Kerala High Court
M/S Madhucon Projects Ltd vs M/S Bharat Petroleum Corporation Ltd on 15 October, 2025
2025:KER:76877
OP(C) NO. 1405 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
WEDNESDAY, THE 15TH DAY OF OCTOBER 2025 / 23RD ASWINA, 1947
OP(C) NO. 1405 OF 2025
AGAINST THE ORDER DATED 10.04.2025 IN OPARB NO.69 OF 2024 OF
ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,
ERNAKULAM
PETITIONER(S)/PETITIONER/RESPONDENT:
M/S MADHUCON PROJECTS LTD.
MADHUCON HOUSE, PLOT NO. 1129/A, ROAD NO. 36, JUBILEE HILLS,
HYDERABAD, REPRESENTED BY ITS MANAGING DIRECTOR, PIN -
500033
BY ADVS.
SHRI.LAL K.JOSEPH
SHRI.P.MURALEEDHARAN (THURAVOOR)
SMT.T.A.LUXY
SHRI.PHILIP J.VETTICKATTU
SHRI.SURESH SUKUMAR
SRI.ANZIL SALIM
SHRI.SANJAY SELLEN
SMT.SONIA SHIBU
RESPONDENT()/RESPONDENT /PETITIONER:
M/S BHARAT PETROLEUM CORPORATION LTD.
KOCHI REFINERY(BPCL-KOCHI REFINERY), AMBALAMUGAL, ERNAKULAM,
KERALA REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE AND
CHIEF MANAGER GEORGE THOMAS, PIN - 682302
BY ADVS.
SRI.THOMAS P.KURUVILLA
SRI.P.PRIJITH
SHRI.PRAKHAR DEEP
SRI.JOSEPH KODIANTHARA (SR.)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.10.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:76877
OP(C) NO. 1405 OF 2025
2
JUDGMENT
Dated this the 15th day of October, 2025 This petition is filed by the petitioner/respondent seeking to set aside the order dated 10.04.2025 passed by the Commercial Court, Ernakulam in I.A. No. 4 of 2025 in O.P. (Arb) No. 69 of 2024, whereby the application filed by the petitioner challenging the maintainability of the Arbitration Petition filed by the respondent under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'A&C Act') was dismissed.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The case of the petitioner before the Commercial Court is that the respondent filed a petition OP (Arb) No.69 of 2024 under Section 34 of the A&C Act by challenging the award passed by the Arbitrator dated 14.8.2024. The petition has been filed on 26.11.2024. After appearance of the petitioner (respondent) before the Commercial court, the IA No.4 of 2025 has been filed on the ground of maintainability, as there is a violation of Rule 13 of the Electronic Filing Rules for Courts 2025:KER:76877 OP(C) NO. 1405 OF 2025 3 (Kerala), 2021 (herein after referred to as the 'E-Filing Rules') and the hard copy of the petition has been filed before the Commercial court on 26.11.2024 which was returned back for curing the defect. Subsequently, the defect was cured and filed the same by the respondent within 17.12.2024. There is a violation of Rule 13 of the E-filing Rules, and the respondents have also not obtained exemption under Rule 10 of the Electronic Filing Rules for Courts (Kerala), 2021. Therefore, the petition contains numerous defects. Since accepting the physical filing was beyond the period of limitation and in violation of the Electronic Filing Rules, the petition ought not to have been accepted for filing by the Commercial Court. Therefore, the very petition was not maintainable, and the rejection of the application by the trial court is not correct. Hence, the petitioner is before this Court.
4. Learned counsel for the petitioner seriously contended that the trial court committed an error in dismissing the petition holding that the petition is within the time, under only curable defects and the other counsel relied upon the judgment of the Full Bench of the Delhi High Court in the case of 2025:KER:76877 OP(C) NO. 1405 OF 2025 4 Pragati Construction Consultants v. Union of India and Ors. (MANU/DE/0710/2025) and also the judgment of the coordinate Bench of this Court in Padmaja Devi v. Vidhya 2025 (KLT online 2511).
5. The learned counsel for the petitioner also contended by filing an additional documents obtained by the petitioner from the Registry of the Commercial Court under the RTI Act, wherein the Registry has given reply to the questions and information sought by the petitioner, wherein there is no defect in the server of e-filing portal of the District Judiciary as on 26.11.2024 and there were 42 cases filed on the same date before the District court through e-portal. Thus, the contends of the respondents are not correct that there was a problem in the e-portal service and hence prayed for setting aside the order under challenge.
