Supreme Court of India (March 2020)

Extension of the limitation period in all proceeding, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not

Suo Motu Writ Petition (Civil) No(s).3/2020

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Supreme Court passed an order extending the 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. 15th March 2020 till further order/s to be passed by the Supreme Court itself.

Court invoked Article 142 read with Article 141 of the Constitution while passing this order. The same order was communicated to all the High Courts and Subordinate Courts/Tribunal within the respective jurisdictions of all such High Courts.

NCLT (Issued a Notice) (March)

All litigants were issued a notice that the extension of limitation period granted by the Supreme Court stating that it will be applicable to the cases falling within the NCLT’s jurisdiction. The objective behind such order of Supreme Court was to reduce the physical filing in the Court and Tribunal across the country during the pandemic.

Supreme Court of India (May 2020)

Supreme Court extended the limitation period for statutory provisions under Section 138 of the Negotiable Instruments Act and the Arbitration and Conciliation Act

Suo Motu Writ Petition (Civil) No(s).3/2020

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Supreme Court extended the limitation period for statutory provisions under Section 138 of the Negotiable Instruments Act and the Arbitration and Conciliation Act with effect from March 15 until further orders.

The order was passed in an application seeking extension of limitation under Section 29A of the Arbitration and Conciliation Act and Section 138 of the Negotiable Instruments Act. The same shall be binding on all courts/tribunal.

Supreme Court of India (June 2020)

Extending limitation and the lockdown restrictions of the government will not affect the right of an accused to seek default bail under Section 167(2) of the Code of Criminal Procedure.

S. Kasi v. State through the inspector of police samaynallur police station, Cr (App) No. 452 of 2020

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The Supreme Court held that its suo moto order extending limitation and the lockdown restrictions of the government will not affect the right of an accused to seek default bail under Section 167(2) of the Code of Criminal Procedure.

This ruling set aside the judgement of a single bench of Madras High Court in S Kasi v. State, which held that the time to file charge sheet under Section 167(2) CrPC will also get extended on account of the SC order extending limitation and the lockdown restrictions.

The Court held that the suo moto order extending limitation cannot be interpreted as extending the limitation period under Section 167(2) CrPC. The Court apprehended that the if the view of the HC single bench was accepted, it could lead to police taking extra liberties even with respect to production of accused after arrest.

The apex court also observed that the single judge had “breached judicial discipline” with its judgment, as it was contrary to the judgment of another judgment of a single bench, which had held that the right to default bail was not affected by the order extending limitation.

Kerala High Court (July 2020)

Extension of the limitation does not affect the right of an accused to default bail under Section 167(2) of CrPC.

Md. Ali v. State or Kerala and Ors., Bail App No. 2856 of 2020

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The Kerala High Court has held that the Supreme Court order dated March 23, 2020, whereby the period of limitation for filing cases was extended in view of the COVID-19 lockdown, does not affect the right of an accused to default bail under Section 167(2) of CrPC.

High Court has clarified that a reading of the general order passed by the Supreme Court to extend the period of limitation for filing cases would show that those directions were issued to obviate difficulties faced by the litigants, lawyer and they are “applicable to petitions/applications/suits/appeals and other proceedings wherein a period of limitation is prescribed under the general law of Limitation or under Special Laws.”

Supreme Court of India (July 2020)

Extension limitation for filing of cases to Section 29A and 23(4) of the Arbitration and Conciliation Act, 1996 and Section 12A of the Commercial Courts Act, 2015.

Suo Motu Writ Petition (Civil) No(s).3/2020

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The Supreme Court applied its suo moto order extending limitation for filing of cases to Section 29A and 23(4) of the Arbitration and Conciliation Act, 1996 and Section 12A of the Commercial Courts Act, 2015.

The Bench has also allowed the use of electronic means such as e-mail, messenger services (like WhatsApp) for service of notice. The bench has however declined to pass orders extending the validity period of cheque, saying that it was a matter for the Reserve Bank of India to decide by acting under Section 35A of the Banking Regulation Act.

Supreme Court of India (September 2020)

Extension only “the period of limitation” and not the period up to which delay can be condoned

Sagufa Ahmed and Ors. v. Upper Assam Plywood Products Pvt Ltd and Ors., Civil Appeal Nos. 3007-3008 of 2020

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Supreme Court clarified its 23^rd March order and observed that the said order extended 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 Court held that the expression “prescribed period” appearing in Section 4 of the Limitation Act cannot be construed to mean anything other than the period of limitation.

