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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sathish Ninan, J.
Shafeer – Appellant
Versus
Rahul – Respondent
M.A.C.A. Nos.(unnumbered) of 2022 (Filing Defect F.Nos.2297 & 2300 of 2022)
Decided On : 15-09-2022
Negotiable Instruments Act, 1881 - Section 138 - Arbitration and Conciliation Act, 1996 - Sections 23(4) and 29A - Commercial Courts Act, 2015 - Section 12A - Period of limitation - Exclusion and extension - Order dated is restored and in continuation of the subsequent orders dated, and, it is directed that period from till 28.02.2022 shall stand excluded for purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings - Consequently, balance period of limitation remaining as, if any, shall become available with effect - In cases where limitation would have expired during period between, notwithstanding actual balance period of limitation remaining, all persons shall have a limitation period of 90 days - In event actual balance period of limitation remaining, with effect is greater than 90 days, that longer period shall apply - Whether condonable or not, shall stand extended - In the appeal with filing defect No.2300/2022, the award was passed on 01.02.2020 - Certified copy of the award was applied for only on 04.02.2022. Exclusion of limitation commenced only from 15.03.2020 - Appellant lost the period from 01.02.2020 till 15.03.2020 from out of the period of limitation which he was entitled for. (Para 6)
Finding of the Court :
Apex Court specifically noted distinction under Limitation Act, 1963 with regard to extension of prescribed period of limitation and exclusion of time in computing limitation - It was clarified that, though effect of initial orders in SM case was only to extend the period of limitation, final order provided for exclusion of period from while computing limitation - In this regard it is relevant to refer to paragraph 33.2 of judgment in Prakash Corporates which reads - One of 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 aforesaid final orders dated in SMWP No.3 of 2020 by another three-Judge Bench of this Court - In those final orders, Court not only provided for extension of period of limitation but also made it clear that in computing period of limitation for any suit, appeal, application or proceeding, period from to shall stand excluded. Such proposition of exclusion, which occurred in later orders, was not before Court in Sagufa Ahmed, which was decided much earlier i.e. on - In light of above, Court conclude that no modification with order of Court dated is necessary.
Result : Order accordingly.
ORDER :
On objections by the Registry regarding the computation by the appellants regarding the period of limitation in filing of these appeals, the memorandums have been placed before the Court as unnumbered appeals.
2. Clarification sought is regarding the calculation of limitation in the light of the exclusion and extension of the period of limitation granted in SUO MOTU WRIT PETITION (C) NO. 3 OF 2020 IN RE: CONGIZANCE FOR EXTENSION OF LIMITATION (2022) 3 SCC 117.
3. The directions of the Apex Court are as hereunder:-
(ii) Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
(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.
(iv) It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A 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.”
4. From the above the following emerge:-
(i) Exclusion of period from 15.03.2020 to 28.02.2022 for the purpose of limitation.
(ii) In cases where the period of limitation commenced between 15.03.2020 and 28.02.2022, a further period of 90 days from 01.03.2022 is available as the period of limitation. (If longer statutory period is prescribed, the same shall be available).
(iii) In cases where the period of limitation expired during the excluded period (between 15.03.2020 and 28.02.2022), a further limitation period of 90 days from 01.03.2022. (If longer statutory period is prescribed, the same shall be available).
(iv) In cases where the period of limitation commenced prior to 15.03.2020 but had not expired by that date, time will run up to 15.03.2020. The balance period as per the applicable statute would be available from 01.3.2022. If the balance period is less than 90 days, still a period of 90 days shall be available. If the balance period is more than 90 days then the longer period will be available.
(v) In cases where the period of limitation had expired prior to 15.03.2020, only the benefit of exclusion under clause (i) is available.
(vi) The period from 15.03.2020 to 28.02.2022 having been excluded from the purview of limitation, there will be no running of time during the said period. Therefore, if certified copy of an order/judgment delivered between 15.03.2020 and 28.02.2022 is applied for during the said period or after 01.03.2022, delay is to be calculated as if the order/judgment was passed on 01.03.2022.
(vii) Within the extended period of limitation, necessarily, the exclusion provided for under Section 12 of the Limitation Act will be available.
5. Now coming to the appeal with filing defect No.2297/2022, the award was passed on 06.12.2021 i.e. during the period of exclusion. Therefore, limitation will commence to run only from 01.03.2022. Copy application was submitted only on 07.05.2022. Therefore, the period from 01.03.2022 till 07.05.2022 has to be deducted from the 90 days limitation period which run
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