Wednesday, September 23, 2020
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Supreme court may need to tweak its order on limitation

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
 

In an unprecedented order dt.23rd March, 2020, of humongous proportions, the Supreme Court of India, has infused life into many a cause, which may have been breathing its last, as of 15th March, 2020, “till further orders of this Court in these proceedings”. Never before in the annals of any country’s judicial history, such an order of epochal dimensions ever appears to have been passed. Purists and academicians may debate on the powers exercised by the top court under Art.142 of the Constitution of India ‘to do complete justice’ and declare it to be the law of the land under Art.141. We live in extraordinary times. Such extraordinary orders seem passé.

Sitting on the lawns of a Mumbai Hotel, adjacent to Gateway of India, the late, lamented Associate of US Supreme Court Justice Antonin Scalia, wondered aloud, “In my experience, India’s Supreme Court is without doubt the most powerful institution in the world. No other institution matches the sweep of yours. That they can suo motu take up causes, is a staggering reality, we can only dream of, as we are not entitled to do so. Only those causes that get escalated to us, in the hierarchal passage, we can deal with. That is some power that even Alexander Hamilton may never have contemplated in his Federalist Papers when he said that between the Legislature, Executive and Judiciary, Judiciary with its judgment on paper, was the least powerful .Your Judges may well be the true Law Lords on the pulpit.” The recent orders dt.23rd March,2020, pretty much typifies what Scalia eulogised.

The impact of Coronavirus, on every facet of life, is huge, to say the least. There is no aspect of life, it has not impacted. The hosts did cattier of the virus is the Homo sapiens. The viral spread since that Nov, 17th in Wuhan, China, has been phenomenal that the world is struggling to flatten the curve. The economies of the world have faced nothing like this before. The 1930 depression days and 2008 subprime crisis, look like child’s play today. This Pandemic has not left any area unvisited and imperilled.

Judiciary has been an island from such viral spreads. Not this time. The litigator and his lawman cannot go to Court. The Judge cannot sit on the bench. Social distancing is the order of the day. The Supreme Court has been forced to re organise and embrace video conferencing route. Several High Courts have closed down and if at all, working to tackle ‘emergency cases’. Advocates cannot meet clients. No scope for any personal visits or conferences or exchange of physical papers. The result is that causes that need to go to Court are getting stalled.

Ordinarily, the litigants ought to be vigilant. They cannot take their own sweet time to seek reliefs, as only creaking wheels get oil or crying babies milk. The law of limitation applies to almost every other cause. There is a specific timeline imposed by law, be it by statute or as judicially mandated, as per which courts need to be moved in time, for seeking reliefs. Beyond the time line, the cause may become time-barred and incapable of fetching reliefs. In general, it is the Limitation Act, 1963, which provides the time lines for such reliefs, beyond which the causes may have lost their potency to be taken to court.

For instance, take the case of a simple borrowing by an individual on the basis of a Promissory Note. The creditor has to seek recovery from the borrower or sue for recovery within 3 years from the date of such Promissory Note, subject to variants based on the transactions between them. Beyond the specified period, imposed by the law of limitation, the creditor cannot sue the debtor, even if the due or debt may well be subsisting. That is the harsh legal reality.

 

While so, the apex court has suo motu come to the rescue of a whole host of litigants, who are in no position to move the courts of law, within the time stipulated by the law of limitation. Time and tide wait for no man or woman. But our Supreme Court is so powerful that it can pause time too. That is the plenary power exhibited by our top court. Never more in public interest than on this occasion. It may have soothed the jangling nerves of many a litigant, who may have lost the right to sue in time, by this deadly invisible Covid-19 enemy.

While the scientific and research world are groping for a vaccine, to handle this unique strain of virus, drawing comparisons to Black Death or Bubonic Plague or the Spanish flu, not to forget H1N1, SARS and the like, the Supreme Court has found a ready vaccine to inoculate the litigant public from losing their rights, by one comprehensive order of unimaginable vision. Someone, somewhere was worried and thinking right, and the Supreme Court quickly took note, on its own motion, and come to the rescue of possibly hundreds and thousands of litigants, who may well have lost their right to sue, but for this order, for no fault of theirs. Supreme Court has come to their rescue as Abadbandhavan in these dark, devilish climes.

