Formal defects in the initial filing do not render it non-est, and consistent steps to remove defects justify the condonation of delay in re-filing.

JUDGMENT

I.A. No.2572/2021

1. This is an application under Section 5 of the Limitation Act, 1963 has been filed on behalf of the petitioner seeking condonation of one (1) day delay in re-filing the petition.

O.M.P. (COMM.) No. 70/2021

2. It is submitted in the application that the petitioner has filed the petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "A&C Act, 1996") against the impugned order dated 17.10.2020 on 14.01.2021 vide Diary No. 83064/2021, which is within 90 days from the date of receiving the Award on 17.10.2021.

3. Certain objections were raised by the Registry, which were removed and the petition was re-filed. Subsequently, certain other objections were taken, which were removed and the petition was finally accepted. However, there was a delay of one (1) day in re-filing the petitioner. Hence, a prayer is made that the same may be condoned.

4. Submissions heard.

5. Section 34 (3) of the A & C Act, 1996 prescribes the limitation for filing the objections against the Arbitral Awards and reads as under:

"(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter"

6. In Ashok Kumar Parmar Vs. D.C. Sankhla, 1995 RLR 85, the Single Judge of this Court held that the emphasis should be on the nature of defects found in the plaint. If the defects are of such character that would render a plaint a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not affecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit. The Division Bench upheld this view in D.C. Sankhla Vs. Ashok Kumar, 1995(1) AD (New Delhi) 753

7. In Executive Engineers Vs. Shree Ram Construction and Company, it was held that the conduct of the party must pass the rigorous test of diligence as the purpose of prescribing the definite and unelastic period of limitation is rendered futile. However, it was also said that each case needs to be examined on its own facts and merits to ascertain whether or not to condone the delay in re-filing the objection petition when the initial filing is within the period of limitation. If the delay in re-filing is substantially beyond the period of three months and 30 days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in re-filing.

8. In DDA Vs. Durga Construction Company, 2013 SCC OnLine Del 4451, Division Bench of this Court explained the distinction between nonest filing and re-filing. It was observed that the defects may only be perfunctory and not affecting the substance of the application. For example, an application may be complete in all respect, however certain documents may not be clear and may require to be retyped. In such a case where the initial filing is within the period of 120 days as specified in Section 34 (3) of the A&C Act, but the re-filing is beyond this period it cannot be said that the Court lacks jurisdiction to condone the delay in re-filing. Section 34 (3) of the A&C Act only prescribes limitation with regard to filing an application to challenge the Award and not for re-filing. The question whether the court should in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whe