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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, J.
Prakash Jarwal - Appellant
Versus
State - Respondent
Bail Application No. 1348 of 2020
Decided On : 24-06-2020
ARBITRATION - CONDONATION OF DELAY - SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT, 1996 - APPLICABILITY OF SECTION 14 OF THE LIMITATION ACT - NON-EST FILING - CURABLE DEFECTS - AMENDMENTS TO CPC UNDER COMMERCIAL COURTS ACT - APPLICABILITY TO SECTION 34 PETITIONS.
Fact of the Case:
Petitioner filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act) challenging an arbitral award. The petition was initially filed in a District Court, which lacked pecuniary jurisdiction, and was subsequently withdrawn. The petitioner then filed the petition in the Delhi High Court within the extended period of 30 days under the proviso to Section 34(3) of the Act. However, the petition was found to be defective and was returned by the Registry. The petitioner re-filed the petition several times, but each time it was returned due to defects. The petitioner filed applications seeking condonation of delay in filing and re-filing the petition, as well as exclusion of time under Section 14 of the Limitation Act.
Finding of the Court:
The Delhi High Court held that the initial filing of the petition in the District Court was a non-est filing, as it lacked vital documents and did not meet the parameters of a valid filing. The subsequent re-filings were also found to be non-est filings, as they were done beyond the limitation period and did not cure the defects in the initial filing. The court further held that the defects in the petition, such as the non-filing of the Vakalatnama and Statement of Truth, were not curable defects that could be remedied after the expiry of the limitation period. The court also held that the amendments to the Code of Civil Procedure (CPC) under the Commercial Courts Act, 2015, which require pleadings to be verified by an affidavit in the form prescribed in the Appendix to the Schedule, are applicable to petitions under Section 34 of the Act.
Issues: 1. Whether the initial filing of the petition in the District Court was a non-est filing? 2. Whether the subsequent re-filings of the petition were valid filings? 3. Whether the defects in the petition, such as the non-filing of the Vakalatnama and Statement of Truth, were curable defects? 4. Whether the amendments to the CPC under the Commercial Courts Act, 2015, are applicable to petitions under Section 34 of the Act?
Ratio Decidendi: 1. A petition under Section 34 of the Act must not be a mere "bunch of papers" but must fulfil vital parameters, such as the filing of a Vakalatnama, Statement of Truth, and signing of the petition, to qualify as a valid filing. 2. If the petition filed within the limitation period or the extended period of 30 days is a non-est filing, limitation would not stop and on the date the defects are cured and it is filed, it would be treated as a "fresh" filing. 3. Defects in a petition, such as the non-filing of the Vakalatnama and Statement of Truth, which are vital for a valid filing, cannot be cured after the expiry of the limitation period. 4. The amendments to the CPC under the Commercial Courts Act, 2015, which require pleadings to be verified by an affidavit in the form prescribed in the Appendix to the Schedule, are applicable to petitions under Section 34 of the Act.
Final Decision: The Delhi High Court dismissed the petition, holding that the initial filing was a non-est filing and the subsequent re-filings were also non-est filings. The court also dismissed the applications seeking condonation of delay in filing and re-filing the petition, as well as exclusion of time under Section 14 of the Limitation Act.
JUDGMENT
Jyoti Singh, J. - IA No. 719/2019 (u/Section 14 of the Limitation Act) & IA No. 720/2019 (Condonation of delay in refiling of the petition)
1. Present petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 challenging an Award dated 25.04.2018 passed by the Arbitral Tribunal.
2. I.A. 719/2019 has been filed for excluding the time of 30 days in filing the present petition, under Section 14 of the Limitation Act. It is averred in the application that the petition was initially filed challenging the Award before the District Court, Saket on 24.07.2018 and was within the statutory period of limitation. However, on account of lack of pecuniary jurisdiction, the same was dismissed as withdrawn vide order dated 28.08.2018 passed in Arb. No. 233/2018 with liberty to approach the appropriate Forum. The certified copy of the order dated 28.08.2018 was made available on 31.08.2018 and the present petition was filed on 11.09.2018. Petitioner had approached the District Court diligently and thus the period of 30 days spent in prosecuting the case in the said Court, should be excluded for granting the benefit in condonation of delay.
3. I.A. 720/2019 has been filed seeking condonation of delay of 91 days in re-filing the petition and the reasons stated therein for the delay in re-filing is that there was "bereavement in the family" and the petition could not be re-filed on time.
Case of the Petitioner :
4. Petition under Section 34 of the Act was filed on 24.07.2018 (on 89th day) before the learned District & Sessions Judge, Saket Court, New Delhi. On 06.08.2018, Court issued notice on the petition as well as the stay application. Petition was filed within a period of three months provided under Section 34 (3) of the Act and was complete in all respects and was pursued diligently by the Petitioner, after filing.
5. Petition was withdrawn on 28.08.2018 on the ground of lack of pecuniary jurisdiction, with liberty to file a fresh petition in the appropriate Court. On 31.08.2018, Petitioner received the certified copy of the order dated 28.08.2018. On 11.09.2018, present petition was filed. Defects were raised by the Registry on 14.09.2018, after scrutiny. Petitioner has brought out the following aspects with regard to the First Filing :
(a). Petition, as initially filed, was complete in all substantial aspects (identical to the one filed in Saket Court).
(b). All relevant pages of the Petition were signed and stamped including index, notice of motion and memo of parties.
(c). Affidavit in support of the petition was duly signed and verified, though not attested.
(d). All applications signed and verified, such as stay of execution, exemption from filing the entire record and for exclusion of time under Section 14.
(e). Affidavits supporting each application signed, though not attested.
(f). Affidavit in compliance of Section 34 (5) of the Act filed, though not attested (service of complete set through Speed Post).
(g). All relevant annexures filed.
6. Petition was re-filed on 25.09.2018 (Second Filing). This filing was within the extended period of 30 days under Proviso to Section 34(3) of the Act and also within 30 days available under the Delhi High Court Rules, for curing the defects.
7. With regard to the Second Filing, Petitioner has brought out the following aspects :-
(a) Pleadings signed on all pages.
(b). Statement of Truth filed, signed and verified, but not attested.
(c). Pecuniary jurisdiction mentioned in the main body of the petition which was the only change made in the petition from the one filed in the District Court.
(d). Annexures filed were certified as true copies.
(e). Vakalatnama signed and identified.
(f). Court fee paid.
8. Defects were raised by the Registry on 26.09.2018. Petition was re-filed on 30.10.2018. Petition was checked and defects were notified on 31.10.2018. Petition was again re-filed on 13.11.2018.
9. With respect to the defects notified on 14.11.2018, Petitioner h
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