TaxTMI 
TaxTMI 
2022 (2) TMI 1268
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....e of service of summons. 2.1. The Defendant-Appellant has questioned the orders so passed by the Trial Court and by the High Court on various grounds, including those with reference to the orders passed by this Court in Suo Motu Writ Petition (Civil) No. 3 of 2020[3], for extension of the period of limitation prescribed under the general law of limitation or under any special law, in view of the challenges faced by the country and difficulties of the litigants due to COVID-19 pandemic. Relevant background aspects and proceedings in the suit 3. Looking to the questions arising in this appeal on the Appellant's prayer for an opportunity to file its written statement, dilation on all the factual aspects of the subject suit is not necessary and only a brief reference to the background would suffice. 3.1. It appears from the plaint averments and other submissions that the parties to this litigation and their associated entities were having business dealings, particularly in relation to the public contract works. The present litigation relates to two such contract works: one being the work awarded by the Chhattisgarh Road Development Corporation Limited for "Construction ....
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....t before judgment. 4. After a glance at the background aspects as above, it would be worthwhile to take note of the relevant events pertaining to the proceedings in the suit so filed by the Plaintiff-Respondent, in their feasible chronology. 4.1. In the said suit instituted on 21.12.2020, the Plaintiff-Respondent had also filed an application Under Section 149 Code of Civil Procedure, seeking time for payment of court fees that was granted and the matter was taken up on 01.01.2021. On that date, the Trial Court found that the requisite court fees had been paid and also referred to the submissions made on behalf of the Respondent regarding urgency of matter in view of the said application seeking interim directions Under Order XXXVIII Rule 5 read with Section 151 Code of Civil Procedure. Taking note of the submissions so made, the Court granted another application moved by the Respondent for dispensing with the requirements of pre-institution mediation in terms of Section 12-A of the Act; and issued summons to the Defendant-Appellant for appearance and filing of written statement as also reply to the said interim application. 4.2. The Defendant-Appellant was served with sum....
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....d have proceeded for the slated purpose on 15.04.2021 but, in view of an administrative order dated 05.04.2021 issued by the jurisdictional High Court for curtailed functioning of Courts as also in view of its own administrative order dated 07.04.2021, the Trial Court adjourned the matter to 22.06.2021, for arguments on both the applications. Indisputably, the said administrative orders were issued under the force of circumstances created by the second wave of COVID-19 pandemic, when almost all the institutions suffered set-backs with disruption of their normal functioning due to ailments, lock-downs and containment measures. 4.8. It would be apposite to notice at this juncture that in the ordinary operation of the second proviso to Rule 1(1) of Order V and the proviso to Rule 1 of Order VIII Code of Civil Procedure, as substituted by the Commercial Courts Act, 2015, the Appellant was required to file the written statement within 30 days from the date of service of summons, i.e., within 30 days from 06.01.2021. Further, the Appellant could have been given time to file the written statement by 120th day from the date of service of summons, for reasons to be recorded in writing an....
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....incorporated by Commercial Courts Act says that on expiry of 120 days from date of service of summons, the Defendant shall forfeit the right to file written statement and the Court shall not allow the written statement to be taken on record. Therefore, the Defendant in this case has forfeited his right to submit written statement because more than 120 days have been passed after 06.01.2021 i.e. date of service of summons on the Defendants. Now the Defendants are not permitted to submit written statement in the case file. Now to come up on 09.07.2021 for consideration on application Under Order 38 Rule 5 Code of Civil Procedure and on application Under Section 10 Code of Civil Procedure. Impugned order dated 09.07.2021: the High Court declines to interfere 6. Seeking to question the aforesaid order dated 22.06.2021, the Defendant-Appellant preferred a writ petition Under Article 227 of the Constitution of India before the High Court. 6.1. It was essentially submitted on behalf of the Appellant that on 06.05.2021, the Court was closed due to imposition of lockdown in pandemic control measures; and on 22.06.2021, the application was....
