Page 81 – Vaish Associates Advocates

GST Café – Supreme Court Holds ‘There Is No Estoppel In Case Of Public Interest’

We are pleased to share with you the copy of our latest publication of GST Café, wherein we have analysed the recent ruling of the Hon’ble Supreme Court of India in the case of Union of India & Anr. vs. M/s. V.V.F Limited., where it has been held that there is no estoppel in case of public interest.

We trust that you will find the same useful. Looking forward to receiving your valuable feedback.

For any further information/ clarification, please feel free to write to:
Mr. Shammi Kapoor, Partner at [email protected]

GST Café – Presentation on Chapter VAA of Customs Act, 1962

We are pleased to share with you the copy of our latest publication of GST Café, a briefing on the changes in administration of rules of origin as introduced by the Finance Act, 2020.

We trust that you will find the same useful. Looking forward to receiving your valuable feedback

For any further information/ clarification, please feel free to write to:
Mr. Shammi Kapoor, Partner at [email protected]
Mr. Arnab Roy, Principal Associate [email protected]
Ms. Surabhi Prabhudesai, Associate [email protected]

Arbitration Proceedings: Force Majeure and Frustration of Contracts

Vaish Associates Advocates had earlier issued Frequently Asked Questions on Force Majeure and Contractual Obligations due to the impact of Covid-19 on on-going contracts.

In continuation of the same, along with a recent judgement clarifying the extent to which the parties can validly invoke the doctrine of frustration under the Indian Contract Act, 1872, we attach herewith a compilation of some recent judgments in cases wherein the parties sought to invoke force majeure clause / doctrine of frustration on account of COVID-19 outbreak and lockdown.

Following conclusions emerge out of the judgments:

Every contract will strictly be governed by its terms and there cannot be a straight-jacket formula applied to ascertain whether the contractual obligations will be suspended/terminated/continued.
In the event the contract provides for the force majeure clause and the recourse to be adopted in the event of force majeure, then parties cannot allege frustration of contract and have to be strictly bound by terms of the contract.
If the contract provides for an alternative mode of performance, it has to be resorted before alleging an event of force majeure.
Merely because the contract has become onerous/inconvenient, that in itself would not render the contract impossible/unlawful.
Payment obligations arising out of the executed contract cannot be delayed/waived off due to the present COVID-19/lockdown situation.

Please feel free to write to us, in case of you require further clarification or information with regard to the issues covered.

For more info, please contact Mr. Gaurav Varma at [email protected]

NCLAT: Proceedings filed in DRT will not extend the period of limitation under the IBC, 2016

The National Company Law Appellate Tribunal (“NCLAT”) in the case of Bimalkumar Manubhai Savalia v. Bank of India and Another (decided as per order dated March 05, 2020) has held that proceedings filed in the Debt Recovery Tribunal (“DRT”) under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) or for recovery of debts due to banks and financial institutions will not extend the period of limitation under the Insolvency and Bankruptcy Code, 2016 (“IBC”).

Facts

This matter reached the NCLAT by an appeal filed by the shareholder and director (“Appellant”) of the corporate debtor M/s. Radheshyam Agro Products Private Limited (“RPL”) against an order dated September 20, 2019 (“Impugned Order”) passed by the Ahmedabad bench of the National Company Law Tribunal (“NCLT”) regarding an application moved by Bank of India (“Respondent No. 1”) under section 7 (initiation of corporate insolvency resolution process by financial creditor) of the IBC (“Application”). The Application had been filed on August 30, 2018 on the ground that the RPL had defaulted in repayment of a loan facility. This Application had now been admitted by the NCLT against RPL, by way of the Impugned Order.

Issue

One of the issues under consideration was whether the limitation period in respect of Application filed by Respondent No. 1 under the IBC, had been extended due to proceedings pending/ initiated in the DRT under the SARFAESI Act and debts due to banks and financial institutions.

Arguments

Contentions of the Appellant:
It was contended by the Appellant that the NCLT had not taken into consideration the objection that the Application filed was time barred.

