OBJECTION U/s 34: A & C Act: what constituted non est filing
What shall be a non est filing
in objection to arbitral award In the midst of several cases relating to
objection under section 34 of Arbitration & Conciliation Act 1996 thereby,
raising objection under section 34 of the said Act, against the publication of
award, it was being noticed that several vital documents, including arbitral
awards were not being filed along with objection, with a view to avoid the
restrictions imposed by law of limitation as contained in section 34(3) of the
A& C Act and is further reinforced by the honb’ble Supreme Court in Union
of India v. Popular Construction Company: (2001) 8 SCC 470 and it is held that prescribed period of limitation
for filing objection u/s 34 of the A & C Act shall be Three (3) months and
One (1) month additional period could be granted if plausible reason existed,
but it cannot be extended beyond four (4) months. In this back drop, the non est filing of objection to award has
attained significance. No doubt, in several cases, it is observed that the vital documents used to be filed later on by
the petitioner with view to meet the deadline of limitation. In view of such cases being on rise and
further owing to several conflicting judgments by benches , the matter is now
finally settled by the full bench of Delhi High Court in a matter captioned as Pragati
Construction Consultants Vs Union Of India and bearing no. FAO (OS) (COMM) 70/2024 & CM APPL. 21475/2024.
To buttress it further,
it is to be pointed out that s Full Bench had been
constituted to answer the reference made by the learned Single Judge of Delhi
High Court vide his Order dated 21.03.2024 (hereinafter referred to as “Order
of the Reference‟) passed in OMP(COMM)
20/2024 titled Bharat Broadband Network Limited v. Sterlite Technologies Limited.
The relevant extracts from the Order of the Reference, indicating question of
law to be determined by the Full Bench, is as under:
After the
enactment of Commercial Courts Act (CCA) 2015, there are several pre-requisites
that has to be met before filing a suit or petition falling within the purview
of the said CCA and apart from other pre-requisites, statement of truth
is also required to be filed along with the petition. It is significant to
point out that two Division Benches judgment, also came to different
conclusions as to whether the lack of Statement of Truth constitutes a fatal
defect in the original filing. The first of these decisions is ONGC
v. Sai Rama Engineering Enterprises [2023 SCC OnLine Del 63]. And the
paragraph no. 30 to 35 thereof read as
follows:
"30. We concur with the learned Single Judge that certain
defects are curable and do not render the application as non est. However,
the nature of certain defects is such that it would not be apposite to consider
the defective application as an application under Section 34 of the A&C
Act, to set aside an arbitral award. Undisputedly, every improper filling is
not non est.
31. We are unable to concur with the view that the minimum
threshold requirement for an application to be considered as an application
under Section 34 of the A&C Act is that, each page of the application
should be signed by the party, as well as the advocate: the vakalatnama should
be signed by the party and the advocate; and it must be accompanied by a
statement of truth. And, in the absence of any of these requirements, the
filing must be considered as non est. It is essential to understand that for an
application to be considered as non est, the Court must come to the conclusion
that it cannot be considered as an application for setting aside the arbitral
award.
32. It is material to note that Section 34 of the A&C Act does
not specify any particular procedure for filing an application to set aside the
arbitral award. However, it does set out the grounds on which such an
application can be made. Thus, the first and foremost requirement for an
application under Section 34 of the A&C Act is that it should set out the
grounds on which the applicant seeks setting aside of the arbitral award. It is
also necessary that the application be accompanied by a copy of the award as
without a copy of the award, which is challenged, it would be impossible to appreciate
the grounds to set aside the award. In addition to the above, the application
must state the name of the parties and the bare facts in the context of
which the applicants seek setting aside of the arbitral award.
33. It is also necessary that the application be signed by the
party or its authorised representative. The affixing of signatures signify that
the applicant is making the application. In the absence of such signatures, it
would be difficult to accept that the application is moved by the applicant.
