Law of Limitation in the time of COVID-19: Interpreting the Supreme Court's March 23 order

Following the World Health Organization (WHO) directive labelling the outbreak of Coronavirus (COVID-19) as a global pandemic, the Government of India, with an intent to “flatten the curve”, has taken several measures, including the 21-day lockdown.

Apart from having other adverse effects, the lockdown has also severely affected the functioning of courts across the country. Various high courts and tribunals across the country and even the Supreme Court have issued circulars restricting the functioning of courts to only ‘extremely urgent matters’, ultimately resulting in the effective closure of courts.

While extremely urgent matters are being taken up through the mode of video conferencing, the courts have also taken into consideration the fate of “routine matters” that would go unattended during the lockdown period.

In view of the extraordinary circumstances, the courts/tribunals have taken suo motu cognizance of issues that are likely to be faced because of the lockdown, including the fate of matters that were yet to be filed and the matters where deadlines for filings would fall within the lockdown period.

The issue of limitation was first addressed by the High Court of Delhi in the office order dated March 23, 2020 wherein the following directions were passed:

“Lockdown/Suspension of work of Courts shall be treated as “closure” within the meaning of the Explanation appended to Section 4 of the Limitation Act, 1963 and other enabling provisions of the Act and other Statutes, as may be applied to court proceedings. Thus, the limitation for any court proceeding shall not run w.e.f. 23.03.2020 to 04.04.2020 subject to further orders.”

Keeping in view the difficulties faced by lawyers and litigants across the country in filing petitions/applications/appeals etc due to the lockdown, the Supreme Court, on the very same day, in exercise of its powers under Article 142 read with Article 141 of the Constitution of India, passed an order in Suo motu Writ Petition (Civil) No. 3 of 2020 on the issue of law of limitation by observing as follows:-

“To obviate such difficulties and to ensure that the 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 general law or Special Laws whether condonable or not shall stand extended w.e.f. 15^th March, 2020 till further orders to be passed by this Court in present proceedings.”

Effect of the Supreme Court's March 23 order

Firstly, the office order issued by the Delhi High Court would now stand superseded by the order of the Supreme Court so far as the question of “extension of limitation” is concerned.

Further, a primary yet crucial issue that arises from the order is the interpretation of “…it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under general law or Special Laws whether condonable or not shall stand extended w.e.f. 15^th March, 2020 till further orders…”.

On a plain reading of the Supreme Court order, more particularly the phrase “shall stand extended”, two possible interpretations arise:

First Interpretation

The prescribed period of limitation shall be extended w.e.f. 15.03.2020 till further orders are passed by the Supreme Court once the lockdown is lifted. In case the prescribed period of limitation to file any petition/application/appeal had expired during the period mentioned in the Supreme Court order, the same would be required to be filed on the day when the court reopens after the “lockdown” has been lifted.

This is on the lines of the principles of Section 4 of the Limitation Act, 1963 (as resorted to in the office order of the Delhi High Court), which is generally invoked by courts to allow filing of petitions/applications/suits/appeals etc., in case the limitation for filing ends when the courts are closed for e.g. weekends, court holidays and court vacations.

However, “courts being closed” under Section 4 of the Limitation Act is very narrow in scope in as much as in order to give the benefit of this section, it takes into account only courts beings closed. It does not take into account a situation of a lockdown of the whole country due to a pandemic when everything including courts are closed and people are prohibited from moving out of their houses.

A plain reading of the Explanation appended to Section 4 may prima facie indicate that the ‘courts closed due to lockdown’ falls within the scope of Section 4, but the same would not serve any purpose since the litigants would be compelled to rush to courts as soon as the lockdown is lifted (i.e. if the prescribed limitation ends during the lockdown period).

If the Supreme Court passes an order indicating the end date to coincide with the date of lifting of the lockdown, then the litigants would not have had a reasonable opportunity to have access to legal advice and prepare their filings due to the restrictions in place during lockdown, which in turn would cause severe prejudice to them.

Second Interpretation

The limitation shall be extended with effect from March 15, in the sense that the clock of limitation would stop ticking then, till further orders. In other words, the period between March 15 till further orders are passed by the Supreme Court would be excluded while computing the period of limitation and the clock of limitation would resume only from the day as notified by Supreme Court.

Accordingly, the period of lockdown would be completely excluded while computing the period of limitation, thereby compensating a litigant for the time lost due to the lockdown.

For instance, if the period of limitation for a litigant to file an intra-court appeal (30 days as per Article 117 of the Limitation Act) commences on March 12, then the clock of limitation would stop ticking on March 15 and would resume only when the lockdown is lifted. Assuming the lockdown is lifted on April, then the litigant would still have 27 days to file his appeal, thereby avoiding any prejudice to his rights.

This, in our view, is the correct way to interpret the order dated March 23, as any other interpretation would not only lead to chaos, but would also be prejudicial to the litigants' rights and would defeat the purpose of the order. It would also give rise to filing of substantial number of condonation of delay applications before the courts and tribunals.

Moreover, it is trite to state that the present lockdown cannot be treated as a routine court vacation, which is why the Supreme Court has made a conscious decision of invoking its inherent powers under Article 142 r/w Article 141 of the Constitution of India and not Section 4 of the Limitation Act, 1963.

It was well aware of the fact that such “extension of limitation” is not stipulated within the scope of Section 4 or any other provision of the Limitation Act, 1963. The Supreme Court in the order dated March 23 has sought to go beyond the benefit of Section 4 of the Limitation Act, and in effect, “suspended” the period of limitation for all filings and accordingly used the word “extended”.

Thus, during the current unprecedented situation, where not only the courts are closed, but most of the facilities necessary for preparation of filing which are generally available during routine court vacations, like access to legal counsels, offices, case material, printing and photocopy facilities etc. have been effectively disabled due to the lockdown, it is only logical that the order dated March 23 be interpreted in accordance with the second interpretation.

The aforesaid is also substantiated by the opening observations in the second para of the Supreme Court’s order dated March 23 (reproduced above).

While stating the intent behind passing the order, the Supreme Court has stated,

“To obviate such difficulties and to ensure lawyers/ litigants do not have to come physically to file such proceedings…”.

Thus, the Court is not only conscious of the difficulty in filing of the proceedings (which is a scenario envisaged by Section 4 of the Limitation Act) but has also passed the order keeping in mind the difficulties being faced by the litigants/lawyers in drafting and preparing filings.

Before concluding, it may be pertinent to mention that the Indian Commercial and Arbitration Bar Association (ICABA) has made a representation to the Supreme Court seeking expansion of its order to timelines prescribed for completion of certain proceedings/formalities under statutes like the Arbitration and Conciliation Act, 1996; the Insolvency and Bankruptcy Code, 2016; the Trade Marks Act, 1999 and the Negotiable Instruments Act, 1881.

It is likely that the Supreme Court in the near future would issue further orders which would more clearly spell out the intent and scope of the order dated March 23.

However, as of now, going by the intent, purpose and background in which the order dated March 23 has been passed, the second Interpretation seems the most logical, literal and natural.

Milanka Chaudhury is a Partner, Abhinav Agnihotri is an Associate Partner, and Chaitra Bhat is an Associate at Link Legal India Law Services.