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IN THE HIGH COURT OF DELHI AT NEW DELHI
Navin Chawla, J.
National Highways Authority of India – Appellant
Versus
Patel-KNR(JV) – Respondent
O.M.P. (COMM) 516 of 2018 & I.A. 17541 of 2018, 17544 of 2018, 4986 of 2019 & 4987 of 2019
Decided On : 23-02-2023
Section 34 - Arbitration and Conciliation Act, 1996 - The court dismissed the petition challenging the Arbitral Award dated 26.05.2018 limited to the extent of claim nos.1, 2, 3, 5, 6 and 7 thereof, as it was filed beyond the period of limitation. The filing made on 24.08.2018 was termed as a non-est filing due to various defects and lack of approval from the Competent Authority of the petitioner. The delay in filing of the petition on 28.11.2018 could not be condoned.
Fact of the Case:
The petition was filed under Section 34 of the Arbitration and Conciliation Act, 1996 challenging the Arbitral Award dated 26.05.2018 limited to the extent of claim nos.1, 2, 3, 5, 6 and 7 thereof. The respondent raised an objection on the maintainability of the petition, claiming that it was filed beyond the period of limitation as prescribed in Section 34(3) of the Act.
Finding of the Court:
The court found that the petition filed on 24.08.2018 was a non-est filing due to various defects and lack of approval from the Competent Authority of the petitioner. The delay in filing of the petition on 28.11.2018 could not be condoned.
Issues: The main issue was whether the petition challenging the Arbitral Award was filed within the period of limitation as prescribed in Section 34(3) of the Act.
Ratio Decidendi: The court applied the legal principles established in previous judgments to determine that the petition filed on 24.08.2018 was a non-est filing due to various defects and lack of approval from the Competent Authority of the petitioner. The delay in filing of the petition on 28.11.2018 could not be condoned.
Final Decision: The court dismissed the petition challenging the Arbitral Award dated 26.05.2018 limited to the extent of claim nos.1, 2, 3, 5, 6 and 7 thereof, as it was filed beyond the period of limitation. All pending applications were also disposed of.
JUDGMENT
Navin Chawla, J. (Oral)--This petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act') challenging the Arbitral Award dated 26.05.2018 limited to the extent of claim nos.1, 2, 3, 5, 6 and 7 thereof.
2. The learned counsel for the respondent has raised the objection on the maintainability of the present petition, claiming that the same has been filed beyond the period of limitation as prescribed in Section 34(3) of the Act. He submits that though the petition was originally filed on 24.08.2018, the same was a non-est filing. He submits that, thereafter, the petition was re-filed on 28.11.2018, that is, beyond the period of limitation as prescribed under Section 34(3) of the Act and even beyond the maximum condonable period of delay as provided in the Proviso to Section 34(3) of the Act.
3. The learned counsel for the petitioner, in the hearing held on 24.01.2023, had submitted that the petition was re-filed by the petitioner on 25.09.2018, which would be within the maximum period by which delay can be condoned by this Court. He submits that, therefore, even if the filing made on 24.08.2018 is treated to be non-est, considering the filing made on 25.09.2018 and for reasons explained, this Court could condone the delay in filing of the petition.
4. On the submission of the learned counsel for the petitioner, the following order was passed on 24.01.2023:
"1. A controversy has arisen as to whether this petition was re-filed by the petitioner on 25.09.2018, as has been claimed by the petitioner in application, being LA. 17544/2018.
2. The learned counsel for the respondent has handed over a copy of the Log Report of the filing of the present petition, which indicates that though the petition was filed on 24.08.2018, on it being returned under objections, it was re-filed only on 28.11.2018. The Log Report, therefore, does not indicate any re-filing done on 25.09.2018.
3. The learned counsel for the respondent, placing reliance on the Log Report, further states that the filing done on 24.08.2018 appears to be not one challenging the Impugned Award as the date of the Award mentioned in the Log Report is 27.12.2017 whereas the Impugned Award is dated 26.05.2018. He further submits that the petitioner in the Additional Affidavit dated 29.01.2019 itself has admitted as under:
"4. That since the matter was filed in a rush as the counsel had received instruction only few days prior to the last date of limitation, the filing was done in anticipation of approval from NHAI and usually the final version is sent for records to NHAI, therefore, no record of the said version is available with NHAI."
4. He submits that, therefore, the filing of 24.08.2018 clearly was non-est as it was not done with the approval of the petitioner.
5. The learned counsel for the petitioner prays for time to re-affirm the fact of re-filing the petition on 25.09.2018.
6. In the meantime, the Registry is also directed to, if possible, retrieve the petition that was filed on 24.08.2018 under Diary No.238062/18 and attach the same on record of the present petition. The Registry shall also reconfirm if this petition was re-filed on 25.09.2018.
7. List on 22nd February, 2023."
5. The Registry has now filed its report dated 04.02.2023, wherein it is stated that as per the Log Report, the petition was not re-filed on 25.09.2018 as claimed by the petitioner.
6. Today, the learned counsel for the petitioner admits that the petition was not re-filed on 25.09.2018. He submits that an attempt was made to re-file the petition on 25.09.2018, however, due to a change in the filing procedures that had been notified just prior to the said date, the Registry did not accept the filing in the form that was sought to be made.
7. Be that as it may, the fact remains that on 25.09.2018 there was no re-filing of the petition done by the petitioner. The fact also remains that the re-filing of the petition was done only o
The main legal point established in the judgment is that a petition challenging an Arbitral Award must be filed within the period of limitation as prescribed in Section 34(3) of the Arbitration and C....
The failure to file essential documents alongside a Section 34 application renders the filing 'non-est', thus failing to stop the limitation period, leading to dismissal of the petition.
An application to set aside an arbitral award must adhere strictly to procedural requirements, failing which it may be deemed non-est, thereby barring the challenge by limitation.
The Court emphasized the importance of diligence in addressing procedural defects and allowed the condonation of delay based on the petitioner's consistent efforts to rectify the objections.
The court ruled that statutory timelines under the Arbitration and Conciliation Act are strict and failure to properly file within these limits results in dismissal as barred by limitation.
Scanned signed copy of the award/order of the Arbitral Tribunal to the parties would be a valid delivery as envisaged under Section 31(5) of the Arbitration and Conciliation Act, 1996.
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