34. In addition to the above, other material requirements are such
as, the application is to be supported by an affidavit and a statement of truth
by virtue of Order XI, Section I of the Commercial Courts Act, 2015. It is also
necessary that the filing be accompanied by a duly executed vakalatnama. This
would be necessary for an advocate to move the application before the court.
Although these requirements are material and necessary, we are unable to accept
that in absence of these requirements, the application is required to be
treated as non est. The application to set aside an award does not cease to be
an application merely because the applicant has not complied with certain
procedural requirements.
35. It is well settled that filing an affidavit in support of an
application is a procedural requirement. The statement of truth by way of an
affidavit is also a procedural matter. As stated above, it would be necessary
to comply with these procedural requirements. Failure to do so would render an
application under Section 34 of the A&C Act to he defective hut it would
not render it non est."
Per Contra in ONGC
V. Planetcast Technologies Ltd., [2023 SCC OnLine Del 8490], the Court
has held as follows:
"40. It has been
argued by the counsel for the appellant that procedural enactments ought not to
be considered in such a manner that it would prevent the Court from meeting the
ends of justice. The amendments effected in Commercial Courts Act, 2015 to
various provisions of CPC as applicable to the
commercial disputes have been geared to achieve such object but being
procedural in nature, they are directory in nature and non-compliance thereof
would not automatically render the plaint non-est. Reliance had been placed on Vidyawati Gupta V5. Bhakti Hari Nayak
(2006) 2 SCC 777, wherein the Supreme Court after noting the celebrated
decision of the Supreme Court in the case of Salem Advocate Bar Association vs. Union of
India (2003) I SCC 49, the effect of the
amendments introduced in the Code by the amending Act 46 of 1999 and 22 of
2002, reiterated the principle that rules or procedure are made to further the
cause of justice and not to obstruct the same.
41. Petitions under Section 34 of the Act,
1996 fall within the jurisdiction of the Commercial Division of the High Court,
making the Commercial Courts Act, 2015 applicable to
such petitions. The pre requisite of filing a Statement of Truth has been
emphasised in Order XI Rule 1 C.P.C. as amended
under Commercial Courts Act, 2015 which reads as
under:
*** (3) The plaint shall
contain a declaration on oath from the plaintiff that all documents in the
power, possession, control or custody of the plaintiff, pertaining to the facts
and circumstances of the proceedings initiated by him have been disclosed and
copies thereof annexed with the plaint, and that the plaintiff does not have
any other documents in its power, possession, control or custody.
Explanation.--A declaration
on oath under this sub-rule shall be contained in the Statement of Truth as set
out in the Appendix."
That in this regard, it is worthwhile
to note that Section I5A of the Commercial Courts Act, 2015 which provides for
the verification of pleadings presented to the commercial courts which reads as
under:
--I5A.
Verification of pleadings in a commercial dispute. -
(1) Notwithstanding
anything contained in Rule 15, every pleading in a commercial dispute shall be
verified by an affidavit in the manner and form prescribed in the Appendix to
this Schedule.
(2) An affidavit under
sub-rule (1) above shall be signed by the party or by one of the parties to the
proceedings, or by any other on behalf of such party or parties who is proved
to the satisfaction of the Court to be acquainted with the facts of the case
and who is duly authorised by such party or parties.
(3) Where a pleading is
amended, the amendments must be verified in the form and manner referred to in
sub-rule (1) unless the Court orders otherwise.
(4) Where a pleading is not
verified in the manner provided under sub-rule (1), the party shall not be
permitted to rely on such pleading as evidence or any of the matters set out
therein.
(5) The Court may strike
out a pleading which is not verified by a Statement of Truth, namely, the
affidavit set out in the Appendix to this Schedule."
Section
15A of C.P.C as amended under Commercial
Courts Act, therefore, requires that a pleading
has to be mandatorily supported by a duly attested affidavit by way of
verification failing which the said pleading shall not be permitted to be read
as evidence of any manner set out therein. It further provides that any
pleadings not verified by a Statement of Truth, namely, the affidavit may be
struck out by the Court.
