The BLANKET EXTENSION OF LIMITATION
PERIOD during pandemic: NOT PERMISSIBLE
The law relating to limitation is quite
significant, as no claim can be pursued till perpetuity and finite period for
raising claim is thus stipulated. The Limitation Act 1963 governs that. In the
backdrop of Covid and owing to lockdown, people are genuinely prevented from
raising their plea in courts of law and therefore the hon’ble Supreme Court
under the extra-ordinary power as conferred on it under Article 141 of
Constitution of India in Suo Motu
case No. 3/2020 has extended period of limitation from time to time so as to
prevent the claims of parties being stale in the backdrop of pandemic. The
hon’ble Supreme Court has finally in the Suo
Motu Case No.3/2021 was pleased to extend the period of limitation w.e.f
15.03.2020 till 02.10.2021.However, the ensuing discussion is whether the
extension is blanket or could it be circumscribed in facts and circumstances of
the case.
The Hon’ble Delhi High Court have rendered a judgment
on 17th December, 2021 in CS (Comm)
119/2020 and in a matter captioned as HT
MEDIA LIMITED & ANR versus BRAINLINK INTERNATIONAL, INC. & ANR (CORAM: HON'BLE MS. JUSTICE ASHA MENON)
It is to be noted that the suit related to
infringement of Trade Mark. The order in the captioned matter was passed while
disposing the application filed by the defendants under Order VIII Rule 1 read
with Section 151 of Code of Civil Procedure for seeking condonation of delay in
filing the written statement. The defendant had claimed that were not served
with the summons of the suit and merely intimation was received to the effect that
a suit is filed and that order dated 28th April, 2020 is passed by the court,
through email, in compliance of requirements of Order XXXIX Rule 3 CPC.
The defendants had thus entered appearance and
filed reply to the interim application filed by the plaintiffs. The defendants
believed that they were not required to file a written statement of defence
until and unless served with the summons of the suit. In any case, as the global
pandemic had adversely affected the world, hence extension in limitation period
was perceived as permissible. Moreover, the defendants had believed that Supreme
Court of India was pleased to take cognizance of the situation and extended the
limitation and therefore, the delay in filing written statement was liable to
be condoned and the same could be taken on record.
The plea of defendants was that the 30 days’
time-line provided for filing of the written statement is extendable for a period of 120 days and that
is to be reckoned from the date when the summons were served. As no summons
were never served on the defendants and further as defendants had appeared in
response to the information furnished in compliance of Order XXXIX Rule 3 CPC,
thus, in actual fact, there is no delay in filing of the written statement. The
judgment rendered by Supreme Court in Cognizance For Extension of Limitation,
In re. (2020) 9 SCC 468 [Misc. Appl. No.665/2021 in SMW(C) 3/2020] was relied
upon to contend that the limitation period has been extended for all purposes. Further,
reliance was placed on the judgment of the Division Bench of Delhi High court
in Rohit Sharma v. A.M. Market Place
Pvt. Ltd., 2021 SCC OnLine Del 3092.
The plaintiff had opposed the plea, as the delay
was nearly 441 days, after the ad-interim order was passed and no cogent
reasons were given to explain the delay. Pertinently, the defendants have
appeared in the court, through their counsel, on several dates and still, the
defendants opted not to file written statement. The Commercial suit in any case
by virtue of its very nature mandates expedition. The application for seeking
condonation was thus liable to be dismissed and right of the defendants to file
the written statement should be closed. The plaintiff’s plea was that this was
not a case in which the defendants had been prevented from participating in the
proceedings. The suit, which itself had been filed while the pandemic was
raging and the first order having been passed on 28th April, 2020, when the
video conferencing hearings had commenced, and when the interim directions were
issued, indicated that urgent matters were being heard by this court. The
defendants had in fact appeared before the court on 29th May, 2020, through
counsel, when it was informed to the court that two applications were being
listed on 2nd June, 2020. One of these applications was filed by the defendants
under Order XXXIX Rule 4 CPC. Therefore, the defendants knew about the pendency
of the suit and their claim that they expected to be served with the summons
before filing their written statement, is untenable. Still further, a list of
other applications filed by the defendants has also been given in the written
submissions as also in the reply, to point out that the defendants were not
prevented by the pandemic from taking various steps or participating in
different proceedings before different fora. It was thus pleaded that the
benefit of the Supreme Court decision in Cognizance For Extension of Limitation
(supra), could not enure to the defendants.