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....erved that the present one was not a case for condonation of delay as the written statement had not been filed at all. Thus, the High Court found no reason to consider interference and proceeded to dismiss the writ petition while observing as under: Taking into consideration the view settled by the Supreme Court and the applicability of the order of Supreme Court in Suo-moto Writ (Civil) No. 03 of 2020, the glaring fact present in this case is this, that the Petitioners have till date not filed any written statement, the prescribed time for filing written statement and the time which can be extended by the Court both have expired. The case was fixed for hearing on 22.06.2021 even on that date, the Petitioner was not ready and prepared to file the written statement, therefore, it appears to be a case in which the Petitioner is making a prayer for extension of limitation. No. Court can grant any extension of limitation against the provisions of the enactment under which the case is being considered and heard. Further, it is not a case of condonation of delay as the written statement is still not filed. Hence, I am of this view that the learned Commercial Court h....
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....so submit that the Trial Court and the High Court have failed to consider the adverse circumstances faced by the Appellant where, apart from the entire district of Raipur having been declared a containment zone and restriction/lockdown having been imposed in the month of April, 2021, the fact of the matter had been that the partners of the Appellant firm as also their family members suffered from COVID-19 and they were either in quarantine or were attending on other family emergencies. Moreover, the Appellant's counsel and his mother were in quarantine and, in fact, the counsel's mother passed away due to health complications. According to the learned Counsel, in these trying and unfortunate times, when the rigour of limitation period had been under eclipse pursuant to the orders of this Court, the Trial Court and the High Court ought not to have closed the right to file the written statement. 9.4. The learned Counsel has also referred to the fact that as per its own administrative order dated 05.04.2021, the High Court of Chhattisgarh had provided for restricted functioning of the Courts, where only the matters of urgent nature were being taken up; and the suit in quest....
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....p to the Appellant because no indefeasible right accrues to claim in the discretionary extendable period to be determined by the Court. The learned Counsel has emphasised on the submissions that in the orders passed in SMWP No. 3 of 2020, the extension of period of limitation commencing from 23.03.2020 to 02.10.2021 was for institution of suits or applications; and even when Section 12-A of the Act was brought within the purview of the extension of limitation period, there was no direction that the period to file the written statement before the Commercial Court would also be extended automatically, despite the Defendant appearing and participating in the proceedings. According to the learned Counsel, the Defendant cannot take blanket immunity by not filing the written statement and then, seeking cover of the orders passed in SMWP No. 3 of 2020. 10.3. With reference to the decision of this Court in the case of S. Kasi v. State Criminal Appeal No. 452 of 2020 decided on 19.06.2020, it has been argued on behalf of the Respondent that a 3-Judge Bench of this Court has specifically ruled that the said order dated 23.03.2020 in SMWP No. 3 of 2020 is not applicable to all the applicat....
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.... the relevant applicable provisions of Code of Civil Procedure are those as amended by the Schedule to the Commercial Courts Act, 2015 read with Section 16 thereof. Section 12-A of the Act has also come under reference in the orders passed in SMWP No. 3 of 2020. Thus, we may usefully reproduce Section 12-A and Section 16 of the Act as under: 12-A. Pre-Institution Mediation and Settlement. - (1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the Plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by Rules made by the Central Government. (2) The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987 (39 of 1987), for the purposes of pre-institution mediation. 16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes. - (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, s....
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....not allow the written statement to be taken on record. (2) A Defendant to whom a summons has been issued Under Sub-rule (1) may appear: (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. (3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court. Order VIII Rule 1 1. Written statement.-The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: *Provided that where the Defendant fails to file the written statement within the said period of thirty days, he shall be allow....
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....itigations and more particularly, in relation to the period of limitation when it would be well-nigh impossible for them to file the proceedings within the prescribed period of limitation, if the same was expiring during the period of such health emergencies and enforcement of the measures of containment. Having regard to the circumstances, this Court exercised its plenary powers Under Article 142 of the Constitution of India and passed an order on 23.03.2020 in the said SMWP No. 3 of 2020 that reads as under: This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). 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....