Contentions of the Respondent:
Respondent No. 1 submitted that even though the date of default is reflected in the statutory form as November 05, 2014, the Application had been filed before the NCLT on August 30, 2018 and that such filing date was within the limitation period for reasons more detailed below. It was submitted that the Appellant had filed an application under Section 17 (right to appeal) of SARFAESI Act wherein, the Appellant had stated that the loan facility availed had not been repaid, which amounted to acknowledgment of debt. Further, RPL had issued a letter dated April 28, 2016 and a second letter on June 01, 2016 in pursuance of a One-time Settlement (“OTS”) offer. It was submitted that even though the expression ‘without prejudice’ was used in the letter dated April 28, 2016, the said expression was not incorporated in the second letter dated June 01, 2016.

Therefore, the second letter could also be treated as an acknowledgment of debt by RPL. It was also contended that the guarantor to RPL, had paid INR 1,26,619 and INR 1,28,645 by transferring the said amounts to RPL’s account on April 01, 2017, as per the terms of a guarantee deed. Such transfer of money by the guarantor could also be treated as an acknowledgment of debt for the purposes of limitation. Importantly, it was contended that the limitation period had been extended and consequently had started running from the date of the transfer of the aforesaid amounts by the guarantor to RPL’s account (April 01, 2017). Since the Application had been filed on August 30, 2018, the Respondent No. 1’s case had clearly fallen within the limitation period.

Observations of NCLAT

The NCLAT referred to the judgment of the Supreme Court in B.K. Educational Services Private Limited v. Parag Gupta and Associates [(2019) 11 SCC 633], to determine if the Application filed by Respondent No. 1 was within the limitation period. The NCLAT noted that the NCLT had observed that the date of mortgage was November 18, 2010. Further, it was noted that the first OTS offer was made on April 28, 2016 for INR 12 crores. Thereafter the OTS offer was revised to INR 14.56 crores on June 01, 2016. Finally, the credits had come in from the guarantor into the loan account of Respondent No. 1 on March 31, 2017. It was noted by the NCLAT that the OTS was not accepted by Respondent No. 1 therefore, this could not be treated as an acknowledgment of debt under Section 18 (effect of acknowledgment in writing) of the Limitation Act, 1963 (“Limitation Act”). The contention of Respondent No. 1 that the second letter/ revised OTS offer had not employed the expression ‘without prejudice’ and therefore, the revised OTS offer should have to be treated as an acknowledgment of debt, was negated by the NCLAT.

The NCLAT reasoned that Article 19 (effect of payment on account of debt or of interest on legacy) of the Limitation Act would apply to suits, and not to applications filed under Sections 7and 9 (application for initiation of corporate insolvency resolution process by operational creditor) of IBC. Instead, Article 137 (any other application for which no period of limitation is provided elsewhere in the third division-applications) of the Limitation Act would apply to applications under Sections 7 and 9 of IBC, as previously held by the Supreme Court. Therefore, the argument that the limitation period would be extended and consequently, counted from April 01, 2017 was negated by NCLAT.

Further, the contention of Respondent No. 1 that the Appellant’s application under Section 17 of the SARFAESI Act had admitted to non-repayment of loan facility, was to be counted as an acknowledgment of debt, for the purposes of limitation, was also rejected. The NCLAT perused the grounds of the aforesaid application, and observed that the Appellant had taken objections in the said application on technical grounds. Such technical grounds, inter alia, included non-receipt of notices as required to be served on a borrower under Section 13(2) of the SARFAESI Act. The NCLAT noted that such grounds/ objections could not be presumed to be an acknowledgment of debt by the Appellant.

Decision of NCLAT

The NCLAT referred to its judgment in C. Shivkumar Reddy v. Dena Bank and Another [(C.A (AT)(Insolvency) No. 407 of 2019], wherein it had considered the judgements of the Supreme Court in Jignesh Shah and Another v. Union of India and Another [(2019) SCC OnLine SC 1254], Gaurav Horgovindbhai Dave v. Asset Reconstruction Company (India) Limited and Another [C.A No. 4952 of 2019], and B.K. Educational Services Private Limited v. Parag Gupta and Associates, where it had held that there was nothing on record to suggest that the corporate debtor or its authorized representative had accepted or acknowledged the debt within three years from default date or from the date the loan account of the corporate debtor had been declared as a ‘non-performing asset’.