Supreme Court upheld an order passed by the National Company Law Appellate Tribunal dismissing an application for condonation of delay as well as an appeal as time barred.

Bench held that the appellant cannot claim the benefit of the order for enlarging, even the period up to which delay can be condoned.

Supreme Court of India (December 2020)

Extension of the limitation for filing in courts and tribunals is still operative.

M/S. SS Group Pvt. Ltd. v. Aaditya J. Garg & Anr., CA No. 4085 of 2020

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The Supreme Court observed that its order of 23rd March 2020 extending limitation for filing in courts and tribunals is still operative.

It set aside an order passed by National Consumer Disputes Redressal Commission which declined to take a written statement on the ground that it has no power to extend the time for filing the response to the complaint beyond 45 days.

The court noted that, in this case, the period of 30 days to file written statement expired on 12.08.2020 and extended period of 15 days expired on 27.08.2020 and the same was filed only thereafter.

The court observed that it is true that the decision of the Constitution Bench of this Court in New India Assurance Co. Ltd. Hilli Multipurpose Cold Storage clearly provides that no written statement is to be allowed to be filed beyond the period of 45 days as per Section 38 of the Consumer Protection Act, 2019, the bench noted, however, the same shall be superseded with the Supreme Court extension order of March 2020.

Calcutta High Court (January 2021)

Extension of the limitation period would apply only to the first 30 days for filing written statement

Siddha Real Estate Development Private Limited v. Girdhar Fiscal Services Pvt. Ltd., IA No. GA 2 of 2020

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The Calcutta High Court has observed that the order of the Supreme Court dated 23rd March, 2020 extending limitation period would apply only to the first 30 days for filing written statement under Order VIII Rule 1 of the Code of Civil Procedure and not to the additional 90 days which follows the prescribed period for matters covered by the Commercial Courts Act, 2015.

The 90 days additional window following the prescribed period is the additional period and not the prescribed period of limitation under Order VIII Rule 1 CPC.

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Case: Court on its own Motion v. State of NCT of Delhi and Ors.

Introduction:

The writ petition has been taken up by the Delhi HC on its own motion for intervention in regards of the State’s handling of the COVID-19 pandemic. The bench Comprises of Hon’ble The Chief Justice Hon’ble and Mr. Justice Prateek Jalan.

Facts:

Learned Amicus Curiae has, in his report, pointed out to this court that the mobile application namely “Delhi Corona Mobile Application” by the Delhi Govt. is not being updated regularly. That there was a mismatch of data and facts provided by the Govt. and Pvt. Hospitals especially regarding the availability of beds and ventilators. It is also submitted that some of the hospitals run by the Central Government/Government of NCT of Delhi is not updating the data. It is further submitted that helpline numbers as provided by Govt. of NCT of Delhi, are not properly working.

It is further submitted by the learned Amicus Curiae that real-time updation of data should be done by the hospitals or data should at least be updated every 8 hours. He also submitted that there should be no denial in testing and asymptomatic patients should also be tested for Covid-19 immediately.

Learned Standing Counsel appearing for the Government of NCT of Delhi filed an affidavit in which it pointed out various steps initiated by the Govt. Of NCT of Delhi:

• A Centralized toll-free helpline number 1031 has been developed by merging all the helplines, which provide seven types of services.

• That the Standard Operating Procedure has also been evolved for receiving calls and effectively responding to the callers.

• That a special helpline number dedicated only to the Corona positive patients/cases have recently been initiated.

• Four Grievance Officers have been appointed for redressal of complaints regarding availability of the ambulance, hospital, beds and ventilators, etc.

Holding:

The court having heard the Amicus Curiae and the counsels for respondents/intervener and held that there was a need of a real-time update of the data by all hospitals including the Delhi Government-run hospitals, the Central Government-run hospitals and private hospitals. The court hence directed the Govt. of NCT of Delhi as well as Central Govt. that they shall take all necessary steps for ensuring real-time update of the data, without too much of a time lag, so that the information being received by the public is current. The court also directed the Central Govt. that testing will be carried out by the central govt. as well as the state government prioritizing persons approaching with a doctor’s recommendation. The court listed the matter on 25/06/2020.

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Covid-19 has had a drastic impact on the legal sector of every country. In the wake of this pandemic, it becomes highly essential to modify the laws to suit the changes brought in by Covid-19. Huge number of pendency of cases, loss of livelihood, frustration/non-performance of contracts, cancellation of projects, unprecedented unemployment etc are few of the consequences of this pandemic. This article provides an analysis of the impact on few sectors of the law.