It is, therefore, evident that the
affidavit by way of the Statement of Truth is mandatorily required to be filed
along with the petition in order to be a document worth considering under the
law.
The aforesaid question has been a
subject matter of several decisions It has been held that such a petition would
not qualify as a filing and the Court has discouraged litigants to file such
petitions in order to avoid the rigour of strict provision of limitation as
stipulated under Section
34(3) of the Act.
The pre-requisite of filing the
Statement of Truth has been reiterated in the case of Jay
Polvchem (India) Ltd & Ors. Vs. S.E. Investment Ltd. 2018
SCC OnLine Del 8848, where this Court while dealing with non-filing of
Statement of Truth, held that a Statement which is neither signed nor supported
by an affidavit cannot be considered as an application under Section
34 of the Act. The Petition thus
filed without the Statement of Truth is non-est.
Similarly, in Director-cum-Secretary,
Department of Social Welfare v. Saresh Security Services Pvt. Ltd., (2019 SCC OnLine Del 8503), the
petition was filed without a Statement of Truth. The question therefore was
whether such a petition could qualify as a filing in law?
Suffice is it to say, without the
Statement of Truth, the filing of the petitions under Section
34 of the Act, 1996 by the
petitioners becomes non-est and is
reduced to a sheer futile attempt to pause the limitation period from running
out. The appellant cannot claim the benefit of a non-est filing though made
within the period of limitation, when the proper filing of the petition was
only made after the expiry of the stipulated period of three months and thirty
days. "
The full bench noted
that. the judgment in Planetcast (Supra)
has noticed the earlier Judgment in Sal Rama (Supra), which has been referred to in paragraph 34,though, that
was in the context of filing of a copy of the award. It was further noted that there
was a clear conflict between the views taken by the two Division Benches. In
Sal Rama, the requirement of the statement of truth has been described as
"procedural" and capable of rectification, however, a similar
argument was taken before the Division Bench in Planetcast (para 40), but
rejected. It was further noted that the question of requirement of a valid
filing arises in several cases under Section
34 of the Act. The point with regard
to non-filing of the Statement of Truth is one which requires authoritative
clarification in view of the conflicting views taken by the Division Benches.
The full bench was thus
constituted as per the provision of Rule 2, Chapter II of the Delhi High Court
(Original Side) Rules, 2018. What is
evident though from a reading of the above that the ld single judge of Delhi High Court was of
the opinion that there is a conflict of view expressed by the two Division
Benches; one in Oil
and Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering
Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil),
2023 SCC OnLine Del 63, which had held that the non-filing of the Statement of
Truth under Order
VI Rule 15A of the Code of Civil Procedure,
1908 (in short, „CPC‟), as applicable to
the Commercial Courts Act, 2015 (in
short “CCA
Act‟),
will not make a petition filed under Section
34 of the Arbitration and
Conciliation Act, 1996 (in short, „A&C Act‟) as "non-est‖; and in Oil
and Natural Gas Corporation Ltd. v. Planetcast Technologies Ltd.,
2023 SCC OnLine Del 8490, which had held that a petition filed under Section 34
of the A&C Act without a Statement of Truth or with a Statement of Truth
which is neither signed nor supported by an affidavit, shall be
"non-est'.
Interestingly, while,
the above Reference was pending adjudication before the Full Bench, by an Order
dated 09.05.2024 passed by the Division Bench of the Delhi High Court in
FAO(OS)(COMM) 70/2024, titled Pragati
Construction Consultants v. Union of India,
the question whether non-filing of the Arbitral Award itself would render a
petition filed under Section 34 of the A&C Act as "non-est, was
referred also to the Full Bench, by observing as under:
―6. The leaned counsel for the
appellant submits that the filing as on 01.11.2023 was not non est. It was
complete in all respects except that it was not supported by a vakalatnama and
the impugned award.
