SENIOR CITIZENS RIGHTS BEFORE MAINTENANCE TRIBUNAL AND WRIT REMEDY

Senior Citizens rights before maintenance Tribunal and Writ remedy

The Maintenance & welfare of Parents & Senior Citizens Act 2007 (MWPSCA) has been enacted to cater to the needs of senior citizens, as it has been observed that Senior citizens in the twilight period of their life often face ridicule in the family and not being looked after adequately. Keeping in view of the redressal of grievances of such sufferings,  therefore, MWPSCA was enacted.

However, what is observed is that against the order of the Tribunal constituted under MWPSCA, a large number of writ petitions are filed before the High Court challenging the orders passed under the said Act, and rules framed thereunder. It is also not clear to many, if the orders shall be appealable and if so, where or whether a writ petition shall lie? In the above perspective, it is imperative to appreciate the scheme of the Act and the Rules framed in this regard. It is further necessary to set out the provisions which are applicable separately qua maintenance and eviction proceedings.

The Delhi High Court has deliberated on the aspect in a matter reported as Rakhi Sharma vs The State & Ors. AIRONLINE 2021 DEL 303.

That in so far as maintenance proceedings under MWPSCA  relating to for the welfare of parents and senior citizens are concerned, the relevant provision is Section 2 (j) of the Act and it provides that the 'Tribunal' would be the forum for exercising first jurisdiction. 'Tribunal' is defined under Section 2 (j) MWPSCA. It may be noted that the 'Maintenance Tribunal' is constituted under Section 7. Which is reproduced as under:

Section 7- Constitution of Maintenance Tribunal.

(1) The State Government shall within a period of six months from the date of the commencement of this Act, by notification in Official Gazette, constitute for each Sub-division one or more Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under Section 5.

(2) The Tribunal shall be presided over by an officer not below the rank of Sub- Divisional Officer of a State.

(3) Where two or more Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them."

That the Rule 3(2) further provides for the constitution of the `Maintenance Tribunal' under Section 7 which reads as under:

"3. Constitution of Maintenance Tribunal ...

(2) The Tribunal shall consist of an ADM or SDM of the subdivision, as the case may be and two other members, of whom one shall be women. ..."

Thus, the Maintenance Tribunal under Section  7 of the Act would be the ADM or the SDM of the concerned sub-division.

                              APPEALS

In order to file appeal in maintenance related matters, the relevant prescription is contained in Section 15 of the Act, under which the State has to constitute an Appellate Tribunal. The section 15 may be perused as under:

"15. Constitution of Appellate Tribunal

(1) The State Government may, by notification in the Official Gazette, constitute one Appellate Tribunal for each district to hear the appeal against the order of the Tribunal.

(2) The Appellate Tribunal shall be presided over by an officer not below the rank of District Magistrate."

Similarly, Rule 16 deals with the establishment and procedure of the Appellate Tribunal, under which, the District Magistrate of each District has been notified as the Appellate Tribunal. Rule 16 reads as under:

"16. Establishment and Procedure of Appellate Tribunal The Government of National Capital Territory of Delhi shall, by notification in the official Gazette, constitute for each District one Appellate Tribunal as may be specified in the notification to hear the appeal against the order of Tribunal under Section 15(1) of the Act."

As per above, appeals can be filed by any by any senior citizen or parent against an order of the Tribunal within 60 days with the Appellate Tribunal. Thereafter, the Appellate Tribunal has to adjudicate and decided on the appeal. Section 16 reads as under:

"16. Appeals.

(1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal:

Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal:

Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent. (3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred.

(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal.

(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the  Tribunal and the order of the Appellate Tribunal shall be final:

Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a dully authorised representative.

(6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal.

(7) A copy of every order made under sub-section (5) shall be sent to both the parties free of cost."