Role of technology:

Due to the outbreak of Covid-19, On 6^th April 2020, a notification was passed by the Supreme Court setting out guidelines for the conduct of court proceedings virtually on important/urgent matters and subsequently various states passed necessary notifications abiding by the virtual court proceedings as directed by the Supreme Court. This situation has forced the Indian Courts to gradually make a paradigm shift from the traditional courts to the virtual mode of court proceedings. The guidelines passed by the Supreme Court includes awareness of access to technology, technology upgradation to facilitate the proceedings, participation of common people along with the parties involved. With the modifications made in the technology due consideration has also been given to protect the digital platforms from hacking, cybercrimes etc.

As the courts are only hearing important/urgent matters, limitation period in all the cases have been extended until any further notice by the Supreme Court. Due to the present circumstances, it will be hard for the litigation sector to recover from the quantity of delayed cases in the future as India already has a huge backlog of pending cases.

Mergers & Acquisitions:

The Covid-19 crisis has affected M&A transactions deeply. They are seeing a tough time in honouring agreements or putting them on hold. Cross- border transactions have also been severely affected. In this context, it is likely to review the material adverse effect (MAE) clauses in respect of transactions relating to mergers and acquisitions. The scope of MAE clauses is different according to the different type of transactions. MAE/MAC clauses typically state that any event, occurrence, fact, condition, change, development that had reasonable material adverse effect either individually or in  aggregate, on the target company’s position affecting it financially, its assets, liabilities, intellectual property etc. Also, there is an inability to continue or honour present business agreements due to the material effect. Taking this as a defence many transactions will be put on hold by the party facilitating the merger or acquisition. Steps will be taken by the appropriate authorities governing the acquisition or merger by taking up cases through virtual means, getting approval from the board through remote e-voting etc. Considering that parties will not be able to fulfil all the formalities certain closing down requirements have to be relaxed. Therefore, it is important that necessary updates are maintained by the parties and the appropriate authorities of the impact of Covid-19 on their noted transactions and the market conditions respectively.

Competition Law:

In the wake of Covid-19 pandemic it becomes essential to analyse the market in terms of the provisions of Competition law. To analyse the impact of Covid-19 it is important to consider the concept of coordinated behaviour between the suppliers/competitors. The competitors may collaborate for legitimate reasons to fulfil the demand of the people. As lockdown was imposed for a period of 60 days and all the sectors were closed except outlets for essential commodities. It was seen that many few geographical areas were over-stocked while on the contrast few geographical areas faced shortage of supplies. However, in the interest of uninterrupted supply and access to consumers, coordinated behaviour though illegal per se under Competition law is essential during such emergency. Various countries have relaxed provisions under Competition law in order to facilitate proper distribution and meet demand effectively. The Australian Competition and Consumer Commission (ACCC) has granted temporary leave/permission to retailers to share data, stock/supplies in order to meet demand. The Federal Trade Commission and the U.S. Department of Justice Antitrust Division have issued guidelines facilitating collaborations in order to ensure health and safety of its citizens. The Indian Government has so far not passed any exemptions with respect to the application of Competition law. Such an exemption for an interim period will allow the competitors to collaborate for the purpose of meeting demand in respect of essential commodities, medical supplies, R&D to develop vaccines etc. It is also pertinent to note that such relaxations can lead to exploitation in the form of dominating practices, cartelisation etc. A great initiative that was taken up the Indian Government was by covering masks, sanitisers under the ambit of essential commodities and putting a cap on the maximum price. Therefore, strict set of guidelines, thresholds are to be set in order to regulate the market dynamics effectively.

Indian Contract & the Force Majeure clause:

The principle w.r.t Force Majeure clause is that the party who has an obligation to perform the contract is given exemption due to the occurrence of any event it is no longer under the control of the party and relives the party from performing it. It has an obligation to prove that it took all the reasonable steps to honour the commitment of the contract. Due to the impact of Covid-19 globally, commercial contracts through out the world has disrupted. Therefore, parties are taking the defence of FMC clause. The Ministry of Finance, Government of India clarified with respect to ‘Manual for Procurement of Goods, 2017’, and stated that due to the disruption of supply chain because of the spread of Covid-19 such a scenario will be covered under FMC clause and the doctrine of Force Majeure can be invoked in the bonafide interest. Similarly, the Ministry of New & Renewable Energy with respect to ‘solar project developers’ declared that contractual obligations disrupted due to Covid-19 will be covered under Force Majeure clause in order to provide financial security. 

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