7.
The learned counsel appearing for the appellant has referred to an earlier
decision of a Coordinate Bench of this Court in Oil and Natural Gas Corporation Ltd. v.
Joint Venture of Sai Rama Engineering Enterprises (Sree) & Meglia
Engineering & Infrastructure Limited (Meil):
2023 SCC OnLine Del 63 and has submitted that the question whether a filing is
non est must be considered by examining all defects cumulatively. It is also
pointed out that this Court had held that "/« order to consider the
question whether a filing is non est, the court must address the question
whether the application, as filed, is intelligible, its filing has been
authorised; it is accompanied by an award; and the contents set out the
material particulars including the names of the parties and the grounds for
impugning the award.'"
A decision of the Coordinate Bench of the Delhi High Court was
referred to captioned as Union of India v. Panacea Biotec Limited: 2023
SCC Online Del 8491 holding that non- filing of the award would render the
filing non est. It is also submitted that the rationale for the same is obvious
as the grounds urged in the application to set aside the award cannot be
examined in a meaningful manner if the application is not accompanied by the
arbitral award. It was also submitted that the entire object of reckoning the
period for filing the petition after receipt of the signed copy of the award
was to enable the parties seeking to challenge the same to make a meaningful
challenge. Hence, it was contended that it would not be in conformity with the
scheme of things that an application to set aside the award be then filed
without a copy of the same.
The full bench expressed some reservations as to the proposition
that non-filing of an award simplicitor
would render an application filed under Section 34 of, the A&C Act non est
as held by the learned Single Judge. The question whether a filing is non est
must be examined from the standpoint of whether it is an intelligible filing
and depends on the cumulative effect of the defects. The decision in Oil and
Natural Gas Corporation Ltd. (supra) did not hold that non-filing of an award
itself would render the filing as non est.
In Pragati Constructions (Supra), it is also noticed that although
the initial filing was only 111 pages and the filing on 22.12.2023 spanned over
2150 pages. However, the application as initially filed remained unaltered. The
date of the application as well as the affidavit affirming the same, was not
altered in any manner. It is apparent that the application was re-filed,
albeit, with further documents. The matter was thus heard by full bench to
examine the question whether a defect of non-filing the Statement
of Truth along with the application would be an incurable defect rendering
the plaint liable to be rejected.
The relevance of the reference
may be gauged from the fact that Section 34(3) of the A&C Act prescribes a
strict period of limitation for filing of a petition under Section 34 of the
A&C Act and also restricts the period of delay that can be condoned by the
Court.
Section 34(3) of the A&C Act reads
as under:
―34.
Application for setting aside arbitral award.
xxx (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.
Keeping in view the
above, in Delhi Development
Authority v. Durga Construction Co., 2013 SCC OnLine Del 4451, a Division
Bench of Delhi High Court, while holding that consideration and parameters to
be applied in cases of delay in re-filing are different from the cases of a
delay in filing of a petition under Section 34 of the A&C Act, further
emphasised that in certain cases where the petitions or applications filed by a
party under Section 34 of the A&C Act are so hopelessly inadequate and
insufficient, or they contain defects which are fundamental to the
consideration of the proceedings, then, in such cases, the filing done by the
party would be considered "non-est‖
and of no consequence. It was held that in such cases, the party cannot be
given the benefit of initial filing and the date on which the defects are cured
would have to be considered as the date of initial filing.
The quote
from the Judgment as under:
―17. The cases of delay in
re-filing are different from cases of delay in filing inasmuch as, in such
cases the party has already evinced its intention to take recourse to the
remedies available in courts and has also taken steps in this regard. It cannot
be, thus, assumed that the party has given up his rights to avail legal
remedies. However, in certain cases where the petitions or applications filed
by a party are so hopelessly inadequate and insufficient or contain defects
which are fundamental to the institution of the proceedings, then in such cases
the filing done by the party would be considered non est and of no consequence.
