Non-Attestation Of Affidavit With Section 34 Application; A Procedural Irregularity; Application Valid: Delhi High Court

The petitioner- Raj Kumar Gupta, filed an application under Section 34 of the A&C Act before the Delhi High Court, challenging the arbitral award rendered against it. After certain objections were raised by the Registry to the petition filed by the petitioner, the petition was refiled after a delay of 57 days beyond the limitation period of three months and 30 days, as provided under Section 34(3).

The petitioner filed an application under Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking condonation of delay in re-filing the petition.

Referring to Section 34(3) of the A&C Act, the bench noted that the statutory period of limitation for challenging an Arbitral Award is three months from the date of receipt of award. Further, as per the proviso to Section 34(3), an extended period of 30 days can be granted by the Court, if sufficient cause is shown by the petitioner.

It further observed that in view of the express language of Section 34 (3), the time limit prescribed under Section 34 is not extendable by the Court under Section 5 of the Limitation Act, 1963.

The Court noted that the Division Bench of the Delhi High Court in M/s. Competent Placement Services versus Delhi Transport Corporation (2011) had ruled that the rigors for condonation of delay in re-filing are not as strict as for condonation of delay in filing the petition. However, it does not mean that a party can be permitted an indefinite and unexplainable period for re-filing the petition, the Division Bench had held.

The Court further held that where the petition is found to have inherent defects, such filing is non-est and in such cases, the date of re-filing has to be considered as the reckoning date for the purpose of limitation. However, where the defects are only formal in nature, the date of first filing is to be considered for the purpose of limitation.

The Court ruled that a petition filed under Section 34 of the A&C Act must fulfil certain basic parameters in order to be termed as a “properly filed petition”. These are: (a) Each page as well as the last page of the petition should be signed by the party and the Advocate; (b) The Vakalatnama should be signed by the party and the Advocate, and the signatures of the party must be identified by the Advocate; (c) Statement of Truth/ Affidavit should be signed by the party and attested by the Oath Commissioner.

Referring to the facts of the case, the Court noted that the first filing was made on 29^th June, 2019, which was within the period prescribed under Section 34 of the A&C Act. The objection taken by the Registry to the first filing was that the Statement of Truth and the Affidavit were not attested, the Court observed.

The bench reckoned that Section 26 of CPC, which deals with institution of suits, prescribes that in every plaint, the facts shall be proved by an affidavit.

“The provision applicable for institution of plaint are mutatis mutandis applicable to the objections filed under Section 34, which is the nature of a petition”, the Court ruled.

Further, it observed that Section 15A of the Commercial Courts Act, 2015 requires that a pleading must be mandatorily supported by a duly attested affidavit, failing which the said pleading shall not be permitted to be read as evidence. Any pleading not verified by a statement of truth/ affidavit may be struck out by the Court, it noted.

The Court took note that the Statement of Truth and Affidavit got verified and attested on 27^th July, 2019 i.e., beyond the additional 30 days permitted under the proviso to Section 34(3) of the A&C Act.

The Court referred to the decision of the Apex Court in Vidyawati Gupta versus Bhakti Hari Nayak (2006), where the Supreme Court had ruled that the amendments effected to Section 26 of CPC, Order IV and Order VI Rule 15 are procedural and directory in nature. Thus, their non-compliance would not automatically render the plaint non-est.

Holding that non-attestation of the accompanying affidavit was a mere irregularity that was capable of being cured, the Court ruled that it cannot be treated as fatal to the institution of the suit.

“In light of the above discussions, the objection of the non-attestation of the affidavit cannot make the first filing as non-est. It only suffered a defect which was curable and was in fact cured at the time of first re-filing on 31.08.2019”, the Court said.

The Court thus held that the first filing was valid and was not non-est and thus, there was no delay in filing the Objections under Section 34 of the A&C Act.

The Court thus allowed the application, condoning the delay of 52 days in re-filing.

Case Title: Raj Kumar Gupta versus M/ S Narang Constructions & Financiers Pvt Ltd

Citation: 2023 LiveLaw (Del) 13 

Counsel for Petitioner: Mr. Mukesh Goel, Advocate

Counsel for Respondent: Mr. Avinash Trivedi, Ms. Ritika Trivedi, Mr. Anurag Kaushik, Advocates

Click Here To Read/DownloadOrder