WHO CAN PREFER APPEAL

The question as to who can prefer the appeal has already been decided by Delhi High Court in the following judgments:

i.             Naveen Kumar  Vs GNCTD & Ors [W.P.(C) 1337/2020, decided on 5th February, 2020];

ii.           Shri Amit Kumar Vs Smt Kiran Sharma& Anr . [W.P.(C) 106/2021, decided on 6th January, 2021];

iii.       Sh. Shumir Oliver & Anr VsGNCTD & Ors . [W.P.(C) 2857/2021, decided on 3rd March, 2021]

The aforesaid judgments makes it clear that any `affected person' can prefer the appeal and not just a senior citizen or parent. The Division Bench of the Punjab and Haryana High Court in Paramjit Kumar Saroya Vs The Union of India & Anr , 2014 SCC OnLine P&H 10864 has been the earlier precedent in this regard.. The relevant observations are set out below:

"An appeal is envisaged "against the order of the Tribunal". This is how Section 15 reads. It does not say an appeal only by a senior citizen or parent. However, sub section (1) of Section 16 refers to any senior citizen or a parent "aggrieved by an order of the Tribunal". This seeks to give an impression on a plain reading as if only a senior citizen or parent can prefer an appeal and, thus, restricting the appeal to only one set of party, while denying the right of appeal to the opposite side who are liable to maintain. However, this is not followed by the first proviso which deals with the operation of the impugned order during the pendency of the appeal and clarifies that the pendency of the appeal will not come in any manner in the way of the children or relative who is required to pay any amount in terms of any such order to continue to pay the amount. Now it can hardly be envisaged that in an appeal filed by the senior citizen or parent, there could be a question of absence of stay. Such absence of stay was only envisaged where the appeal is preferred by a children or relative. It is that eventuality the proviso deals with. The proviso is, thus, consistent with what has been set out in Section 15 of the said Act. ...”

Proceedings relating to eviction

In so far as eviction proceedings are concerned, the same are governed by The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016. By the said amendment, after sub rule 2 of Rule , sub-rule 3 was inserted. Rules 22(3)(1) and 22(3)(4) are relevant and are set out below:

"22. Action plan for the protection of life and property of senior citizens. -

.                                       (3) (1) Procedure for eviction from property/residential building of Senior Citizen/Parents, -

(i) A senior citizen may make an application before the Dy. Commissioner/District Magistrate (DM) of his district for eviction of his son and daughter or legal heir from his self acquired property on account of his non- maintenance and ill-treatment.

(ii) The Deputy Commissioner/DM shall immediately forward such application to the concerned Sub Divisional Magistrates for verification of the title of the property and facts of the case within 15 days from the date of receipt of such application.

(iii) The Sub Divisional Magistrate shall immediately submit its report to the Deputy Commissioner/DM for final orders within 21 days from the date of receipt of the complaint/application.

(iv) The Deputy Commissioner/DM during summary proceedings for the protection of senior citizen parents shall consider all the relevant provisions of the said Act 2007. If the Deputy Commissioner/DM is of opinion that any son or daughter or legal heir of a senior citizen/parents is not maintaining the senior citizen and ill treating him and yet is occupying the self acquired property of the senior citizen, and that they should be evicted, the Deputy Commissioner/DM shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause as to why an order of eviction should not be issued against them/him/her.

(v) The notice shall-

(a) specify the grounds on which the order of eviction is proposed to be made ; and

(b) require all persons concerned, that is to say, all persons who are , or may be, in occupation of, or claim interest in, the property/premises, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue thereof.

(3) Appeal

(i) The appeal against the order of Dy. Commissioner/DM shall lie before the Divisional Commissioner, Delhi.

(ii) Provisions regarding disposal of appeal before Appellate Tribunal shall apply mutatis mutandis to the appeals before the Divisional Commissioner, Delhi."

That as per the above Rules, thus, what emerges is that a senior citizen can approach the Deputy Commissioner/DM seeking eviction of the son, daughter or any other legal heir from his self-acquired property on account of his non-maintenance and ill-treatment. The term 'self-acquired property' has been amended to include 'property of any kind', vide notification dated 28th July, 2017 numbered F.No.40(405)/ Amendment of Rules MAWPSC2007/DD(SS)/ DSW/ 2015-6/1168411712. Thus, the senior citizen can approach the Deputy Commissioner/DM for eviction from any property over which he/she enjoys rights. Accordingly, the title of the senior citizen may be ascertained and a report is submitted by the concerned SDM after verifying both the title as also the facts pleaded. If the Deputy Commissioner/DM is satisfied, then, in that event  notice is generally issued to the children/relatives or legal heirs, who is sought to be evicted and after hearing the parties necessary orders could be passed.

