working from home, inability to travel-interstate, meeting & engaging a Counsel etc. Such litigants were guided by Hon'ble Apex Court interim order dated 23.03.2020 any delay in presenting such appeals is condonable without any limit till today as no final orders have been pronounced. This extension of time limit until further orders, is strengthened in the light of the observations in subsequent order dated 17.12.2020. First Appeals are being filed with condonation of delay petition (delay beyond statutory prescribed limit) in the light of Apex Courts orders above, and if delay ins not condoned for some reason or other , litigants would be put to undue hardship. This is due to the wordings used in order dated 06.05.2020 which says that the period is extended for 15 days after the lockdown is lifted, which may lead to different interpretation. If the appeals are filed say during this year 2021, there is also likelihood of lower authorities taking a view that 'lock down' having been lifted (restoration of normal life) they cannot take shelter under COVID 19 pandemic, though the Apex Court vide its order dated 17.12.2020 emphasized that extension of time continues, which means even today if an appeal is filed, and is beyond the condonable period the same has to be admitted by the authority concerned.

    5. Recently the Apex Court heard the SMW (C ) No.3/2020 on 3rd March 2021. when the matter was heard the Attorney General informed the Apex Court that the order on limitation be recalled in view of lifting of lockdown. The Apex Court informed the Attorney General that it proposes to lift the ban on running of limitation by proposing to give a grace period of 'ninety days' from lifting of the extension of limitation.

    6. The matter in SMW (C) No.3/2020 was again heard on 4th March 2021 and after hearing the arguments the Apex Court reserved orders. The Apex Court by its order dated 08.03.2021 while disposing of the Suo Moto W.P held as follows (a) for computing the period of limitation for any suit, application, appeal or proceedings, the period from 15.03.2020 to 14.03.2021 shall stand excluded. (However the balance period remaining as on 15.03.2020 shall become available w.e.f 15.03.2021) (b) in cases where limitation expired during 15.03.2020 to 14.03.2021 (notwithstanding balance of limitation period) all persons shall have limitation of 90 days from 15.03.2021 (c) period from 15.03.2020 to 14.03.2021 shall stand excluded for computing the period of limitation under Arbitration & Conciliation Act, 1996, Commercial Courts Act, 2015, Negotiable Instruments Act, 1881 and other laws which prescribe period of limitation for instituting proceedings. Hope the Government on its part issue instructions, and the trade bodies inform all concerned including affected parties, by giving wide publicity, to take note of the final orders issued and adhere by the same

    Views are Personal

    The Author is a Lawyer at Chennai

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