Extension of Limitation period – Not an Absolute Leeway

May 31, 2023
Internal Committee

By Nihit Nagpal and Anuj Jhawar

The Hon’ble Supreme Court, keeping in view the difficulties faced by litigants due to restrictions on movement and in an attempt to reduce the transmission of the deadly virus, from time to time had extended the period of limitation vide several orders. The said extension were to be applicable on the limitation provided for under general or special laws on the filing of all appeals, suits, petitions, applications and all other quasi-judicial proceedings.

The chronology of limitation extension in case titled as In Re: Cognizance for Extension of Limitation[1] is as follows:

S No. Order Date Extension of Limitation Period
1. March 23, 2020 Limitation period in all proceedings, whether condonable or not, extended from March 15, 2020 till further orders
2. March 08, 2021 Extension of limitation recalled and period from March 15, 2020 till March 14, 2021 excluded from computing the limitation period.
3. April 27, 2021 Extension of limitation restored and limitation extended from March 14, 2021 till further orders
4. September 23, 2021 Extension of limitation was recalled and the period from March 15, 2020 till October 02, 2021 to be excluded from computing the limitation period.
5. January 10, 2022 Extension of limitation restored and period from March 15, 2020 till February 28, 2022 excluded from computing the limitation period. All limitation periods would now start running from March 1, 2022 and in cases where the limitation period has expired between March 15, 2020 to February 28, 2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from March 1, 2022 i.e. up to May 29, 2022.

However, before passing the Order dated January 10, 2022 by the Hon’ble Supreme Court of India, a Ld. Single Judge of Delhi High Court vide order dated September 17, 2021 in HT Media Limited & Anr. v. Brainlink International, Inc. and Anr.,[2] held that the extension of limitation will not be applicable in circumstances where the Defendant was not prevented from filing the written statement.

The Defendants herein, by way of an application dated July 13, 2021, prayed for the condonation of delay in filing the written statement and the same be taken on record. They claimed to have not been served summons in the present suit, having merely received an intimation about the suit on being served, via email, the copy of order dated April 28, 2020 under Order XXXIX Rule 3 directing them to make compliance therein. They did enter an appearance in the matter and were of the bona fide believe that they were not required to file the written statement unless served upon the summons. Further, it was submitted that during the said time, the pandemic has affected the world, which the Supreme Court took cognizance of and extended limitation vide several orders.

The counsel for applicants stressed upon the 30 day timeline – extendable up to 120 days – to file the written statement from the date of serving of summons. Considering the applicant-defendant were not served upon the summons, the learned counsel claimed that there has been no delay in filing of the written statement. Further, he placed reliance of the Supreme Court’s order dated September 23, 2020 which extended the limitation period for all purposes.

The plaintiff opposing the application submitted that the delay, about 441 days, is substantiated by no cogent reason by the defendant, having them being present, through their counsel, on eight occasions on which the matter was listed to be heard, after the ad-interim was passed on April 28, 2020. In the reply filed by the plaintiff, it has been pointed out that this was not a case in which the applicant-defendants had been prevented from participating in the proceedings.

They further contended that the suit itself was filed during the pandemic, wherein urgent matters were being heard through video conferencing. The applicant-defendant were present before the court on May 29, 2020 when it was announce that there are two applications listed for the next date, one of which being filed on May 27, 2020 by the applicant-defendant themselves. In the light that the applicant-defendant were aware about the pendency of the suit and made appearances regularly, the plaintiff prayed that the application be dismissed and the right of applicant-defendant’s right to file written statement be closed.

The Hon’ble High Court observed that the conditions that prevailed during the pandemic did not actually impact the Ddefendants to prevent them from interacting with their counsel and filing appropriate applications and replies before this Court.[3] The Court placed its reliance on Sunil Poddar v. v. Union Bank of India[4] and Flight Centre Travels Pvt. Ltd. v. Flight Centre Limited[5] to rule that the when the defendant had the knowledge of the case and had entered appearance though counsel, a technical process of service of summons need not to be insisted upon.

The Court further held that had they been not represented by a counsel, a probable view could have been taken that the procedure was unknown to the defendants.[6] Thus, the plea of the learned counsel for the applicant-defendants that since the summons had not been served to them, the time had not begun to run, cannot be accepted.

The said order was challenged before the Hon’ble Supreme Court, and vide order dated March 14, 2022, in Brainlink International, Inc. & Anr. v. HT Media Limited & Anr.,[7] it was upheld the same as under:

“In the facts and circumstances of the case and keeping in mind the conduct on the part of the petitioners and when even during the pandemic the petitioners participated in the proceedings, which has been reflected in para 3 of the impugned order, we are in complete agreement with the view taken by the High Court.”

Thus, the orders passed by the Hon’ble Supreme Court with respect to the extension of limitation period due to the pandemic should not be construed as a blanket leeway while calculating the limitation. The same shall be subject to be scrutinized on the basis of the conduct of the parties and the opportunities available to them so as to act as legally required out of them.

[1] Suo Motu Writ Petition (C) No. 3 of 2020; (2022) 3 SCC 117
[2] CS(COMM) 119/2020 (Delhi High Court) : 2021 SCC OnLine Del 5398
[3] Para 10
[4] (2008) 2 SCC 326
[5] 2013 SCC OnLine Del 331
[6] Para 15.
[7] SLA (C) No. 3579 of 2022 (Supreme Court)

CGPDTM’s notice in furtherance of Supreme Court’s order recalling extension of limitation period

Supreme Court- Extension of limitation period recalled

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