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IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Indira Gandhi National Open University - Appellant
Versus
Sharat Das & Associates Pvt. Ltd. - Respondent
Original Miscellaneous Petition (Comm) No. 26 of 2019
Decided On : 04-06-2020
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 The petition was initially filed in a District Court, which lacked pecuniary jurisdiction, and was subsequently withdrawn.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 on 11.09.2018, within the extended period of 30 days under the proviso to Section 34(3) of the Act. However, the petition was returned by the Registry due to various defects. The petitioner re-filed the petition on 25.09.2018, but it was again returned due to defects. The petitioner filed the petition again on 30.10.2018, but it was beyond the 120-day limitation period under Section 34(3) of the Act. The petitioner filed an application for condonation of delay in re-filing the petition, as well as an application for 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 was filed one day after the prescribed period of three months and did not contain any application for condonation of delay. The subsequent re-filings in the Delhi High Court were also held to be non-est filings, as they were filed beyond the 120-day limitation period and contained vital defects. The court further held that the defects in the petition, such as the absence of a vakalatnama, statement of truth, and signatures of the petitioner, were not curable defects and could not be rectified 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 made the filing of a statement of truth mandatory, were applicable to petitions under Section 34 of the Act. The court dismissed the application for condonation of delay and the petition.
Issues: 1. Whether the initial filing of the petition in the District Court was a non-est filing? 2. Whether the subsequent re-filings in the Delhi High Court were non-est filings? 3. Whether the defects in the petition were curable defects? 4. Whether the amendments to the CPC under the Commercial Courts Act, 2015, were applicable to petitions under Section 34 of the Act?
Ratio Decidendi: 1. A petition filed under Section 34 of the Act must be filed within the prescribed period of three months, and any delay in filing must be condoned by the court. However, the court has no power to condone a delay beyond the maximum period of 120 days specified in Section 34(3) of the Act. 2. A petition that lacks vital documents, such as a vakalatnama, statement of truth, and signatures of the petitioner, is a non-est filing and cannot be treated as a proper filing for the purpose of stopping limitation. 3. Defects in a petition that are fundamental to the institution of the proceedings, such as the absence of a vakalatnama, statement of truth, and signatures of the petitioner, are not curable defects and cannot be rectified after the expiry of the limitation period. 4. The amendments to the CPC under the Commercial Courts Act, 2015, which made the filing of a statement of truth mandatory, are applicable to petitions under Section 34 of the Act.
Final Decision: The Delhi High Court dismissed the application for condonation of delay and the petition.
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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