Non Filing Of Arbitral Award Along Section 34 Is A Fatal Defect, Makes Filing Non-Est: Delhi High Court Dismisses Section 34 Petition

The bench held that the absence of a copy of the award renders it impossible to appreciate the grounds for seeking to set aside the award.

Brief Facts:

The Petitioner approached the Delhi High Court (“High Court”) and filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), challenging an arbitral award, which resolved disputes arising from a contract.

Accompanying the petition were applications for the condonation of a 19-day delay in filing the petition and a 135-day delay in refiling the petition.

The deadline for filing the petition within the limitation period expired on 12.05.2022, with the maximum condonable delay period concluding on 12.06.2022. The Petitioner contended that, due to the court being in vacation until 04.07.2022, the maximum condonable period extends to the latter date.

However, the Respondent, raised concerns about the validity of the original filing, questioning whether it was valid or non-est. The High Court noted that the filing on 29.06.2022 comprised only the petition and the Statement of Truth, totaling 37 pages. In contrast, the record filed in the High Court contained 1142 pages, with marked defects related to bookmarking, court fees, affidavits, the award, and documents. The Petitioner acknowledged that the filing on 29.06.2022 was incomplete, consisting only of the petition and Statement of Truth.

Observations by the High Court:

The High Court referred to the decision of its Division Bench, particularly the case of Oil & Natural Gas Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) & Ors. [FAO(OS)(COMM) 324/2019, dated 09.01.2023]. In this case, it was explicitly stated that non-filing of the award constitutes a fatal defect. The High Court emphasized the necessity for an application under Section 34 of the Arbitration Act, to be accompanied by a copy of the challenged award, without which the grounds for setting aside the award cannot be appreciated.

The High Court held that objections under Section 34 must be based on justiciable grounds prescribed under Section 34(2), and these grounds can only be ascertained by referring to the award made by the arbitrator. The absence of the award makes the objections incomprehensible, rendering the filing as non-est.

The High Court highlighted the significance of the award by highlighting references to an "interim award" in the petition, despite the impugned award being a final award. While the Petitioner asserted these references were inadvertent typographical errors, the High Court emphasized that the validity of such grounds could not have been appropriately assessed without a copy of the award.

Consequently, the Petition was dismissed.

Case Title: Union Of India Vs NCC Limited

Citation: 2024 LiveLaw (Del) 262

Case Number: O.M.P. (COMM) 66/2023 & I.As. 2782/2023, 2784-88/2023.

Advocate for the Petitioner: Mr. Vineet Dhanda, CGSC, Ms. Gurleen Kaur, Mr. Archit Aggarwal.

Advocate for the Respondent: Dr. Amit George, Mr. Piyo Harold Jaimon, Mr. Rayadurgam Bharat, Mr. Amol Acharya, Mr. Rishabh Dheer, Mr. Arkaneil Bhaumik, Mr. Adhishwar Suri.

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