TMI Blog2022 (10) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation period was sought on behalf of the complainant, in case the proceedings were initiated within the period prescribed under proviso of Section 138 of the NI Act - A gross injustice shall be incurred to the complainant/petitioner in case he is denied to exclude the period during 17.03.2020 till 20.10.2020 for the purpose of issuing of notice from the date of return memo i.e. 17.03.2020 till the date of issuance of notice i.e. 20.10.2020. The order passed by the learned Trial Court declining to take cognizance in the proceedings initiated before Trial Court under Section 138 of the Negotiable Instruments Act appears to be erroneous - appeal allowed. - CRL. APPEAL NO.491/2022 - - - Dated:- 19-10-2022 - HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA Appellant Through: Mr. Abhinash Kumar Mishra and Mr. Gaurav Kr. Pandey, Advocates. Respondents Through: Mr. D.S. Dagar, APP for State. JUDGMENT ANOOP KUMAR MENDIRATTA, J. 1. Appeal under Section 378 Cr.PC has been preferred on behalf of the appellant for setting aside order dated 25.02.2021 passed by the learned MM, Central District, Tis Hazari in Naresh Chand Jain Vs. M/s Zasfa Packaging, whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion conferred by the proviso to Section 421 (3) of the Companies Act, 2013. 4. It may be observed that in the present case, vide order dated 25.02.2021, learned MM declined to give benefit of extension of limitation after exclusion of period from 17.03.2020 till 20.10.2020, in terms of directions issued by the Hon ble Supreme Court in Suo Motu Writ Petition (Civil) No(s).3/2020 vide order dated 23.03.2020 on the ground that no post/courier was suspended and notice could be issued by electronic form. It was also observed by learned MM that the Court does not have power to condone the delay in sending the legal demand notice as per proviso (b) of Section 138 of N.I. Act. It was further interpreted that if contention of complainant is accepted than 15 days period from the receipt of legal demand notice to pay the cheque amount, shall also stand extended, in which case the present complaint would be premature and liable to be dismissed on that account. Reliance was also placed upon judgment passed by Hon ble Supreme Court in Sagufa Ahmed Ors. Vs. Upper Assam Plywood Products Pvt. Ltd. Ors., Civil Appeal Nos.3007-3008 of 2020 . It was held by learned MM that time provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that 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 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 this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the respondent has failed to make the payment within stipulated period of 15 days after the notice was sent by the complainant on 20.10.2020 and as such the complaint was instituted on 10.11.2020 within the stipulated period under Section 138 of the Negotiable Instruments Act. 10. While referring the extension of benefit of limitation in issuing notice under Section 138 of the Negotiable Instruments Act in terms of directions passed vide order dated 23.03.2020 in Suo Motu Writ Petition (Civil) No(s).3/2020, learned Trial Court has placed reliance on judgment passed by the Hon ble Supreme Court in Sagufa Ahmed Ors. Vs. Upper Assam Plywood Products Pvt. Ltd. Ors. in Civil Appeal Nos.3007-3008 of 2020 decided on 18.09.2020. It may be noticed that in the aforesaid case, the appellant therein had received the copy of the order on 19.12.2019 and choose to file the statutory appeal before the NCLAT on 20.07.2020 with an application for condonation of delay. The application was dismissed by the Appellate Tribunal on the ground that the Tribunal has no power to condone the delay beyond a period of 45 days. It was noticed by the Hon ble Supreme Court that under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case the proceedings were initiated within the period prescribed under proviso of Section 138 of the NI Act. It may be appropriate to reiterate the object underlying Section 138 of NI Act which is to give credibility to negotiable instruments in business transactions and to create an atmosphere of faith and reliance by discouraging people by dishonouring their commitments which are implicit when they pay their dues through cheque. A gross injustice shall be incurred to the complainant/petitioner in case he is denied to exclude the period during 17.03.2020 till 20.10.2020 for the purpose of issuing of notice from the date of return memo i.e. 17.03.2020 till the date of issuance of notice i.e. 20.10.2020 in terms of directions issued by the Hon ble Supreme Court of India in SMW(C) No.3 of 2020. 12. It may also be appropriate to refer to judgment passed by the Hon ble Supreme Court in Prakash Corporates vs Dee Vee Projects Limited, AIR 2022 SC 946, wherein the appellant had challenged the order passed by the High Court in declining the prayer of the defendant/appellant for granting further time to file its written statement after expiry of 120 days from the date of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the Defendant. 20.3. Therefore, in view of the orders passed by this Court in SMWP No. 3 of 2020, we have no hesitation in holding that the time limit for filing the written statement by the Appellant in the subject suit did not come to an end on 06.05.2021. It was also noticed that the decision in Sagufa Ahmed (Supra) in Civil Appeal Nos.3007-3008 of 2020 was rendered by three Judge Bench of this Court much before the final orders dated 08.03.2021 and 27.09.2021 in Suo Motu Writ Petition (Civil) No(s).3/2020 by another three Judge Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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