It was also contended that the application for
seeking condonation of delay in filing written statement was filed only after
the plaintiffs had filed their application under Order XIII-A CPC, seeking
summary judgment in their favour, which was listed before the court on 6th
July, 2021.
CASE LAWS:
1. Love Chauhan v. Ajay Kumar
Kathuria, 2021 SCC OnLine Del 4861,
2. Shagufa Ahmed v. Upper Assam
Polywood Products Private Limited and Others. (2021) 2 SCC 317
3. Bharat
Kalra v. Raj Kishan Chabra, 2021 SCC OnLine Del 3976
The aforesaid dicta buttress the plea that the
benefit of extension of time pursuant to the orders of the Supreme Court on 23rd
March, 2020, was not automatically available to all.
Reliance has been placed on the judgment in
1. Flight Center Travels Pvt. Ltd.
v. Flight Centre Limited, 2013 SCC OnLine Del 331,
2. Siraj Ahmad Siddiqui v. Prem Nath
Kapoor, (1993) 4 SCC 406,
3. Nath Agrawal v. Nath, 1981 SCC
OnLine All 445
4. Sunil
Poddar v. Union Bank of India, (2008) 2 SCC 326, The aforesaid judgments
relates to the fact that once the defendants participated in the proceedings,
the defendants waived the right to be served with the summons.
In
the light of the above judgments, It is held in the matter by hon’ble Delhi
High Court that defendants were not impacted due to the conditions that
prevailed due to the pandemic and nothing precluded the defendants from
interacting with their counsel and filing appropriate applications and replies
before this court and therefore the judgment rendered by hon’ble Supreme Court in Cognizance For Extension of Limitation
(supra) would not be applicable to the facts of the present case. It was also
noted that that the parties were referred to mediation on 22nd February, 2021 and the report that mediation
efforts had failed, received on 30th June, 2021. Subsequently, when
plaintiffs on 6th July, 2021, applied for summary judgment that the
defendants had woken up from slumber and opted to file a written statement and
application for condonation of delay was filed for placing written statement on
record.
Another
aspect that the hn’ble court had also weighed in the context was that whereas on
28th April, 2020, summons were directed to be issued and process fee
was also directed to be filed, and as per record the one-time process fee was
envisaged to be deposited by the plaintiffs, however, the Registry does not
seem to have issued any summons, though intimation was sent to the defendants
giving the particulars of the case and the interim directions of this Court.
The question is whether this lapse, if it be one, would enure to the benefit of the defendants? The High Court has answered
that no such benefit shall enure to the benefit of defendants. The high court
having regard to Supreme Court judgment in Sunil
Poddar (supra) has held accordingly. Though, the judgment rendered In Sunil
Poddar (Supra) was in the context of an application under Section 22(2)(g) of
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read
with Order IX Rule 13 CPC, still, the observations made therein would be significant
here. In that case, it was held that the question is not whether the defendants
were actually served with the summons in accordance with the procedure laid
down and in the manner prescribed under Order V CPC, but whether the defendants
had sufficient notice of the date of hearing and had sufficient time to appear
and answer the claim of the plaintiffs. To reproduce paragraphs No. 23 and 24
of the said judgment shall be worthwhile:
“23. It is, therefore, clear that the legal
position under the amended Code is not whether the defendant was actually
served with the summons in accordance with the procedure laid down and in the
manner prescribed in Order 5 of the Code, but whether (i) he had notice of the
date of hearing of the suit; and (ii) whether he had sufficient time to appear
and answer the claim of the plaintiff. Once these two conditions are satisfied,
an ex parte decree cannot be set aside even if it is established that there was
irregularity in service of summons. If the court is convinced that the
defendant had otherwise knowledge of the proceedings and he could have appeared
and answered the plaintiff's claim, he cannot put forward a ground of
non-service of summons for setting aside ex parte decree passed against him by
invoking Rule 13 of Order 9 of the Code. Since the said provision applies to
the Debts Recovery Tribunals and the Appellate Tribunals under the Act in view
of Section 22(2)(g) of the Act, both the Tribunals were right in observing that
the ground raised by the appellants could not be upheld. It is not even
contended by the appellants that though they had knowledge of the proceedings
before DRT, they had no sufficient time to appear and answer the claim of the plaintiff
Bank and on that ground, ex parte order deserves to be set aside”.