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....es the time limit for completing the process of compulsory pre-litigation mediation and directed that the said time limit would also stand extended from time to time and for 45 days after lifting of lockdown. The relevant parts of the order dated 10.07.2020 could also be usefully extracted as under: I.A. No. 49221/2020 -Section 29A of the Arbitration and Conciliation Act, 1996 Taken on Board. In Suo Moto Writ Petition (C) No. 3/2020, by our order dated 23.03.2020 and 06.05.2020, we ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 shall be extended w.e.f. 15.03.2020 till further orders. Learned Attorney General has sought a minor modification in the aforesaid orders. Section 29A of the Arbitration and Conciliation Act, 1996 does not prescribe a period of limitation but fixes a time to do certain acts, i.e. making an arbitral award within a prescribed time. We, accordingly, direct that the aforesaid orders shall also apply for extension of time limit for passing arbitral award Under Section 29A of the said Act. Similarly, Sect....
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....r by virtual mode. We are of the opinion that the order dated 23.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end. 2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issue the following directions: 1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021. 2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. 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. ....
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....Further clarification was also made for exclusion of the period from 14.03.2021 in regard to the other period(s) prescribed under different laws. In this order dated 27.04.2021, this Court took note of the orders earlier passed in the matter and thereafter, observed and directed as under: Supreme Court Advocate on Record Association (SCAORA) has now through this Interlocutory Application highlighted the daily surge in COVID cases in Delhi and how difficult it has become for the Advocates-on-Record and the litigants to institute cases in Supreme Court and other courts in Delhi. Consequently, restoration of the order dated 23rd March, 2020 has been prayed for. We have heard Mr. Shivaji M. Jadhav, President SCAORA in support of the prayer made in this application. Learned Attorney General and Learned Solicitor General have also given their valuable suggestions. We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extrao....
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....puting the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 03.10.2021. II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 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....
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....(Labour Court) etc.] - w.e.f. 06.04.2021: 1. Filing of fresh cases shall continue. 2. In Durg, Raipur & Bilaspur, 02 (two) Courts of Higher Judicial Service (HJS) Level and 04 (four) Courts of Lower Judicial Service (LJS) Level are allowed to function on rotational basis. 3. In station having 03 (three) or less than 03 (three) Courts all the Courts shall function. In other station 50% of HJS Courts and 50% of LJS Courts are allowed to function on rotational basis. 4. These Courts shall function only during the first half of the working hours meaning thereby that the Court shall function only from 11.00 am to 2.00 pm, excluding bail and remand matters, for which Court shall function during full working hours. 5. The following type of cases shall be taken up for hearing during the above restricted functioning of the Court: 1) Remand matters 2) Bail matters 3) Supardnama matters 4) Appeal & Revision (Both Civil & Criminal) 5) Matters relating to under trial prisoners 6) Cases pending for more than 05 (five) years (Both Civil & Criminal) 7) Motor Accident Claim Cases 8) Matters relating to payment of amount deposited in respect of M....
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....p; By order of Hon'ble the High Court Sd/- 05.04.21 (Sanjay Kumar Jaiswal) I/c. Registrar General Bilaspur. (emphasis supplied) Time limit for filing written statement and consequences of default 16. For dealing with the rival submissions, in the first place, we need to take into account the time limits for filing written statement in a suit governed by the provisions of the Commercial Courts Act, 2015. As noticed, by virtue of Section 16 thereof, the Commercial Court is to follow the provisions of Code of Civil Procedure as amended by the Act in the trial of a suit in respect to a Commercial dispute of a Specified Value. The relevant provisions contained in Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 Code of Civil Procedure, have been reproduced hereinabove; and it is manifest that the said provisions not only envisage strict timelines for filing of written statement but even provide for consequences of default, while restricting the powers of the Court to extend the time for filing written statement beyond the p....