That under Rule 22(3)(4), an appeal against the order of the Deputy Commissioner/District Magistrate would lie before the Divisional Commissioner, Delhi. Thus, in respect of eviction, the first forum would be  the Deputy Commissioner/District Magistrate. A challenge to the order of the Deputy Commissioner/DM would lie before the Divisional Commissioner.

In Rakhi Sharma  (Supra) the following directions are issued:

The Deputy Commissioner/DM under Rule 23(3) of the Rules as amended on 19th December, 2016, should mention,

For maintenance cases:

"The present order would be appealable, under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 16 of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, to the Appellate Tribunal, presided over by the Deputy Commissioner of the concerned District. The period of limitation for filing of appeal is 60 days."

And in For eviction cases:

It should be specified-

"The present order would be appealable under Rule 22(3)(4) of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, as amended on 19th December, 2016 before the Divisional Commissioner, Delhi. The period of limitation for filing of appeal is 60 days."

The hon’ble Delhi High Court, therefore, in Rakhi Sharma (Supra) was pleased to further direct that the order be communicated to all the Maintenance Tribunals and Appellate Tribunals, as also the concerned Presiding Officers who are exercising powers under the Rules. It is held that whenever writ petitions are filed against original orders, the Registry should inform the lawyers of the availability of the alternate remedy, in case they wish to avail of the same. In view of the above discussion, it was held that the order passed by the Tribunal would be appealable to the Divisional Commissioner under Rule 22(3)(4) and therefore the petition was dismissed as withdrawn. with liberty to the Petitioner to approach the Divisional Commissioner. Thus, generally,  The writ petition shall lie against the order passed in the appeal by the Appellate Tribunal and not by the Maintenance tribunal, in view of existence of alternate remedy of appeal.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

 

REVOCATION OF GIFT DEED: CIRCUMSTANCES EXPLAINED

 

REVOCATION OF GIFT DEED: CIRCUMSTANCES EXPLAINED

A Gift Deed is another mode of conveyance of immoveable properties and is invoked for gifting the property to near and dear without consideration. It is required to be registered and stamp duty, though, shall be payable ad valorem as is the case with any sale transactions. The conventional mode of conveyance , based on consideration , of course, is execution of registered sale deed. However, if a registered documents is sought to be cancelled, provided the case is made out, there are criteria laid down in this regard.

A gift deed can be sought to be cancelled on certain grounds and prescription thereof is included in Section 126 of Transfer of Properties Act 1882 and that contains the following criteria for cancellation of Gift Deed:

(i)          If the consent from the donor was obtained fraudulently and by deceit, undue influence or coercion;

(ii)        If the donee has failed to meet any condition stipulated in the Gift Deed;

(iii)       If the purpose and object of the Gift Deed itself was illegal;

(iv)       If not registered in accordance with law;

(v)         The Gift to a minor , who failed to accept it within a reasonable period, after attaining majority;

(vi)       If the Gift was made by aged persons who was unable to comprehend and understand the contents and purpose of the deed.

(vii)     A Gift Deed cannot be cancelled merely because the donor had changed his/her mind.

(viii)   The property has financial liabilities and encumbrances;

(ix)       Non acceptance of gift by donee.

It is a settled proposition in law that a Gift Deed cannot be cancelled, simply, because a Will was made, subsequently, by the donor bequeathing the same property to someone else.

Handing over of possession and accepting the possession is generally not required in a gift. Even if donor retained the possession that shall not invalidate the gift.

