Full Text
HIGH COURT OF DELHI
Date of Decision: 23.09.2024
7791/2022 HARYANA VIDYUT PRASARAN NIGAM LTD .....Petitioner
Through: Mr. Lokesh Sinhal, Sr. AAG
Through: Mr. Kaustubh Sinha, Ms. Surbhi Mehta, Mr. Abhishek Sinha and
Mr. Bishwabandhu Kumar, OMP (ENF.) (COMM.) 148/2022
NATIONAL CONTRACTING COMPANY LIMITED .....Decree Holder
Through: Mr. Kaustubh Sinha, Ms. Surbhi Mehta, Mr. Abhishek Sinha and
Mr. Bishwabandhu Kumar,
Through: Mr. Lokesh Sinhal, Sr. AAG
HON’BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
JUDGMENT
1. The petitioner has filed this application for condonation of delay of 455 days in filing of the petition.
2. The impugned award is dated 10.12.2019. Although, it is sought to be contended by Mr. Lokesh Sinhal, learned counsel for the petitioner, that the award was in fact received by the petitioner’s counsel only on 16.12.2019, and then transmitted to the petitioner on 17.12.2019, no such contention is discernible from the contents of the application. The date of receipt of the award is not separately mentioned and, to the contrary, it is averred in paragraph 2 of the application that the petition was to be filed within three months from the date of the impugned award, i.e., by 09.03.2020. I, therefore, proceed on the basis that the limitation period is to be computed from 10.12.2019. The three month period, prescribed under Section 34 (3) of the Arbitration and Conciliation Act, 1996 [“the Act”], would then have ended on 10.03.2020.
3. In the application for condonation of delay, the petitioner seeks to take the benefit of the orders of the Supreme Court in Suo Moto Writ Petition (Civil) 3/2020 [In Re: Cognizance for Extension of Limitation], by which the period of limitation was extended during the Covid-19 pandemic. I had noticed this contention in the order dated 14.03.2024, but observed that the judgment of the Supreme Court in Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd.1, holds that the orders in Suo Moto Writ Petition (Civil) 3/2020 do not apply to extension of the condonable period of delay, but only to the extension of the original period of limitation. As the original period of limitation expired prior to 15.03.2020, being the date of applicability of the said orders, this contention was not accepted.
4. In these circumstances, it was submitted on behalf of the petitioner, that a petition under Section 34 of the Act was in fact filed by the petitioner on 11.03.2020 within the period of limitation of three months, as the period from 07.03.2020 to 10.03.2020 were Court holidays on account of Holi. After obtaining a report from the Registry as to the filing on 11.03.2020, the Court has recorded on 28.08.2024 that this submission was incorrect. Mr. Sinhal also accepted, on the basis of the record furnished by the Registry, that the filing made on 11.03.2020 cannot be considered a valid and proper filing, so as to hold that the petitioner had challenged the award within limitation.
5. On this basis, and relying upon the judgment in Sagufa Ahmed[2], I had dictated an order in Court on 11.09.2024, rejecting the application for condonation of delay and, therefore, holding that the petition, under Section 34 of the Act, is barred by limitation.
6. However, before the order was signed, I came across two later judgments of the Supreme Court – Prakash Corporates v. Dee Vee Projects Ltd.[3] and Aditya Khaitan v. IL&FS Financial Services Ltd.4,
Supra Note 1 which have explained the judgment in Sagufa Ahmed[5]. As the said judgments appeared to have a material bearing in the facts of the case, learned counsel were requested to assist the Court on those judgments today.
7. All the three judgments are concerned with statutory provisions other than Section 34 of the Act. The judgment in Sagufa Ahmed[6] deals with the period of limitation provided under Section 421(3) of the Companies Act, 2013, whereas the judgments in Prakash Corporates[7] and Aditya Khaitan[8] and, deal with the time period of filing of written statements under Order VIII Rule I of Code of Civil Procedure, 1908, [“CPC”] as amended by the Commercial Courts Act, 2015. Nevertheless, all three judgments are relevant for the purposes of applying the orders of the Supreme Court in Suo Moto Writ Petition (Civil) 3/2020.