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.... the time beyond this period of 120 days. This Court also made it clear that these mandatory provisions cannot be circumvented even by recourse to inherent powers Under Section 151 Code of Civil Procedure while observing as under: 16. ...Clearly, the clear, definite and mandatory provisions of Order V read with Order VIII Rule 1 and Rule 10 cannot be circumvented by recourse to the inherent power Under Section 151 to do the opposite of what is stated therein." 17. If the aforesaid provisions and explained principles are literally and plainly applied to the facts of the present case, the 120th day from the date of service of summons came to an end with 06.05.2021 and the Defendant, who had earlier been granted time for filing its written statement on payment of costs, forfeited such right with the end of 120th day, i.e., 06.05.2021. However, it is required to be kept in view that the provisions aforesaid and their interpretation in SCG Contracts (supra) operate in normal and non-extraordinary circumstances with the usual functioning of Courts. It is also noteworthy that the above referred provisions of Code of Civil Procedure are not the only provis....
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.... of the litigants and their lawyers; and this led to the suo motu order dated 23.03.2020 in SMWP No. 3 of 2020. 19.1. In the consciously worded order dated 23.03.2020, this Court, while taking note of the difficulties likely to be faced by the litigants in filing their petitions/applications/suits/appeals/proceedings within the period of limitation, ordered that the period of limitation in all such proceedings, irrespective of the limitation prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15.03.2020 until further orders. This order was passed in exercise of plenary powers of this Court Under Article 142 of the Constitution of India, which are complementary to other powers specifically conferred by various statutes. Even if the above referred provisions of Code of Civil Procedure had not been stated in specific terms, the general mandate of the order dated 23.03.2020 was to extend the period of limitation provided in any law for the time being in force, irrespective whether the same was condonable or not, w.e.f. 15.03.2020 and until further orders. Noticeably, on 06.05.2020, when special periods of limitation under different enactm....
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....We shall elaborate on this aspect in the next segment of discussion but, have indicated the same at this juncture to highlight the fact that even before passing of the order dated 27.04.2021 by this Court in SMWP No. 3 of 2020, the Trial Court dealing with the subject suit was already under containment measures; and could not have functioned normally. 19.5. 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. 19.6. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clea....
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.... In other words, the orders passed by this Court on 23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and 23.09.2021 in SMWP No. 3 of 2020 leave nothing to doubt that special and extraordinary measures were provided by this Court for advancing the cause of justice in the wake of challenges thrown by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the Defendant. 20.3. Therefore, in view of the orders passed by this Court in SMWP No. 3 of 2020, we have no hesitation in holding that the time limit for filing the written statement by the Appellant in the subject suit did not come to an end on 06.05.2021. 21. It is also noteworthy that even before the scope of the orders passed in SMWP No. 3 of 2020 came to ....
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....Appellant for the reason that the charge-sheet had not been filed within the time permitted by Section 167(2) Code of Criminal Procedure. The High Court took the view that the said order dated 23.03.2020 in SMWP No. 3 of 2020 would eclipse all the provisions prescribing the period of limitation, including that prescribed Under Section 167(2) Code of Criminal Procedure. This Court referred to the reasons for passing the orders in the said suo motu petition and the difficulties sought to be taken care of; and found that an investigating officer was not prevented from such difficulties as were faced by the lawyers and litigants; and the investigating officer could have submitted the charge-sheet before the Magistrate (Incharge). This Court observed and held as under: 17: The limitation for filing petitions/applications/suits/appeals/all other proceedings was extended to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/applications/suits/appeals/all other proceedings would become time barred they being not able to physically come to file such ....
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....rough their counsel on 19.12.2019. However, the Appellants filed the statutory appeal before the National Company Law Appellate Tribunal only on 20.07.2020 with an application for condonation of delay. The Appellate Tribunal dismissed the application for condonation of delay on the ground that it had no power to condone the delay beyond a period of 45 days. Consequently, the appeal was also dismissed. In that case, it was indisputable that even while counting from 19.12.2019, the period of 45 days expired on 02.02.2020 and another period of 45 days, for which the Appellate Tribunal could have condoned the delay, also expired on 18.03.2020. To overcome this difficulty, the Appellants relied upon the aforesaid order dated 23.03.2020. This Court observed that the Appellants were not entitled to take refuge under the above order in SMWP No. 3 of 2020 because what was extended was only the period of limitation and not the period up to which delay could be condoned in exercise of discretion conferred by the statute. This Court said thus: 17. ... What was extended by the above order of this Court was only "the period of limitation" and not the period up to which dela....