In the same vein, the NCLAT observed that in the present case, the Appellant or RPL had never issued any acknowledgment within three years from the date of default (November 05, 2014). Therefore, the limitation period was held as not having been extended and the Application filed by the Respondent No. 1 was held to be filed beyond the limitation period. Allowing the present appeal, the NCLAT set aside the Impugned Order, and released RPL from the corporate insolvency resolution process, including any actions of the resolution professional and committee of creditors.

NCLAT was of the view that the proceedings filed in DRT under the SARFAESI Act or for recovery of debts due to banks and financial institutions would not extend the period of limitation since such proceedings are independent. Further, as per Section 238 (provisions of IBC to override other laws) of the IBC, the IBC is a complete code and will have an overriding effect on other laws. Therefore, proceedings pending in the DRT, which are initiated either under the SARFAESI Act or for recovery of debts due to banks and financial institutions would not in any way extend the limitation.

Vaish Associates Advocates View

NCLAT contemplated on the applicability of the Limitation Act, as far as applications under Sections 7 and 9 of the IBC were concerned. In doing so, it held that proceedings before DRT under the SARFAESI Act or for recovery of debts due to banks and financial institutions would not extend the period of limitation under the IBC, as such proceedings were independent. Therefore, such proceedings could not be taken into consideration to extend the period of limitation under IBC.

The NCLAT also referred to the decision of the Supreme Court in B.K. Educational Services Private Limited v. Parag Gupta and Associates to reason that it was Article 137 of the Limitation Act which would apply to the applications under Sections 7 and 9 of IBC.

For more information please write to Mr. Bomi Daruwala at [email protected]

Delhi High Court lays down law on classification of disputes

The Delhi High Court in Shri Chand Construction and Apartments and others v. Tata Capital Housing Finance (decided on March 04, 2020), held that the use of words “all or certain disputes” in Section 7 (arbitration agreement) of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) permits classification of disputes but does not permit classification of claims. It was further held that once the time for filing written statement has been extended then the time for filing the application under Section 8 (power to refer parties to arbitration where there is an arbitration agreement) of the Arbitration Act also stands extended.

Facts

A suit was filed by Shri Chand Construction and Apartments (“Plaintiff”) against Tata Capital Housing Finance (“Defendant”). The Plaintiff had sued the Defendant for recovery of damages for loss by the Defendant of the title deeds of the immovable property of the Plaintiff deposited with the Defendant by way of equitable mortgage. The Plaintiff took a loan from the Defendant and deposited as security the title deeds of its immovable property. The agreement specified that the security (title deeds) provided must be returned by the Defendant once the loan was repaid. When the said loan was repaid, the security was not returned. Further, the loan agreement had an arbitration clause, which provided that if at any point in time the Defendant comes under the purview of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI Act”) or Recovery of Debts due to Banks and Financial Institutions Act, 1993 (“DRT Act”) the arbitration clause shall “at the option of the Defendant, cease to have any effect”.

After the suit was filed and the summons was issued, the Defendant, through an advocate, appeared before the Registrar and informed the Registrar that the Defendant would make an application to refer the dispute to arbitration. The Registrar granted time to the Defendant to make this application and also to file the written statement. As the written statement was not filed by the Defendant, pursuant thereto, the single judge of the Delhi High Court, by an order, closed the Defendant’s right to file its written statement. This order, closing the Defendant’s right to file the written statement was challenged by the Defendant in an appeal.

The court of appeal extended the time for the Defendant to file its written statement to October 11, 2019. Prior to October 11, 2019, the Defendant filed an application under Section 8 of the Arbitration Act (“Section 8 Application”). The Section 8 Application was for the first time listed before the single judge of the Delhi High Court on August 28, 2019, when notice was issued and directions passed to the Plaintiff and Defendant to complete the pleading relating to the Section 8 Application. The Plaintiff, argued that the Defendant was not entitled to seek a reference to the arbitration because of its conduct and on account of the fact that the Defendant preferred an appeal against the order closing the Defendant’s right to file its written statement.

Issues

The following issues were examined by the Delhi High Court:

Whether the Defendant had, through its own conduct, waived its right to make an application under Section 8 of the Arbitration Act; and
Whether the arbitration clause was still valid.

Arguments

The counsel for the Defendant argued that since the agreement in question provided for a dispute resolution clause, the dispute should simply be referred to arbitration.

