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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 04.07.2022

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O.M.P. (COMM) 400/2020 and IA Nos.3006/2020, 3008/2020

& 3009/2020

EXECUTIVE ENGINEER

NATIONAL HIGHWAY DIVISION

..... Petitioner

versus

S&P INFRASTRUCTURE

DEVELOPERS (P) LTD.

.... Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr. Udian Shamra, Mr. Manish Kumar, Ms.

Aarzoo Aneja & Mr. Jai Deep Khanna,

Advs.

For the Respondent

: Mr. M. Dutta & Mr. Pavan Kumar

Chaturvedi, Advs.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

The petitioner has filed the present petition under Section 34 of

the Arbitration and Conciliation Act, 1996 (hereafter the ‘A&C Act’)

impugning an arbitral award (hereafter the ‘impugned award’) dated

01.09.2019 delivered by the Arbitral Tribunal comprising of Mr B.D.

Joshi, former Engineer-in-Chief, Himachal Pradesh PWD, Mr Kamlesh

Kumar, former Additional Director General, Ministry of Road

Transport & Highways, Government of India and Mr. S.N. Das, former

2022:DHC:2374

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Director General (Road Development) and Special Secretary to the

Ministry of Road Transport & Highways, Government of India as the

Presiding Arbitrator (hereafter the ‘Arbitral Tribunal’).

2.

The respondent has opposed the present petition on the ground

that it is barred by limitation. According to it, the application filed by

the petitioner (I.A. No.3009/2020) seeking condonation of delay of

forty-four days in filing the petition is liable to be rejected as this Court

has no jurisdiction to condone the delay beyond the period of thirty days

after the expiry of three months. Mr. Dutta, learned counsel for the

respondent

submits

that

the

petitioner’s

application

(I.A.

No.3008/2020) seeking condonation of delay in re-filing the petition, is

also liable to be dismissed. He submits that the petition, as initially filed

on 13.01.2020, was non-est as it was not accompanied by the Arbitral

Award; it was not signed; and the vakalatnama was defective. In

addition, the petitioner had not filed any documents along with the

petition. It has also not filed hard-copy of the petition as required. He

referred to the decision of a Coordinate Bench of this Court in Union

of India vs. Bharat Biotech International Ltd.: 2020 SCC online Del

483 in support of his contention that such a filing was liable to be

considered as non-est.

3.

The impugned award was rendered on 01.09.2019. Thus, three

months’ period for filing the petition expired on 01.12.2019. The

petition was filed for the first time on 13.01.2020, which was beyond

the period of thirty days after expiry of three months from the date of

the impugned award.

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4.

Undisputedly, the delay beyond thirty days after expiry of three

months as provided under Section 34(3) of the A&C Act, cannot be

condoned. However, the petitioner claims that it had received the

impugned award on 16.09.2019 and therefore, the petition was filed

within the period of thirty days after expiry of the period of three months

and the said delay can be condoned.

5.

There is considerable controversy on the question whether the

petitioner had received the impugned award on 16.09.2019 as claimed.

Initially, it was contended before this Court that the award was received

by post, however, there is no material to establish that the same was

received on 16.09.2019. In the circumstances, on 21.08.2018, this Court

issued an order directing the petitioner to file an affidavit as to the

manner in which the award was received and the date on which it was

received.

6.

In compliance with the said order, the petitioner filed an affidavit

affirmed by the Executive Engineer, National Highway Division,

Bhagalpur stating that the impugned aw