In such cases, the party cannot be given the benefit of the initial filing and
the date on which the defects are cured, would have to be considered as the date
of the initial filing.‖
Additionally, the Division Bench in Durga Construction Co. (supra)
also emphasised that where the defects are only perfunctory and not affecting
the substance of the petition, even though the petition is re-filed beyond the
period of 3 months and 30 days, the Court has the jurisdiction to condone the
said delay in re-filing. It emphasised that Section 34(3) of the A&C Act
only prescribes the limitation with regard to the filing of an application to
challenge the Award and has no further application on the delay in re-filing of
such petition. We may quote from the Judgment as under:
―18. In several cases, the defects may
only be perfunctory and not affecting the substance of the application. For
example, an application may be complete in all respects, however, certain
documents may not be clear and may require to be retyped. It is possible that
in such cases where the initial filing is within the specified period of 120
days (3 months and 30 days) as specified in section 34(3) of the Act,
however, the re-filing may be beyond this period. We do not think that in such
a situation the court lacks the jurisdiction to condone the delay in re-filing.
As stated earlier, section 34(3) of the Act only
prescribes limitation with regard to filing of an application to challenge an
award. In the event that application is filed within the prescribed
period, section 34(3) of the Act
would have no further application. 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 whether sufficient cause has been
shown which prevent re-filing the petition/application within time.
The
Supreme Court in the case of Union
of India v. Popular Construction Company: (2001) 8 SCC 470
has held that the time limit prescribed under section
34 of
the Act to challenge an award is not extendable by the Court under section
5 of
the Limitation Act, 1963 in view of the express language of section
34(3) of
the Act. However, this decision would not be applicable in cases where the
application under section
34 of
the Act has been filed within the extended time prescribed, and there is a
delay in re- presentation of the application after curing the defects that may
have been pointed out. This is so because section
5 of
the Limitation Act, 1963 would not be applicable in such cases. Section
5 of
the Limitation Act, 1963 provides for extension of the period of limitation in
certain cases where the Court is satisfied that the appellant/applicant had
sufficient cause for not preferring an appeal or making an application within
the specified period. In cases, where the application/appeal is filed in
time, section
5 would
have no application. The Supreme Court in the case of Indian
Statistical Institute v. Associated Builders: (1978) 1 SCC 483
considered the applicability of section
5 of
the Limitation Act, 1963 where the objection to an award under the provisions
of the Arbitration
Act, 1940 was
filed in time but there was substantial delay in re-filing the same. The High
Court in
that case held
that there was a delay in filing the objections for setting aside the award and
consequently, rejected the application for condonation of delay. An appeal
against the decision of the High Court was allowed and the Supreme Court
rejected the contention that there was any delay in filing objections for
setting aside the award. The relevant extract from the decision of the Supreme
Court is reproduced below:-
"9. ..... In the
circumstances, it cannot be said that objections were not filed within time or
that because they were not properly stamped the objections could not be taken
as having been filed at all. Therefore, in our view, there had not been any
delay in preferring the objections. The delay, if any, was in complying
with the directions of the Registrar to rectify the defects and refiling the
objections. The delay, as we have pointed out earlier, is not due to any want
of care on the part of the appellant but due to circumstances beyond its
control.
10. The High Court was in error in
holding that there was any delay in filing the objections for setting aside the
award. The time prescribed by the Limitation Act for filing of
the objections is one month from the date of the service of the notice. It is
common ground that the objections were filed within the period prescribed by
the Limitation Act though
defectively. The delay, if any, was in representation of the objection petition
after rectifying the defects. Section 5 of the
Limitation Act provides for extension of the prescribed period of limitation if
the petitioner satisfies the court that he had sufficient cause for not
preferring the objections within that period. When there is no delay in
presenting the objection petition Section 5 of the
Limitation Act has no application and the delay in representation is not
subject to the rigorous tests which are usually applied in excusing the delay
in a petition under Section 5 of the
Limitation Act. The application filed before the lower court for condonation of
the delay in preferring the objections and the order of the court declining to
condone the delay are all due to misunderstanding of the provisions of the
Civil Procedure Code. As we have already pointed out in the return the
Registrar did not even specify the time within which the petition will have to
be represented."
