Niranjan Majumdar v. Tejpal and Ors.

15. It is rightly contended by learned counsel for the petitioner that as of 02.12.2022, the period of 90 days from 03.10.2021, as afforded by the aforesaid order dated 23.09.2021 had not expired. Further, vide order dated 10.01.2022, the Supreme Court directed that the entire period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasijudicial proceedings. The relevant observations in the said order dated 10.01.2022 are as under:

“I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

II. Consequently, the balance period of limitation remaining as on

III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.”

16. In Prakash Corporates vs. Dee Vee Projects Limited (2022) 5 SCC 112, while construing the operation and effect of the orders passed in Re: Cognizance for Extension of Limitation, it has been specifically held as under: “27.7. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clear that the anxiety of this Court had been to obviate the hardships likely to be suffered by the litigants during the onslaughts of this pandemic. Hence, the legal effect and coverage of the orders passed by this Court in SMWP No. 3 of 2020 cannot be unnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions.

28. As regards the operation and effect of the orders passed by this Court in SMWP No. 3 of 2020, noticeable it is that even though in the initial order dated 23-3-2020, this Court provided that the period of limitation in all the proceedings, irrespective of that prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15-3-2020 but, while concluding the matter on 23-9-2021, this Court specifically provided for exclusion of the period from 15-3-2020 till 2-10-2021. A look at the scheme of the Limitation Act, 1963 makes it clear that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months' notice for a suit against the Government [Vide Section 15 of the Limitation Act, 1963.]. The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed.

28.1. Having regard to the purpose for which this Court had exercised the plenary powers under Article 142 of the Constitution of India and issued necessary orders from time to time in SMWP No. 3 of 2020, we are clearly of the view that the period envisaged finally in the order dated 23-9-2021 is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable. It gets perforce reiterated that the orders in SMWP No. 3 of 2020 were of extraordinary measures in extraordinary circumstances and their operation cannot be curtailed with reference to the ordinary operation of law.

28.2. In other words, the orders passed by this Court on 23-3-2020, 6-5-2020, 10-7-2020, 27-4-2021 and 23-9-2021 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 15-3-2020 to 2-10-2021) could still be filed within 90 days from 3-10-2021 but the period for filing written statement, if expired during that period, has to operate against the defendant.”

17. In para-28 of the aforesaid judgment in Prakash Corporates (supra), the Supreme Court has expressly held that when a particular period is to be excluded in relation to a suit or proceeding, essentially the reason is that such a period is accepted by law to be not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law. In view of the aforesaid observations, the contentions of the learned counsel for respondents that benefit of the aforesaid orders of the Supreme Court should not be afforded to the petitioner herein because the petitioner could not appear before the concerned court on 28.07.2021, 18.18.2021, 15.09.2021, 01.11.2021and 02.12.2021 cannot be countenanced.

18. In Babasahev Raosaheb Kobarne (supra) it has been reiterated by the Supreme Court that the period from 15.03.2020 till 28.02.2022 shall have to be excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. The relevant observation of the Supreme Court in the said case are as under: “In that view of the matter, the period from 15.03.2020 till 28.02.2022 shall have to be excluded for the purposes of limitation as may be prescribed under any General or SPECIAL LAWS in respect of all judicial or quasi-judicial proceedings. The Commercial Courts Act, 2015 being a Special Law, the said order shall also be applicable with respect to the limitation prescribed under the Commercial Courts Act, 2015 also. In view of the above and for the reasons stated above and more particularly when the 120 days period expired in the present case on 09.05.2020 which was during the aforesaid period as prescribed by this Court in the aforesaid order, the High Court ought to have excluded the aforesaid period for the purpose of filing the written statement and ought to have permitted to take the written statement on record. The impugned judgment and order passed by the High Court refusing to condone the delay and take on record the written statement is hereby quashed and set aside. It is directed that the written statement, already filed, be taken on record and the same be considered in accordance with law. It is reported that an interim injunction application is pending before the learned Trial Court since long. We direct the learned Trial Court to finally decide and dispose of the interim injunction application at the earliest and preferably within a period of six weeks from the date of receipt of the present order.”