8. In Sagufa Ahmed[9], the Court noticed the order dated 23.03.2020 in Suo Moto Writ Petition (Civil) 3/2020, and held that the prescribed period cannot include the condonable period of delay under the relevant statutory period. The operative portion of the order was as follows:
Ibid Supra Note 2 Supra Note 3 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).
2. 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. 15-3-2020 till further order(s) to be passed by this Court in present proceedings.
3. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all courts/tribunals and authorities.
4. This order may be brought to the notice of all High Courts for being communicated to all subordinate courts/tribunals within their respective jurisdiction.
5. Issue notice to all the Registrars General of the High Courts, returnable in four weeks.”
17. But we do not think that the appellants can take refuge under the above order in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: 2020 SCC OnLine SC 343]. What was extended by the above order 2020 SCC OnLine SC 343] of this Court was only “the period of limitation” and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The above order 2020 SCC OnLine SC 343] passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is vigilantibus et non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.”10 Emphasis supplied.
9. The judgment in Sagufa Ahmed11 was rendered on 18.09.2020. However, further orders came to be passed thereafter in Suo Moto Writ Petition (Civil) 3/2020, which shed some further light on the matter. The order dated 08.03.2021 contained the following directions: “2.1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15-3-2020 till 14-3-2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15-3-2020, if any, shall become available with effect from 15-3-2021.
2.2. In cases where the limitation would have expired during the period between 15-3-2020 till 14-3-2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15-3-2021. In the event the actual balance period of limitation remaining, with effect from 15-3-2021, is greater than 90 days, that longer period shall apply.
2.3. The period from 15-3-2020 till 14-3-2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A 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 court or tribunal can condone delay) and termination of proceedings.
2.4. The Government of India shall amend the guidelines for containment zones, to state. ‘Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time-bound applications, including for legal purposes, and educational and job-related requirements.’”12
10. A further order was passed on 27.04.2021, by which the aforesaid order was continued until further orders. Ultimately, the order dated 08.03.2021 was restored by the final order of the Court dated 10.01.2022. The following operative directions were issued:
11. The significant difference between the orders which have been noticed in Sagufa Ahmed14, and the later orders of the Supreme Court, is that the earlier orders refer only to extension of the prescribed period of limitation, whereas the later orders also specifically provide for exclusion in computing the period including “outer limits (within which the Court or Tribunal can condone delay)”. It is this difference which has led the Court in Prakash Corporates15 and Aditya Khaitan16 to distinguish the reasoning in Sagufa Ahmed17.
12. In Prakash Corporates18, the Court held as follows: “33.2. One of the significant facts to be noticed is that the said decision in Sagufa Ahmed case [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317: (2021) 2 SCC (Civ) 178] was rendered by a three-Judge Bench of this Court much before the aforesaid final orders dated 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452: (2021) 3 SCC (Civ) 40: (2021) 2 SCC (Cri) 615: (2021) 2 SCC (L&S) 50] and 27-9-2021 (sic 27-4- 2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231: 2021 SCC OnLine SC 373] ) in SMWP No. 3 of 2020 by another three-Judge Bench of this Court. In those final orders, this Court not only provided for the extension of period of limitation but also made it clear that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15-3-2020 to 2-10-2021 shall stand excluded. Such proposition of exclusion, which occurred in the later orders, was not before this Court in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317: (2021) 2 SCC (Civ) 178], which was decided much earlier i.e. on 18- 9-2020.
33.3. Moreover, the extendable period in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317: (2021) 2 SCC (Civ) 178] was up to 18-3-2020; and this Court found that lockdown was imposed only on 24-3-2020 and there was no impediment in filing the appeal on or before 18-3-2020. The present one is a case where the prescribed extendable time for filing of the written statement expired on 6-5-2021. It is not the case of the respondent nor is there any observation in the orders impugned that at the relevant point of time, the area in question was not a containment zone or that such a normalcy was available where the appellant could have filed its written statement.
