Section 34 Arbitration Petition Filed In Anticipation Of Approval By Authority Not Valid : Delhi High Court

The bench of Justice Navin Chawla was dealing with a petition by National Highways Authority of India (NHAI) challenging an arbitration award passed against it, however, admittedly the petition was filed by its counsel in anticipation of its final approval. Moreover, the petition was not accompanied by a copy of the award and the date of the impugned award was also wrongly mentioned at certain places.

The Court held that ordinarily a petition carrying the signatures of the party, or its authorised representatives is deemed to be a valid filing, however, at the same time a wholistic view of the petition is to be taken into account to determine its validity. Accordingly, it held that a petition which is filed in anticipation of the final approval and without the copy of the award, vakalatnama and with several other defects regarding the statement of truth is a non-est filing.

Facts

The petitioner had originally filed the petition challenging the award dated 26.05.2019 on 24.08.2018, however, the petition was hopelessly inadequate, and the registry returned the petition with several defects.

Few of the defects included were that the petition was not maintainable as per the pecuniary jurisdiction of the High Court, the filing was done without a copy of the impugned award, date of the award was not correct, it was filed without the vakalatnama and with several other blanks in the statement of truth.

Though the petitioner claimed to have refiled the petition on 25.09.2018 after removing the said defects, however, on perusal of the report of the registry, it was revealed that no such filing was done on the aforementioned date.

Moreover, the petitioner, in its additional affidavit, admitted that the petition was filed in a rush as the counsel was instructed only few days prior to the last date of limitation and the filing was done in anticipation of the final approval by the petitioner (competent authority in NHAI).

Objections to the maintainability of the petition

The respondent objected to the maintainability of the petition on the following grounds:

• The original filing was hopelessly inadequate as it was done without the final approval of the competent authority, without the copy of the impugned award, the date of the award was wrongly mentioned, without the vakalatnama and there were several other defects in the statement of truth in support of the petition, thus, it was a non-est filing.
• The re-filing was done much after the expiry of the limitation period provided under Section 34(3) of the A&C Act, therefore, the petition is barred by limitation and not maintainable.

Analysis by the Court

The Court had directed the registry to retrieve the filing record, accordingly, it submitted its Log Report. On perusal of the said report, the Court found that although the initial filing was within the period of limitation, however, it was returned on account of several defects. The Court also observed that it was no re-filed on 25.09.2018 as contended by the counsel for the petitioner but only after the expiry of the period of limitation on 28.11.2018.

Accordingly, the Court examined the validity of the initial filing. It observed that there were several defects in the initial filing and the nature of those defects would be relevant to determine its validity.

The Court relied on the judgment of the Division Bench in ONGC v. JV SREE, 2023/DHC/000123 wherein the Court observed that when a petition suffers from multitude of defects, the court should consider the cumulative effect of all those defects on the filing. It held that the Court while examining the validity of a filing must ascertain the question such as whether the application, as filed, is intelligible, its filing has been authorised; it is accompanied by an award; and the contents set out the material particulars including the names of the parties and the grounds for impugning the award.

It further relied on its judgment in Brahamaputra Cracker v. Rajshekhar Construction, 2023/DHC/000642 wherein it observed that a petition filed without the impugned award cannot constitute to be a valid filing. Moreover, the Court had deprecated the practice of filing hopelessly inadequate petitions without the material documents merely to stall the limitation period.

Placing reliance on these cases, the Court held that held that ordinarily a petition carrying the signatures of the party, or its authorised representatives is deemed to be a valid filing, however, at the same time a wholistic of the petition is to be taken into account to determine its validity. Therefore, it held that a petition which is filed in anticipation of the final approval and without the copy of the award, vakalatnama and with several other defects regarding the statement of truth is a non-est filing.

Accordingly, the Court rejected the petition having been filed beyond the period of limitation.

Case Title: NHAI v. Patel-KNR (JV) , O.M.P.(COMM) 416 of 2018

Citation: 2023 LiveLaw (Del) 216

Date: 23.02.2023

Counsel of the Petitioner: Dr.Maurya V Chandra & Mr.Abhishek R. Shukla, Advs

Counsel for the Respondent: Dr.Swaroop George & Mr.Tanmay Cheema, Advs.

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