24.
“In our opinion, the Tribunals were also right in commenting on the conduct of
the appellant-defendants that they were appearing before the civil court
through an advocate, had filed written statement as also applications
requesting the court to treat and try certain issues as preliminary issues. All
those facts were material facts”.
14. A coordinate Bench of Delhi
High Court in Flight Center (supra)
has held that when the defendant had knowledge of the case and had entered
appearance through counsel, a technical process of service of summons need not
be insisted upon. It was observed as below: -
“It
was, therefore, incumbent upon the appellants to disclose such facts in an application
under Section 22(2)(g) of the Act when they requested DRT to set aside ex parte
order passed against them. The appellants deliberately and intentionally
concealed those facts. There was no whisper in the said application indicating
that before the civil court they were present and were also represented by an Advocate.
An impression was sought to be created by the appellant-defendants as if for
the first time they came to know in December 2000 that an ex parte order had
been passed against them and immediately thereafter they had approached DRT.
The Debts Recovery Tribunal, Jabalpur, therefore, in our opinion was right in
dismissing the said application.”
The objective of the process of
issuance of summons is to obtain the presence of the defendant for final
opportunity to be given to him to rebut the claim against him. Thus, if he
appears at the initial stage in a sense there is waiver of the right to have
summons served on him. This position has been explained in the case of Sri Nath Agrawal case (supra) and to
that extent the aforesaid has been upheld by the Supreme Court in Siraj Ahmad Siddiqui case (supra).”
The high court thus held that there is no reason
to take a different view in the present case. The defendants in the present
matter were fully aware of the present case and had participated on various
dates from 29th May, 2020, including in mediation, and opted not to
file their written statement. Had they been not represented by a counsel, a
probable view could have been taken that the procedure was unknown to the
defendants. However, they have been assisted by counsel throughout this being a
commercial suit, entailing strict timelines. The plea of the defendants that
since the summons had not been served to them, the time had not begun to run,
cannot be accepted. Thus, on both grounds, there is no merit found in the application
seeking condonation of delay in filing written statement. The delay was thus not
condoned and filing of the written statement was declined.
REMARK
The pandemic, no doubt has caused colossal loss of
time and resources and the Suo Motu Writ
Petition No. 3 of 2020 passed hon’ble Supreme Court has been apt and with a
view to securing ends of justice, so that litigants are not non- suited owing
to the reasons beyond the control of litigants. However, the moot point is that
when a litigant is aware about the development in a case and had not only the
wherewithal, but, opted to appear in the said case and defended the case,
through counsel with all the might in their command, whether, the leverage
accorded to by the hon’ble Supreme Court could be claimed by such a litigant as
a matter of right for seeking delay for inordinately longer period? The
technicalities of formally receiving a summon should therefore be a sine qua non in such a situation or not?
It is held not to be so, by the hon’ble high court. The legal process is to aid
and not to avail technical brownie point. As it is, the delay is often caused
and it is alleged that the judicial process has inherent impediment ingrained
in it, thereby, causing delay. In the context, the expedition should be the
norm and efforts to that effect deserved to be lauded, of course, while
ensuring that the litigants does not suffer in bona fide case, for want of
legal aid. In the present case, the parties were duly represented and had all
the knowhow and wherewithal and opted selectively to invoke the nuances of law
and procedure, therefore, taking advantage of a system by harping on the leverage
available only to bona fide litigants and no inbuilt claim of extension of
period of limitation could be claimed by a party. If a party, notwithstanding
the above, seeks to avail of such condonation in delay, in placing written
statement on record, the same could only be dealt with on its own merit as is
held by Delhi High Court in the present matter. That said, though, final words, probably, in the context is yet to
come.
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
