Sec 34 Petition Is Not Non-Est, Even If Award Is Not Filed In A Separate Folder: Delhi High Court

The bench of Justice Navin Chawla remarked that a more liberal approach must be adopted by the Court while considering whether the filing should be treated as ‘non-est.’

The petitioner/ award debtor, Ambrosia Corner House Pvt Ltd, filed a petition under Section 34 of the A&C Act before the Delhi High Court challenging the arbitral award passed by the Sole Arbitrator in favour of the respondent, Hangro S Foods.

The respondent, Hangro S Foods, raised a preliminary objection disputing the maintainability of the petition on the ground that the same was filed beyond the limitation period prescribed in Section 34(3) of the A&C Act. The respondent added that the petition was filed beyond the maximum period of 30 days that can be condoned by the Court under the proviso to Section 34 (3).

Section 34 (3) of the A&C Act provides that an application for setting aside an award must be made within 3 months from the date on which the party making the application had received the award. As per the proviso to Section 34 (3), if the Court is satisfied that the application was not filed within the 3 months period due to sufficient cause, it may entertain the application within a further period of 30 days.

The respondent, Hangro S Foods, argued that since certain defects were found in the filing of the Section 34 petition, which was filed by the petitioner within the limitation period, the same was returned by the Registry for re-filing. The petitioner had, thereafter, re-filled the petition after removing the defects.

The respondent averred that the initial filing was non-est since it did not contain a copy of the Award or the documents in support of the grounds for challenging the Award. Further, the affidavit in support of the petition was not attested, it submitted.

It contended that the date the petition was re-filled must be considered as the date of first filing. Since the same fell beyond the 30 days period that can be condoned by the Court, the petition was barred by limitation, it pleaded.

The petitioner, Ambrosia Corner House, argued before the Court that though the petition initially filed by it was not accompanied by a copy of the Arbitral Award, the same contained complete particulars and the grounds for challenging the Award. It submitted that the petition was signed on each page by the Director of the petitioner Company. The petition was also signed by its Counsel, whose Vakalatnama was also filed, the petitioner averred.

The petitioner added that only when the petition is filed without the signatures of either party or its authorized or appointed counsel, can the filing be considered as non-est. Merely because the affidavit accompanying the petition was not attested, it cannot be said that the filing was non-est, it argued. It pleaded that non-filing of the copy of the Arbitral Award and/or attested affidavit are curable defects.

Referring to the judgments of the Division Bench of the Delhi High Court in Oriental Insurance Co Ltd. v. Air India Ltd (2021) and Oil and Natural Gas Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) & M/s Megha Engineering & Infrastructure Limited (MEIL) (2023), the Court concluded that a more liberal approach is to be adopted by the Court while considering whether the filing should be treated as ‘non-est’.

“In Oriental Insurance Co Ltd. (Supra), it has been held that a filing can be considered as ‘non-est’ if it is filed without signatures of either the party or its authorized or appointed counsel. Though in Oil and Natural Gas Corporation Ltd. (Supra), it has further been held that the filing may be considered as ‘non-est’ where the application as filed is intelligible or is not accompanied with a copy of the Impugned Award or does not set out the material particulars, including the names of the parties and the grounds for impugning the Award, it has been clarified that the Court must assess the facts of each case while determining the issue of the filing being considered as ‘non-est’,” the Court said.

Referring to the facts of the case, the Court observed that the petition initially filed by the petitioner, was duly signed by the Director of the petitioner Company on all pages of the petition. The petition was also signed by the counsel for the petitioner, whose Vakalatnama was also filed with the petition.

The bench reckoned that the petitioner had failed to file the documents, including the copy of the Arbitral Award, in a separate e-folder, i.e., Part IV, as prescribed in the Delhi High Court (Original Side) Rules, 2018. The petitioner had, thereafter, re-filed the petition after removing the defects, and after including all the documents, including the Arbitral Award.

While holding that the first filing cannot be considered as non-est, the Court said, “At best, the petitioner committed an error in not filing the documents in a separate folder as prescribed in the Delhi High Court (Original Side) Rules, 2018.”

Ruling that the petition was filed within the period prescribed under Section 34(3) of the A&C Act, the Court rejected the objections raised by the respondent and listed the petition for hearing.

Case Title: Ambrosia Corner House Pvt Ltd versus Hangro S Foods

Citation: 2023 LiveLaw (Del) 124

Counsel for the Petitioner: Mr. Lalit Bhasin, Ms. Nina Gupta, Ms. Ananya Marwah, Mr. Ajay Pratap Singh, Advs.

Counsel for the Respondent: Mr. V.K. Garg, Sr. Adv. with Mr. Avneesh Garg, Mr. Parv Garg, Mr. Pawas Kulshrestha, Mr. K.S. Rekhi, Advs.

Click Here To Read/Download Order