As
is noted hereinabove, Section 34(3) of the A & C Act prescribes a strict period
of limitation within which a challenge to an Arbitral Award can be filed. It
also restricts the power of the Court to condone the delay in filing the same,
by providing that a delay of not more than 30 days can be condoned by the
Court. For this, there are different parameters that are to be adopted while
considering a delay in filing of a petition under Section 34 of the A&C Act
as against a delay in re-filing of the same. While for a delay in filing, the
power of the Court is restricted and it cannot condone a delay of beyond 30
days, however, the power of the Court for condoning the delay in re- filing is
not so restricted and a delay in re-filing of the application, even if it is of
a period of more than 30 days, can be condoned.
In
paragraph no. 48 & 49 the full bench has held that the two cardinal
principles that are applicable to a petition under Section 34 of the A&C
Act are as under:
“48.(a)
Firstly, arbitration being an alternate dispute resolution mechanism, has to
have its efficacy in expeditious disposal. It is for this reason that not only
the extent of judicial intervention is curtailed, as would be evident
from Section 5 of the A&C
Act as also Section 34 of the A&C Act, but also a stricter timeline is
provided under Section 34(3) of the said Act. This object cannot be defeated by
allowing a party to file an application under Section 34 of the A&C Act
without the basic attributes, with an intent to merely stall the period of limitation
from running;
(b)
Secondly, the only remedy available against a domestic Arbitral Award is an
application under Section 34 of the A&C Act. This right, therefore, should
not be negated on mere technicalities, and the procedural requirements should
not be allowed to trump the substantive rights of a party.
49. Keeping the above cardinal principles of law in mind, the
Courts have adopted the test of ―non-est‖ filing, wherein the Courts considered if the initial filing of
the application under Section 34 of the A&C Act is so deficient so as not
to be considered as a filing at all. Resultantly, even if such deficient filing
is made within the period of limitation as prescribed in Section 34 of the
A&C Act, the Court will not consider the same to have been filed in law,
and the period of limitation for filing the same shall not stop and shall
continue to run.
The Full bench also concluded as to
what shall constitute non est filing. The same is as under:
A bare reading of the Section 34 (3)(4)(5) & (6) would show
that it does not expressly lay down a format or specify the essential
requirements that an application filed under Section 34 of the A&C Act must
meet or comply with. It simply lays down the grounds on which the Arbitral
Award may be set aside by a Court. Similarly,
even the Delhi High Court Rules do not lay down the necessary
requirements of an application under Section 34 of the A&C Act. In fact, there
is no clear and definite guideline to show as to when a petition
-when originally filed, would be considered as non- est, or otherwise. The
nature of defects - which would render an initial filing as non-est, is not clearly set out.
Therefore, it would not be fair to a party - who files a petition before a
Court, to be told that his initial filing was non-est due to certain defects. That declaration or pronouncement
by the Court - in each case, would be subjective and ad-hoc.
In para 55 & 59 , the full bench has held as under:
55. However, in our view, the above cannot mean that there are no
mandatory requirements of an application under Section 34 of the A&C Act,
and that a challenge to an Arbitral Award may be made in any form or manner,
and the Court would be helpless even if the application filed is not
intelligible at all or lacks even the very basic attributes and form of an
application. Taking a crude example, let us assume that an application is filed
challenging an Award dated 01.01.2025 on 03.01.2025, annexing therewith a copy
of some other Arbitral Award totally unconnected with the proceedings, without
signatures of the applicant or his advocate, without affidavit, without
Vakalatnama, without any grounds of challenge, without back-ground of facts,
etc., however, clearly saying that the application is under Section 34 of the
A&C Act challenging the Arbitral Award dated 01.01.2025. The application
also bears the required Court Fee. Would this be a filing that would stop the
limitation under Section 34(3) of the A&C Act from running? Our answer has
to be in the negative. Accepting such a suggestion, in our view, would negate
the restriction of limitation that has been placed under Section 34(3) of the
A&C Act. It will be like mocking the system of the Court and the
provisions of the A&C Act and the legislative intent behind it. The
Courts, to answer such situation, have devolved the concept of
"non-est" filing or a filing not recognised by law.