The Plaintiff’s counsel opposed this argument contending that the Defendant, by its conduct, that is, by preferring the appeal, has disentitled itself from applying under Section 8 of the Arbitration Act. The Plaintiff further contended that the Defendant, by filing an appeal against the order closing the Defendant’s right to file written statement has opted to proceed with the suit and cannot by means of the Section 8 Application seek to refer the dispute between the Plaintiff and the Defendant to arbitration.

The Plaintiff’s counsel further contended that the arguments made by the Defendant’s counsel in the appeal proceedings before the division bench unequivocally indicated that the intention of the Defendant was to file its written statement and to proceed with the trial of suit, thereby indicating that the Defendant did not have any intention to refer the dispute between the Plaintiff and the Defendant to arbitration. The Plaintiff’s counsel further informed the single judge who was adjudicating the Section 8 Application that the court of appeal (the division bench) had taken note of the Section 8 Application which was pending adjudication and despite taking note of the Section 8 Application, only directed the Defendant to file its written statement by October 11, 2019.

Observations of the Delhi High Court

While deciding the Section 8 Application the learned single judge, observed that Section 8 of the Arbitration Act requires the courts to recognise and give effect to the arbitration agreement. Section 8 of the Arbitration Act mandates a judicial authority to refer the parties to arbitration provided that, a party to the arbitration agreement makes an application to the court, no later than the date of submitting that party’s first statement of defence on the substance of the dispute. In simple words, prior to the date of filing the written statement to a suit, the party requesting for the dispute to be referred to arbitration has to make the application under Section 8 of the Arbitration Act.

The Defendant had filed the Section 8 Application before the date of submitting its ‘first statement’ on the substance of the disputes referred to in the Suit. The single judge further observed that post the 2015 amendment to the Arbitration Act, the only test which the legislature requires is that the application under Section 8 of the Arbitration Act is to be made or a plea under Section 8 of the Arbitration Act is to be taken, prior to the date of submitting one’s written statement. The Delhi High Court also inferred that once the division bench (the court of appeal) extended the time period for the Defendant to file its written statement then, the time period for filing the Section 8 Application under the Arbitration Act is also extended. In view thereof, the Delhi High Court did not find any merit in the opposition to the Section 8 Application by the Plaintiff.

With regard to the second issue, as to that is, whether, as on date when the dispute arose between the parties, was there a valid arbitration clause subsisting between the parties? While deciding this issue, the Delhi High Court, sought a confirmation from the Defendant’s counsel as to whether the Defendant comes under the purview of SARFAESI Act or DRT Act. The Defendant’s counsel informed the Court that at the time of executing the agreement, the Defendant did not come under the purview of the SARFAESI Act and DRT Act but subsequently it did.

The Defendant’s counsel argued that, the arbitration clause will cease to have effect only in so far as the claim of the Defendant against the Plaintiff is concerned but will continue to have effect as far as the claims of the Plaintiff against the Defendant is concerned. While deciding the Section 8 Application, the Delhi High Court had to decide as to whether there can there be a valid arbitration clause providing for arbitration of claims of one of the parties and providing for the remedy of the court or any other fora for claims of the other party.

In deciding this issue, the Delhi High Court referred to Section 7 of the Arbitration Act and particular emphasis was laid on the words “all or certain disputes”. The single judge was of the view that the words, “all or certain disputes” mean that the Arbitration Act permit classification of disputes but does not permit classification of claims. Hence, these words, did not allow claims of one of the parties arising in respect of a defined legal relationship to be adjudicated by arbitration and claims of the other party arising in respect of the same legal relationship to be adjudicated by any other mode. The issue of spitting up of claims and causes of action as enshrined in the provisions of the Code of Civil Procedure, 1908 would be contrary to the public policy and if it would be allowed then it would result in multiplicity of proceedings and possibility of conflicting findings.

The single judge further observed that the dispute resolution clause is contained in a Loan Agreement dated April 18, 2017 between the Plaintiff and the Defendant, wherein, the Defendant loaned monies to the Plaintiff and the Plaintiff agreed to repay. Clause 2.4 of the Loan Agreement required the Plaintiff to furnish security and further provided that upon full and final payment by the Plaintiff to the Defendant of all amounts, the Defendant shall release the security in favour of the Plaintiff. It is not in dispute that the Plaintiff have repaid all the dues of the Defendant but the Defendant has been unable to return the security deposited by the Plaintiff with the Defendant and the claim of the Plaintiff in the present suit is only for damages for not so returning the security in the form of title deeds of immovable property of the Plaintiff.