19. In HT Media Limited (supra), this court, in the context of an application seeking condonation of delay in filing the written statement in a commercial suit, refused to extend the benefit of the orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation (supra), on the ground that the concerned defendants in that case not only appeared before the concerned court during the relevant period, but had also taken proactive steps to file an application under Order 39 Rule 4 CPC in the concerned civil suit. The court thus reached the conclusion that the pandemic conditions did not actually impact the defendants to prevent them from interacting with their counsel and filing an appropriate application and replies in court. In these circumstances, the orders of Supreme Court in Re: Cognizance for Extension of Limitation (supra), was held to be not applicable to the facts of the said case.

20. The aforesaid judgment of this court in HT Media Limited (supra) is completely inapplicable to the facts of the present case. In the present case, it is not that the petitioner was actively participating in the proceedings before the concerned ARC, leading up to the judgment/order dated 02.12.2021; in fact, the petitioner did not appear before the ARC after 27.03.2021. In its application under Order 9 Rule 13 CPC, the petitioner cited the difficulties occasioned during the prevalent pandemic conditions as the justification for nonappearance.

21. Even otherwise, the judgment in HT Media Limited (supra) was pronounced prior to the categorical pronouncement of the Supreme Court in the case of Prakash Corporates (supra), and as held by this court in Hemant Verma vs. Daina Techno Solutions Pvt. Ltd., 2022 SCC OnLine Del 2320, the order passed in HT Media Limited (supra) cannot be accorded preference or precedence over the enunciation of law in Prakash Corporates (supra). The relevant observations of this court in Hemant Verma (supra) are as under:

22. Likewise, the judgment in the case of Sagufa Ahmed (supra), relied upon by the respondents, is also inapplicable to the facts of the present case. In fact, the Supreme Court in Prakash Corporates (supra) specifically distinguished the said judgment of Sagufa Ahmed (supra), as under: “33. So far as the decision of this Court in Sagufa Ahmed is concerned, a few relevant factors related with the said case need to be noticed. In that case, the appellants had moved an application before the Guwahati Bench of the National Company Law Tribunal for winding up of the respondent company. The petition was dismissed on 25-10-2019. The appellants applied for a certified copy of the order dated 25-10-2019 only on 21-11-2019 or 22-11-2019 and received the certified copy of the order through their counsel on 19-12-

2019. However, the appellants filed the statutory appeal before the National Company Law Appellate Tribunal only on 20-7-2020 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 2-2-2020 and another period of 45 days, for which the Appellate Tribunal could have condoned the delay, also expired on 18-3-

2020. To overcome this difficulty, the appellants relied upon the aforesaid order dated 23-3-2020.

33.1. 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:

33.2. One of the significant facts to be noticed is that the said decision in Sagufa Ahmed case was rendered by a three-Judge Bench of this Court much before the aforesaid final orders dated 8-3-2021 and 27-9-2021 (sic 27-4-2021) 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, which was decided much earlier i.e. on 18-9-2020.

33.3. Moreover, the extendable period in Sagufa Ahmed 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, in our view, is also of no application to the present case.”

23. In the aforesaid circumstances, the impugned judgment/order dated 02.12.2021 is clearly unsustainable.

24. Although the maintainability of the application filed by the petitioner before the ARC under Order 9 Rule 13 CPC (which was dismissed on 11.04.2022) is doubtful in view of the judgment of Prithipal Singh (supra), in the present proceedings, the petitioner has assailed the judgment/order dated 02.12.2021 (in addition to the order dated 11.04.2022), whereby the petitioner was proceeded ex-parte and the eviction of the petitioner was also ordered.

25. The eviction order was passed prior to expiry of the time afforded under law to the petitioner to file the leave to defend application. The impugned judgment/order dated 02.12.2021 is, accordingly, unsustainable in law.

26. In the circumstances, the impugned order dated 02.12.2021 is set aside. Eviction Petition No. 50/2020 is restored to its original number and the same is remanded to the ARC. The learned ARC is directed to issue fresh summons to the petitioner in the Form specified in the Third Schedule of the DRC Act as contemplated in section 25B (2) of DRC Act.

27. List the Eviction Petition No. 50/2020 before the ARC on 24.03.2023 for directions. The parties are directed to appear before the ARC on the said date.

28. It is made clear that this court has expressed no opinion on the merits of the eviction petition and as to whether or not leave to defend deserves to be granted in the present case on merits or not.

29. The present petition stands allowed in the aforesaid terms. There shall be no orders as to costs.

SACHIN DATTA, J. MARCH 10, 2023