59. In our opinion, none of the above conditions can be satisfied
unless the Arbitral Award under challenge is placed before the Court.
Therefore, filing of the Arbitral Award under challenge along with the
application under Section 34 of the A&C Act is not a mere procedural
formality, but an essential requirement. Non-filing of the same would,
therefore, make the application "non-est" in the eyes of the law.
It is therefore held that the view of the Court in Planetcast
Technologies Ltd. (supra), that mere non-filing of the Statement of
Truth would make the application filed under Section 34 of the A&C Act to
be declared as a non-est filing, therefore, is not correct.
That the full bench was cognizant
of the fact that procedural defects cannot be allowed to triumph the
substantive rights of a party, particularly since in view of the prescription
of Section 34 of the A&C Act. It bears no emphasis that it is the only
remedy for a party aggrieved by an Arbitral Award and the said right cannot be
negated merely on procedural technicalities and hence, in order to deal with
the application u/s 34 of A & C Act as non-est, a more liberal view in
favour of the party filing the same should be taken. Even in general law,
objections like the pleadings not being properly signed on each and every page,
or there being a defect in the affidavit, or verification, are treated as
procedural and curable defects. However, if only cumulatively, and that too,
only after the Court finds that the aforesaid defects have been left by the
petitioner while filing the application under Section 34 of the A&C Act
with a mala fide intent and only for mechanically meeting the period of
limitation without actual initial intention of hearing of the case, the Court
may still find the application so filed to be non-est. and there cannot be
a straight jacket formula in this regard.
The full bench has summarised in para no. 97 that:
97. We
summarise our answer to the Reference, as under:
a) Non-filing of the
Arbitral Award alongwith an application under the Section 34 of the A&C Act
would make the said application liable to be treated and declared as non-est,
and the limitation prescribed under Section 34(3) of the A&C Act shall
continue to run in spite of such filing;
b) Mere non-filing of the
Statement of Truth or a defect in Statement of Truth being filed, that is,
including with blanks or without attestation, would not ipso facto, make the
filing to be non-est. However, if accompanied with other defects, the Court may
form an opinion, based on a cumulative list of such defects, that the filing
was non- est;
c)
Similarly, non-filing or filing of a defective Vakalatnama; the petition not
being signed or properly verified; changes in the content of petition being
made in form of addition/deletion of facts, grounds, or filing of additional
documents from arbitral record, or filing with deficient court fee, each of
these defects, individually would not render to filing of an application under
Section 34 of the A&C Act to be treated and declared as non-est. However,
presence of more than one of such defects may, in the given set of facts
involved in a case, justify the conclusion of the Court that filing of the
application was never intended to be final and therefore, is liable to be
declared non-est.
The aforesaid
discussion has thus settled the ambiguity as regards what may constitute non est filing. No doubt,
in Union
of India v. Popular Construction Company: (2001) 8 SCC 470, the Supreme Court has held that limitation
period for challenging an award beyond 4 months period ( inclusive of one month
additional period) cannot be extended and any filing of objection u/s 34 of the
A & C Act shall be time barred and in this backdrop, if filing is made
within limitation period, yet if the same is incomplete, merely, because of that,
the same cannot be treated as non est
filing, since, a substantive rights of a party against the arbitral award shall
be nullified, in effect, unless, it meets the requisites as laid down by the full
bench in the Pragati Construction Consultants (Supra).
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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