Sudesh Chhikara vs Ramti Devi & Anr 2022 LiveLaw (SC) 1011

The Supreme Court in Sudesh Chhikara (Supra) it is held that gift deed can be cancelled u/s 23 of Maintenance and Welfare of Parents & Senior Citizens Act 2007, only, if the transfer of property was under certain conditions of providing basic amenities and basic physical needs to parents. Merely, because, the donee could not meet the expectation of donor in itself shall not be a ground to cancel a gift deed.

Whereas, in Sudesh Chhikara (Supra) the Maintenance Tribunal had passed order, thereby, the Release Deed was declared as null and void for not maintaining the parents and the same was confirmed by the high court in writ petition. However, the Supreme Court has set aside the orders passed by the Tribunal and the High Court and held  that upon perusal of the counter affidavit filed it is not pleaded that the release was subject to any condition. It is merely pleaded that the appellant had no intention to take care of her mother. Thus, it was held that the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfied and that the high court has wrongfully not adverted to the merits of the case at all.

The Sub-Divisional Magistrate acts as the Maintenance Tribunal under the 2007 Act and the power under Section 23 could be invoked and the release deed or gift deed could be declared void in apt cases.. The 2007 Act has been enacted for the purposes of making effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India. The Maintenance Tribunal has been established under Section 7 to exercise various powers under the 2007 Act. Section8  provides that the Maintenance Tribunal, subject to any rules which may be framed by the Government, has to adopt such summary procedure while holding inquiry, as it deems fit. Apart from the power to grant maintenance, the Tribunal exercises important jurisdiction under Section 23 of the 2007 Act. The contents of Section 23 of 2007 is reproduced herein for ready reference:

“23. Transfer of property to be void in certain circumstances.—

(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses  or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5 (emphasis added)

When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. It is so, because, generally, such transfers are made out of love and affection without any expectation in return. Thus, if it is alleged that the conditions mentioned in sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal and it cannot just be a mere allegation..

A cursory perusal of the petition challenging the registered deed under Section 23 of the Act should clearly reflect that the deed/release deed was executed subject to a condition that the transferees in cases of Sons/daughter would provide the basic amenities and basic physical needs to the donor parents. If evidence to the aforesaid effect is non existing, the gift deed or release deed cannot be faulted with on the premise of oral assumptions No doubt, if transfer is effected subject to a condition of providing the basic amenities and basic physical needs to the transferor – a senior citizen and that is made a sine qua non for applicability of sub-section (1) of Section 23 and if the condition is violated, then the gift deed or release deed can possibly not sustain.

The challenge to Gift deed and provisions

The challenge to a gift deed, in order to seek its cancellation or declaration that the gift deed is null and void in view of illegalities shall have to be preferred within three (3) years of the date of gift deed or within three (3) years from the date of knowledge, as the case may be. The Article 59[8] of the Limitation Act 1963 stipulates that within three years from the date of discovery of grounds for cancellation, the same can be challenged.

Section 31 of the Specific Relief Act, 1963 is the provision under law which enumerates right to any person to get the relief of cancellation of instruments being void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury. The term "written instrument" has been used in Section 31  of Specific Relief Act, 1963 and according to the definition provided therein only a "written instrument" could be adjudged by the Court as void and voidable or cancelled.

Section 31 of Specific Relief Act, 1963, for convenience is reproduced below:-

"31. When cancellation may be ordered - (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian registration Act 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."

In the aforesaid description, it is explained that firstly, a gift deed shall have to be registered for its efficacy and validity and it can be revoked, pursuant to a petition to be preferred to that effect in a competent courts of law, within a period of three years from the date of the execution of “instrument” and from the date of knowledge as the case may be, but only if the circumstances as explained above for seeking cancellation of it existed. Even, in the case of senior citizens, merely, because a senior citizen, who had executed a gift deed was not being looked after, is not a ground for seeking its cancellation, but, if such condition is made part of the gift deed as a covenant, then, that can be a ground to seek cancellation.

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

OBJECTION U/S 34: A & C ACT: WHAT CONSTITUTED NON EST FILING

 

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:

--Order XI Rule 1 CPC:

*** (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