33.4. Having regard to the orders subsequently passed by the three- Judge Bench of this Court in SMWP No. 3 of 2020 (and MA No. 665 of 2021 therein), as also having regard to the fundamental difference of facts and the surrounding factors, the said decision in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317: (2021) 2 SCC (Civ) 178], in our view, is also of no application to the present case.”19
13. Similarly, in Aditya Khaitan20, the Supreme Court has followed the view taken in Prakash Corporates21 and held as follows:
14. Mr. Kaustubh Sinha, learned counsel for the respondents, seeks to distinguish these judgements on the basis of a difference in the language of Section 34(3) of the Act, when compared with Order VIII Rule I of the CPC, as amended by the Commercial Courts Act, 2015. He submits that under Section 34(3) of the Act, the prescribed period of limitation remains three months, as held in Sagufa Ahmed23, whereas the Supreme Court in Prakash Corporates24 and Aditya Khaitan25 has held that the prescribed period of limitation [including the outer limit] under Order VIII Rule I of the CPC is 120 days.
15. I do not find this persuasive, in the face of the specific mandate of the orders in Suo Moto Writ Petition (Civil) 3/2020. The final orders in the said writ petition clearly deal not just with the prescribed period of limitation, but also with the outer limit within which delay can be condoned. The two statutory provisions [Section 34(3) of the Act and Order VIII Rule I of the CPC, as amended by the Commercial Courts Act, 2015] are not structurally identical, but both provide for a period of limitation and a maximum condonable period of delay. It must be borne in mind that the orders of the Court in Suo Moto Writ Petition (Civil) 3/2020 were passed to obviate difficulties arising out of the Covid-19 pandemic. Exercising its jurisdiction under Article 142 of the Constitution in those extraordinary circumstances, the Supreme Court excluded the period provided in the said orders, not just from the period of limitation, but also from the outer limit of condonation of delay. I see no logical basis for holding that such a benefit is inapplicable on a textual reading of Section 34(3) of the Act and the proviso thereto.
16. Mr. Sinha also drew my attention to a later judgment of the Supreme Court in Bhimashankar Sahakari Sakkare Karkhane Niyamita v. Walchandnagar Industries Ltd.26, wherein it was held that the period of limitation under Section 34(3) of the Act was the original period of three months provided in the Act. Although Sagufa Ahmed27 was cited for this purpose, Bhimashankar Sahakari Sakkare Karkhane Niyamita28 does not deal with the effect of the orders in Suo Moto Writ Petition (Civil) 3/2020 at all. It instead deals with expiry of limitation during the period of Court vacation and the applicability of Section 10 of the General Clauses Act,
1897. It is for this purpose that the Court followed the view taken in
Supra Note 26 Sagufa Ahmed29, and held that the benefit of Section 4 of the Limitation Act, 1963, is not available qua the condonable period of delay. The judgment is therefore not applicable to the question under consideration.
17. Having regard to the above authorities, I am of the view that the petitioner is entitled to the benefit of the orders in Suo Moto Writ Petition (Civil) 3/2020, as the maximum condonable period of 30 days admittedly expired on 09.04.2020, which falls within the period excluded by the Court.
18. The petitioner had filed this petition for the first time on 01.06.2021, which came to be registered only on 17.05.2022.
19. Mr. Sinha raises an apprehension that the petitioner’s original filing on 01.06.2021 was also not a proper and valid filing, and submits that the Court is required to examine whether the defects were in fact removed within the period granted by the orders in Suo Moto Writ Petition (Civil) 3/2020.
20. The Registry is directed to place on record the petition and documents of this petition as originally filed, as well as the defects raised from time to time and the date on which the said defects were cured. The said documents will also be made available to learned counsel for the parties, who may address on these aspects on the next date of hearing.
21. List on 12.12.2024.
PRATEEK JALAN, J SEPTEMBER 23, 2024 SS/