Decision of the Delhi High Court

The Delhi High Court held that the arbitration agreement was not valid due to the Defendant coming under the purview of SARFAESI Act and that the Section 8 application was not maintainable and therefore the Delhi High Court dismissed the Section 8 Application.

Vaish Associates Advocates View

This is an important decision that lays down the law on a procedural issue, especially, if the time is extended for a party to file its written statement then the time to file the Section 8 application under the Arbitration Act is also simultaneously extended. However, pursuant to the 2015 amendment to the Arbitration Act, a plea can also be raised with regards to refer the parties to arbitration.

Further, the words “all or certain disputes” as referred to in Section 7 of the Arbitration Act, mean that the Arbitration Act permit classification of disputes but does not permit classification of claims. Furthermore, the issue of spitting up of claims and causes of action as enshrined in the provisions of the Code of Civil Procedure, 1908 would be contrary to the public policy of India.

For more information please write to Mr. Bomi Daruwala at [email protected]

Impact of force majeure on commercial contracts in light of the coronavirus outbreak

The novel coronavirus (“COVID-19”) has, in some way or the other, affected almost the entire world’s population and significantly impacted businesses globally. With Covid-19 being declared a pandemic by the World Health Organisation and its consequential effect on trade and commerce, disputes have and will arise with respect to performance and enforcement of contracts. Under the present circumstances, it would be useful to examine whether the COVID-19 pandemic can be construed as a force majeure event under extant Indian laws and thereby, be used as a defense by a non-performing party to shield it from liabilities arising out of its failure to perform or delay by it in performance of its obligations under a contract.

What is Force Majeure?

The term ‘force majeure’, literally translates to ‘superior force’ and has its origins in French civil law. It means extraordinary events, situations or circumstances beyond human control. The concept of force majeure has been defined in Black’s Law Dictionary as “an event or effect that can neither be anticipated nor controlled.” The ‘event’ may include natural disasters such as floods, drought, earthquakes as well as uncontrollable events such as war or terror attacks. However, under common law in India, the concept of force majeure is incorporated in the form of the doctrine of frustration under Section 56 of the Indian Contract Act, 1872 (“Act”) and contingent contracts under Section 32 of the Act.

The doctrine of frustration present in Section 56 of the Act states that a contract will be frustrated if its fundamental purpose is destroyed or if its performance is rendered impossible because of some intervening or supervening event. If this occurs, the parties to the contract will be discharged from their obligations to perform such contract. Section 32 of the Act provides for the discharge of obligations due to the impossibility of an express contingency. In other words, if the contract expressly provides that performance is contingent on the occurrence of an event, the impossibility of the occurrence of such event would lead to the contract becoming void.

Analysis of the legal position of force majeure

Force majeure comes into effect, when circumstances or events, the occurrence of which are beyond the control of the contracting parties, rendering performance of their contractual obligations impossible. However, it may be pertinent to note that under both Indian and English law, force majeure does not simply mean anything outside the control of the parties to a contract. Its meaning and applicability depend on the particular contract, and the wording used. It is contractual language intended to anticipate unforeseen events and provide for what happens on their occurrence.

Under Indian law, a force majeure clause has to be expressly provided for in contracts, to save the performing party from consequences of anything over which such party has no control. It has to be clearly mentioned in the contract and protection given to the parties will depend upon the language and interpretation of such clause. In general, a force majeure clause is divided into two major parts: the classification of what constitutes a “force majeure event” and the operative provisions which deal with the consequences if there is a force majeure event.

Most contracts today contain detailed provisions/ clauses under which events or circumstances that may be considered as a force majeure event are expressly set out, or alternatively broad categorisations of any occurrence qualifying as a force majeure event are dealt with clearly. In such instances, the occurrence of events falling within the detailed specifics or broad categorisations, would enable a party to keep from performing its obligations under the contract by invoking force majeure.

Burden of proving occurrence of force majeure event

The burden of proving the existence or occurrence of an event which falls within the categorisation of a force majeure event is on the party seeking relief from performance of its obligations under the contract. Such party will generally be required to show that: (a) it was obstructed, hindered or delayed from performing its contractual obligations as a result of the event; (b) such event/ inability to perform was beyond its control; and (c) there were no reasonable steps the party could have taken to avoid such event or consequences.

