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National Lockdown: ICABA Urges CJI To Extend Various Timelines Under Arbitrarion Act, IBC, NI Act, Etc. [Read Letter]

30 March 2020 8:41 AM GMT
National Lockdown: ICABA Urges CJI To Extend Various Timelines Under Arbitrarion Act, IBC, NI Act, Etc. [Read Letter]
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In view of the standstill brought with the imposition of a national lockdown, the Indian Commercial and Arbitration Bar Association has requested the Supreme Court to extend the timelines related to disposal of cases, as prescribed in various statues.

The letter written by a Delhi based lawyer, Advocate Ankur Mahindro, points out that even though, by way of a general order in Re: Cognizance for Extension of Limitation, Suo Moto WP (C) No. 3/2020, the Supreme Court had extended the limitation period for filing a case before any court/Tribunal in India, the same does not relax various timelines as stipulated under the Arbitration & Conciliation Act, the IBC, the NI Act, etc.

"It is most respectfully submitted that Your Lordships, by way of the aforementioned Order dated 23.03.2020 has only extended the period of limitation in respect of filings before this Hon'ble Court and the Courts and Tribunals subordinate to it. However, the said order does not encompass and deal with situations where certain proceedings abate/terminate on account of non-adherence to timelines prescribed by certain statute(s). ICABA seeks to draw the attention of Your Lordships to few such statutes," the letter states.

Listing down such provisions, Mahindro has asserted that if the timelines are not extended, the parties concerned will suffer adversely for no fault of theirs. He states,

"parties need to adhere to certain timelines, failing which serious consequences would follow as prescribed under the aforesaid statutes, which in the present circumstances is not because of any fault of the parties. In fact, under certain circumstances, non-adherence to these timelines would in fact bring about an euthanasia in respect of pending/prospective litigations."

These provisions include,

Section 29A of the Arbitration & Conciliation Act, 1996 which obligates the Arbitral Tribunal to pass the final award within a period of 12 months from the date the Arbitral Tribunal enters upon the reference.

This period may be extended by the Tribunal, with mutual consent of the parties, for a period of 6 months. If, however, the Tribunal is unable to pass the final award within any of the aforementioned periods, a party may approach the Court with an application for extension of time and additional time may be granted to the Tribunal for the passing of the final award as deemed prudent by the Court, in the absence of which the mandate of the Arbitral Tribunal would terminate.

Section 12(3) of the Insolvency and Bankruptcy Code, 2016 stipulates that the Insolvency Resolution Process shall be completed within a period of 330 days from the Insolvency Commencement Date., failing which the Adjudicating Authority will pass an order of liquidation of the Corporate Debtor, under Section 33 of the Code.

Section 138 of the Negotiable Instruments Act, 1881 prescribes a 30 days' notice period, before initiation of a criminal case for dishonor of cheque.

Section 131 of the Trade Marks Act, 1999 provides that an application for extension of time has to be made before the Registrar for extending the time for doing any act, whether the time so specified has expired or not, and subject to sufficient cause being shown, the said application may be allowed.

In view thereof, Mahindro has urged the court to declare and pass appropriate directions in exercise of its powers under Article 142 of the Constitution, qua the timelines mentioned above, so that the parties are not forced to approach the Court/Authority/Tribunal(s) for seeking such extensions.

"It is most humbly submitted that irreparable loss shall be caused to the litigants at large in the Country in case directions in the nature sought are not passed by Your Lordship. It is these times of incertitude and exigencies where Advocates and Litigants alike, look up to this Hon'ble Court and Your Lordships to develop its own jurisprudence according to its own light, suited to the conditions of the country and exercising the plenitude of the jurisdiction under Article 142 given to us by our Constitution," the letter states.

Preferably, he has suggested, that all such proceedings be extended automatically, wef from March 15, 2020.

Inter alia, he has also sought that physical service of other notices, for instance, eviction notices, notices for recovery of money, cease and desist notices, civil defamation notices, etc., be dispensed with and instead, service through electronic email/WhatsApp be permitted.

For the same, he proposes, "At the time of coming to the concerned Court/Authority/Tribunal, an additional Affidavit can be filed by the litigant stating that the electronic mail address/WhatsApp number of the other party on which notice was sent by him is correct to the best of his knowledge and screenshots of the WhatsApp number may be attached with such affidavit."

Read Letter

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