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....pearing in the Court and, therefore, cannot take advantage of the orders passed in SMWP No. 3 of 2020. It is true that the Appellant had indeed caused appearance in the Court in response to the summons and sought time for filing its written statement but at the same time, it is also undeniable that at the relevant point of time, the second wave of pandemic was simmering and then, it engulfed the country with rather unexpected intensity and ferocity. Then, on 27.04.2021, this Court restored the operation of the order dated 23.03.2020 in SMWP No. 3 of 2020. Putting all these factors together, we are unable to accept the submissions made on behalf of the Respondent that because of earlier appearance or prayer for adjournment, the Defendant-Appellant would not be entitled to the relaxation available under the extraordinary orders passed by this Court. Implication and effect of the administrative order issued by the High Court 24. Apart from the above, in our view, the impugned orders cannot be approved for yet another major factor, being that of the implication and effect of the administrative order issued by the jurisdictional High Court. 25. As noticed, on 15.04.2021, the Tr....
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....wfully be transacted. A day on which a Law-Court is not held. A day that is not counted for some purpose. For example, Saturday and Sunday are not counted as days of the working week. xxx xxx xxx An abbreviation of the phrase "dies non juridicus", non-judicial days-days during which the Courts do not transact any business-as Sunday or the legal holidays. (Havens v. Stiles, 56 LRA 736). It is frequently said that Sunday is "die non juridicus", but this means only that process cannot ordinarily issue or be executed or returned, and Courts do not usually sit, on that day. It does not mean that no judicial action be had on that day. On the contrary, it is laid down in books of authority that warrants for treason, felony and breach of the peace may be issued and executed on that day, (State v. Ricketts, 74 N.C. 187, 193) 25.2. The concept of limitation not coming to an end on a day when the Court is closed, or is deemed to be closed, is precisely contained in Section 4 of the Limitation Act, 1963 that reads as under: 4. Expiry of prescribed period when court is closed. - Wher....
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....ch suggests that during such non-regular-business days of the Trial Court, and rather bleak days for the humanity, the written statement ought to have been filed, could only be disapproved as being impractical and rather preposterous. Another error of procedure by the Trial Court 26. Apart from the above, yet another significant feature is that on the very first day of appearance, i.e., on 18.01.2021, the Appellant moved an application Under Section 10 read with Section 151 Code of Civil Procedure for stay of the suit proceedings on the ground that proceedings between the parties relating to the subject matter of the suit were pending before the NCLT. The Respondent had earlier moved an application seeking directions of attachment before judgment in terms of Order XXXVIII Code of Civil Procedure. Both the applications as moved by the Appellant as also by the Respondent remained pending and, on 15.03.2021, the Trial Court adjourned the matter to 15.04.2021 for arguments on both these applications. On 15.04.2021, no business could be transacted and the matter was adjourned to 22.06.2021, again for arguments on these applications. Even when the matter was taken up on 22.06.2021 ....
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....o more. Conclusion 27. For what has been discussed hereinabove, we are unable to approve the order dated 22.06.2021 as passed by the Trial Court and the order dated 09.07.2021 as passed by the High Court. In our view, the written statement already prepared and notarised by the Defendant-Appellant deserves to be taken on record and the Trial Court deserves to be directed to proceed with the matter in accordance with law thereafter; and for that matter, to deal with the pending applications without further delay. 28. Accordingly, this appeal is allowed; the impugned orders dated 22.06.2021 as passed by the Commercial Court (District Level), Nava Raipur, Chhattisgarh in Civil Suit No. 01-B of 2021 as also the order dated 09.07.2021 as passed by the High Court of Chhattisgarh in WP No. 312 of 2021 are set aside; the written statement notarised by the Defendant-Appellant on 07.07.2021 is ordered to be taken on record. After taking the written statement on record, the Trial Court shall proceed with the suit in accordance with law; and for that matter, shall deal with the pending applications before taking any other steps in the suit. [1] Hereinafter also referred to....