Kudos to the learned Chief Justice Arvind Sharad Bobde, to preside over the three member Bench on 23rd March, and hearing the Counsel for Union of India and the President of the Supreme Court Bar Association (SCBA), and coming up with this timely vaccine. The Originalists may complain and grieve that Art.142 was not meant for such occasions. It was meant to provide relief in a litigation between two entities to ‘do complete justice’ between them. More importantly, murmurs may be heard in the corridors of courts and seminar circuits, whether the Supreme Court was empowered to extend the period of limitation by such an omnibus order, which went against the grain of the statutes. Can Art.142 be invoked to provide redressal which was barred by statutes, which the Supreme Court had itself held impermissible, as in say the famous/infamous SCBA vs V C Mishra case? Yes, yes, yes, the legal fraternity has never been devoid of the dissenters and naysayers. Surely, if they had clients to serve, their dissent may evaporate. That would suffice to support what the top court has done thoughtfully done, keeping alive causes which may have become time-barred, with the litigants in no position to approach the courts to file their cases.

 

Be that as it may, just one caveat, typically, this may just not be enough or sufficient relief for all comers. The orders of the Supreme Court would ensure that claims which may have become time-barred by 15th March, 2020, will be kept alive ‘till further orders of the Court in these proceedings’. So far so good. This would mean that the claims will not become barred, by operation of the law of limitation, be it under the general law of limitation or under various statutes. But, there are causes which are unique in genre, to which this order may not serve the intended purpose.

One is compelled to bring to the notice of the Supreme Court and the Union of India and SCBA and all those who may care, that as per Art. III R.6 of Carriage of Goods By Sea Act, 1930, it is not a case of application of law of limitation. What applies is the unique and internationally uniformly accepted proposition of ‘extinguishment of liability’ of the sea carriers. It is a UN mandated protocol and India is a signatory to it as well, be it the Hague-Visby or the Hamburg Rules or whichever. The simple fact is that if the claims against such sea carriers are not lodged within one year from the date on which goods are delivered or supposed to be delivered, the ‘liability of the sea carriers will stand extinguished’. That is the statutory mandate and it is unexceptionable. Intervening holidays are immaterial is the settled law.

The law of the land vide Art.141 adverted to by the Supreme Court itself in its orders dt.23rd March, 2020, is contained in the verdict of the Supreme Court in East & West Steamship Co vs A.S.K.K. Ramalinga Chettiar reported in AIR 1960 SC 1058. This is good and binding law and is applicable even today. In the said circumstances, the orders dt.23rd March,2020 of the Supreme Court in Suo Motu Writ Petition (Civil) Nos. 3/2020 –In Re: Cognisance For Extension of Limitation- will not keep alive the claims to be filed under the Carriage of Goods by Sea Act,1930, on or after 15th March,2020. Since the liability of the sea carrier would stand ‘extinguished’ by operation of law, extension of limitation period, would be otiose or meaningless.

It is a different matter whether the Supreme Court can infuse life into such claims under the Carriage of Goods by Sea Act,1930, after the liability of the sea carrier had become ’extinguished’. It would be a huge legal issue of immense proportions that may need to be resolved. The legislation in question is based on international protocol and statutory practices. Can our Supreme Court declare – that on and from 15th March, 2020 ‘till further orders in these proceedings’ the liability of the sea carrier shall not stand ‘extinguished’. That would be a mouth watering story for another occasion. Watch this space.

For the present, one sincerely opines that it may be appropriate to bring to the notice of the Supreme Court, claims of such unique genre, where the liability of the respondent/defendant may become ‘extinguished’ so that the orders dt.23rd March, 2020, can be extended to cover them also, without prejudice to legal issues arising there from. Otherwise, these claims cannot even be brought to court, as per the law of 1960 vintage from the top court itself.

No lawyer worth his salt would ever be satisfied with even the most generous of orders from the Supreme Court. That is the nature of us, as peculiar beasts of law. While applauding the apex court for this timely and thoughtful suo motu action, it is humbly submitted that the issue of ‘extinguishment of liability’ of respondents or defendants, may also be brought within the beneficial blessing of the orders dt.23rd, March, 2020, for now, as these claims may run to not merely hundreds of thousands but even to crores, at times, from experience.

The financial and economic impact on the affected lot may be significant and avoidable. Who would bring this issue to the notice of the Supreme Court, as the most powerful institution in the world or there would need to be another suo motu action, if this piece happens to catch the eyes of the Judges or reaches the ears of the Judges. In these digital times, when anything and everything can go viral, why not this prayerful piece, for justice?

(Author- Narasimhan Vijayaraghavan- is practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

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