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Cognizance for extension was only for the period of limitation: Delhi High Court

The cognizance for extension of limitation awarded by the court during the Covid-19 pandemic was only on the ‘period of limitation’ and not the period up to which the delay can be condoned. This was held by Hon’ble Justice Asha Menon in the case of Bharat Kalra Vs. Raj Kishan Chhabra [CM (M) 429/2021] on the 12th of August before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, the respondent is the sole owner of the Property No.24, Surya Niketan, Delhi–110092, admeasuring 331 square yards. Thereafter, desirous of re-constructing the property into a Multi-storey building, he entered into an agreement with the petitioner who presented himself as being engaged in the business of promotion, development and construction of properties. A Collaboration Agreement was executed between the parties on 4th December 2017. In accordance with the said agreement, the cost and expenses of raising the construction were to be borne by the petitioner only. According to the Agreement, the petitioner and respondent were also to get separate portions of the said property after construction. The respondent had alleged that the petitioner failed to carry out the construction even after a lapse of 22 months and also failed to make payment of additional sum as per agreed schedule in the Collaboration Agreement. The respondent also claimed that the petitioner had undertaken to pay the rent of the premises in which the respondent had to shift on account of the demolition of the existing structure, but failed to honor this commitment. In short, these disputes between the parties led to the filing of the instant suit by the respondent seeking injunctions against the petitioner from interfering with the peaceful and lawful possession of the respondent, in respect of the property, with further directions to him to remove all his machinery, labor and other building equipment from the premises and restraining him from creating any third-party interest in the said property. A Decree of Declaration to declare the Collaboration Agreement dated 4th December, 2017 as legally terminated on breach by the petitioner and that the petitioner had no right, title or interest in the said property was also sought. An application was filed by the petitioner/defendant under Order VIII Rule 1 CPC seeking condonation of delay in filing the written statement and reply to application under Order XXXIX Rules 1 & 2 CPC. This was opposed by the respondent/plaintiff. The learned Trial Court vide the impugned order dated 6th April, 2021 dismissed the said application on the ground that there was “no plausible explanation and coherent reason” explaining the delay in filing the written statement and reply to application under Order XXXIX Rules 1 & 2 CPC.

The counsel for the petitioner submits hat even under Order VIII Rule 1 CPC, the Court had the powers to condone the delay in filing the written statement up to a period of 120 days from the date of service of summons. This period of 120 days would have ended on 10th May, 2020 by which time, a complete lockdown had been enforced. Owing to the lockdown and the difficulties being faced by the counsel in filing cases across the country, the Supreme Court vide orders Re: Cognizance for Extension of Limitation, directed that the period of limitation shall stand extended w.e.f. 15th March, 2020 till further orders in that petition. Vide order dated 8th March, 2021, the Suo moto proceedings were disposed of directing that in computing the period of limitation, the period from 15th March, 2020 till 14th March, 2021 shall stand excluded. The counsel for the respondent however said, hat there was no error in the impugned order and the court could not re-appreciate facts in exercise of its powers under Article 227 of the Constitution of India. It was further submitted that the application filed by the petitioner/defendant for condonation of delay in filing the written statement to the suit and reply to the application contained only bald averments that the delay was on account of the counsel or the clerk who had misplaced the file as no affidavit of the clerk or counsel had been filed. Further, there was no explanation as to why, despite the recovery of the files on 14th March, 2020, the written statement was not filed till 20th August, 2020, even though the lockdown had been eased and filing permitted by June, 2020. It was also submitted that the learned Trial Court had rightly concluded that there was no explanation and that there was lack of bona fides in filing the application.

The learned judge heard the submissions of both the parties and read the order by the supreme court which states that, “on 23rd March 2020, it was directed that the period of limitation in filing the petitions/applications/suits/ appeals/all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended w.e.f. 15th March, 2020 till further orders”. The court relied on the judgement in Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317, wherein it was held that, “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 of this Court was only “the period of limitation” and not the periof up to which delay can be condoned in exercise of discretion conferred by the statute. The above order [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: 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.”

Applying this to the present case, the court dismissed the present petition by holding, “there was no lockdown from 1st June, 2020. What expired during the lockdown was not the limitation to file the written statement. On being served on 11th January, 2020, the petitioner/defendant had to file the written statement by 10th February, 2020. On 14th March, 2020, when the misplaced file and documents were supposedly found, a further period of 33 days had already expired. By 23rd/25th March, 2020, when the lockdown in Delhi/nationwide lockdown was announced, a total of 72/74 days had already expired. Second proviso to Order VIII Rule 1 CPC vests the court with discretion to condone delay in filing the written statement provided a total time period of 120 days from the date of service of summons had not elapsed. It is in this context that the petitioner/defendant was required to explain why he did not file the written statement immediately in June, 2020 and waited for a further period of almost three months to file the written statement. It would have been probably different had the first 30 days of limitation being available when the lockdown was enforced, as in that event, without a doubt, the limitation would have been enlarged in terms of the directions of the Supreme Court.”

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