Typically, a force majeure clause would provide that the party seeking to rely on the force majeure clause must notify the other party, within a specified time frame, of the fact that the force majeure event is hindering its performance. The notice will usually be required to include detailed information about the force majeure event and its impact on the party’s ability to perform its obligations.

Duty to mitigate

The duty to prove that reasonable steps were taken to mitigate the effect of the force majeure event is on the party seeking to enforce the force majeure clause. Even in the absence of an express obligation, for the purpose of obtaining relief, the party will be required to show that it could not mitigate the effects of the force majeure event, in order to demonstrate that the force majeure event obstructed the party from performing its obligations under the contract. The standard of care required however, would vary from case tocase.

Remedies upon invoking force majeure and consequences

Primarily, what is specifically agreed between the parties to a contract is the remedy that follows in case of claim of relief under force majeure. In some cases, it may be termination of contract upon occurrence of the force majeure event while in others, the contract may be suspended till the force majeure event ceases to prevent performance of the contract. Further, some contracts may allow for only certain obligations under the contract to be suspended and not the entire contract.

Analysis of judicial precedents

The general rule to note on enforceability of force majeure is that the courts have no power to absolve a party from the performance of its part of the contract only because its performance has become onerous on account of an unforeseen change or circumstance. Both Sections 32 and 56 of the Act highlight the law on contractual impossibility in India.

In its landmark decision of Satyabrata v. Mugneeram [1954 SCR 310], the Supreme Court discussed various theories pertaining to the doctrine of frustration and held that the premise upon which the doctrine is based is that of the impossibility of performance of the contract. The Supreme Court observed that Section 56 of the Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties derogating from the general idea of party autonomy which is a dominant feature of contracts.

Similarly, in the matter of Energy Watchdog and Others v. Central Electricity Regulatory Commission and Others [2017 (4) SCALE 580], relating to the interpretation and application of express force majeure clauses in certain Power Purchase Agreements (“PPA”), the Supreme Court examined whether the appellant could take recourse to the express force majeure clauses in the PPAs upon the occurrence of an event that partly prevented or hindered the performance of obligations under the PPAs. The Supreme Court observed that force majeure clauses are to be narrowly construed, and that a mere price rise rendering the contract more expensive to perform would not constitute a ‘hindrance’.

Relief in the absence of force majeure clause in contracts

Where contracts do not contain a force majeure clause, relief under Section 56 of the Act can be claimed under the ‘doctrine of frustration’. Put differently, where contracts do contain a force majeure clause, relief under Section 56 of the Act cannot be claimed.

Force majeure in the light of COVID-19

In the present circumstances, parties to private contracts that have epidemics/ pandemic covered within ‘force majeure’ related provisions/ clauses would be able to seek suspension in performance of their obligations thereunder.

In a related context, the Ministry of Finance, Government of India, has by an Office Memorandum clarified that disruption of supply chains due to the spread of COVID-19 in China or any other country should be considered as a natural calamity and force majeure clauses in contracts entered into by/ with government departments for supply of goods and services may consequentially be invoked, wherever considered appropriate, by following due procedure.

Vaish Associates Advocates View:

In the backdrop of COVID-19 and its disruptive effect on trade and commerce, it would be prudent for businesses to analyse their contracts to determine whether force majeure related provisions, where expressly provided, can be invoked (by themselves or their counter-parties) and be legally sustainable.

Further, other contractual provisions relating to material adverse change, limitation of liability, dispute resolution and termination may also be revisited to chalk out effective legal strategies in the event of litigation arising from parties seeking to suspend their contracts by invoking force majeure.

Having said that, parties cannot simply claim relief under force majeure provisions due to the COVID-19 outbreak and the consequent government lockdown. In such a scenario, one would have to prove that the discharge of obligations under such contract was not just onerous or inconvenient, but also impossible to perform. Further, in respect of contracts entered into during the continuation of COVID-19, the parties should note that a plea of suspension would not be sustainable on account of the foreseeable risk attached to such contracts, which the parties should have been well aware of at the time of its execution.

For more information please write to Mr. Bomi Daruwala at [email protected]