Failure To Attach Impugned Arbitral Award Along With Section 34 Application Would Render Filing Non-Est: Delhi High Court

Submissions:

The counsel for the appellant made the following submissions:

• Section 34 of the A&C Act does not mandate the filing of the arbitral award. Wherever the legislature required the impugned order to be filed, it has been specifically mentioned in the provision itself. For example, Order XLI Rule 1 of the CPC and Section 423 of the BNSS. Furthermore, the DHC Rules do not prescribe the impugned award to be necessarily filed along with the Section 34 application. Therefore, filing of the impugned arbitral award cannot be treated as an essential condition.

The counsel for the respondent made the following submissions:

• This Court consistently held that non-fling of the impugned arbitral award would render the filing u/s 34 of the A&C Act as “non-est,” as the Court would not be in a position to appreciate a challenge.

The intervenor made the following submissions:

• The A&C Act was amended on numerous occasions, the requirement to file the impugned arbitral award was not mandated in Section 34 of the A&C Act. This implies that the non-filing of the impugned arbitral award would not render the filing u/s 34 of the A&C Act as “non-est.”

Analysis of the Court:

The bench observed that the arbitral award can be set aside by the Court u/s 34(2)(a) of the A&C Act, if the applicant establishes on the basis of the record of the arbitral tribunal that any of the grounds mentioned in the said section were violated during arbitral proceedings. An award can also be set aside u/s 34(2)(b) of the A&C Act, if the subject matter of the dispute was not capable of being settled by arbitration, or if the award was in conflict with the public policy. Furthermore, an award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court u/s 34(2A) of the A&C Act, if the award is vitiated by patent illegality appearing on the face of the award. It would be impossible to satisfy the conditions given u/s 34 of the A&C Act, if the arbitral award is not placed on record. The filing of the award under challenge along with the application u/s 34 of the Act, is not a mere procedural formality, but an essential requirement. Non-fling of the award would, therefore, make the application “non-est” in the eyes of the law.

The bench observed that this Court in SKS Power Generation (Chhattisgarh) Ltd.,(), SPML Infra Ltd. v. Graphite India Ltd., (2020), Executive Engineer National Highway Division v. S&P Infrastructure Developers (P) Ltd. (2022), ITDC v. Bajaj Electricals Ltd. (2023), NHAI v. KNR Constructions (2023), Delhi Development Authority v.Gammon Engineers & Contractors Private Limited (2024), has consistently taken the view of non-filing of the arbitral award making the petition “non-est”. Even in the judgments which led to the present reference, i.e. Joint Ventures of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil) () and in Planetcast Technologies Ltd. (2023), both the division benches were of the opinion that the filing of the impugned arbitral award is not an empty procedural requirements, and is quintessential.

The bench further observed that juxtaposing Order XLI Rule 1 of the CPC and Section 423 of the BNSS to Section 34 of the A&C Act, with respect to provisions mandating the direct filing of a copy of the impugned decree/order along with the appeal does not hold water. The A&C Act being a complete code in itself and drawing such implications form other statutes may not be appropriate. The bench thereby held that the filing of the copy of the impugned arbitral award, is a mandatory requirements for an application u/s 34 of the A&C Act. Non-fling of the award would render such applications “non-est” in the eyes of law, thereby, not stopping the period of limitation from running.