6. Per contra, the learned counsel for the respondent supported the order passed by the trial court, contending that the arbitral award was passed on 14.08.2024 and that the copy of the award was received on 27.8.2024. The respondent required to file petition under Section 34 of the A&C Act within three months, plus 30 days under Section 34(3) of the A&C Act.
2025:KER:76877 OP(C) NO. 1405 OF 2025 5 The physical filing was made on 26.11.2024 and on the same day in the early hours, a copy of the petition has been forwarded to the petitioner through e-mail with three attachments and subsequently tried for filing through e-portal but it could not be uploaded due to the large number of the documents, including arbitral award. Therefore, the respondent proceeded with physical filing, which was accepted by the Registry. However, the Registry found certain defects in the filing, and the hard copy was returned for curing those defects. Accordingly as per the defect noted by the Registry, the respondent cured the defect No.1 by filing the e-filing as on 9.12.2024 within 14 days granted by the Commercial court and the remaining defects were cured subsequently, physical petition has been filed within the date of 17.12.2024. It is further contended that, even otherwise, the petition was filed within the limitation period of 120 days (i.e., three months + 30 days) as prescribed under Section 34(3) of the A&C Act. Therefore, it is submitted that there is no violation of Rule 13 of the E-Filing Rules and there was no necessity to seek exemption under Rule 10 also. Thus, merely the non-filing of the statement of truth, which is only a curable defect, that 2025:KER:76877 OP(C) NO. 1405 OF 2025 6 cannot be a ground to say that the petition is not maintainable. The trial court considering the arguments and the counter filed by the respondents, rightly dismissed the application. There is no illegality in the order for warranting interference by this Court.
7. The learned counsel for the respondent relied upon the judgment of the Single bench of the Delhi High Court reported in 2025 SCC online Delhi 1714 (Himalayan Flora and Aroma Private Limited v. Uttar Pradesh Irrigation Department and Another).
8. Upon hearing the arguments and perused the records, it is an admitted fact before the court below that an arbitration award has been passed by the Arbitrator on 14.8.2024 and the order has been received by the respondents on 27.8.2024. The respondent is required to challenge the arbitration award within three months from the date of receipt of a copy of the award, with an additional 30 days allowed to sufficient cause to challenge the arbitral award. There is no dispute in this regard. The respondent, admittedly filed the petition by physical filing (hard copy) as on 26.11.2024. On 26.11.2024, the respondent sent an e-mail to the petitioner by 2025:KER:76877 OP(C) NO. 1405 OF 2025 7 serving a copy of the petition along with the three attachment as on 26.11.2024 at 12.37 pm. Subsequently, respondent filed the hard copy of the petition on the same day before the Commercial court where the Registry accepted the petition filed by the respondent and returned back for curing the defects, which is as under:
Defect
1. Not e-filed
2. Item No.4 as per index not filed.
3. Index memo incomplete.
4. Synopsis not filed.
5. Age of the petitioner not mentioned in OP
6. Counsel not signed on petition
7. Valuation shown above Rs.10,000/- only.
8. FE not paid.
Return for curing the defect within 14 days.
9. The Sub Judge of the commercial court returned the file by giving 14 days time for curing the defects. The same was signed by the Judge on 27.11.2024 where the office was noted the defects on 26.11.2024. The first defect of 'Not e-filed' was cured by the respondent on 09.12.2024, within 14 days of the defect being notified by the Commercial Court, and also within the prescribed limitation period under Section 34(3) of the Arbitration and Conciliation Act, which prescribes three months 2025:KER:76877 OP(C) NO. 1405 OF 2025 8 plus 30 days for challenging the award. Therefore, it cannot be said, the filing is beyond the period of limitation as contended by the petitioner under Rule 13 of the Electronic Filing Rules for Courts (Kerala). As per Rule 13(1), e-filing must be within the period of limitation and in case of any defect, the limitation cannot be condoned. The party cannot claim any exemption on the limitation, if the petition is not filed within the prescribed period. Admittedly, the petition was filed by the respondents within the limitation prescribed under Section 34(3) of the A&C Act and it cannot be said beyond the limitation in order to claiming any exemption by the respondent.
According to the contention of the counsel for the petitioner that the petition was filed beyond the period of limitation is not acceptable. However, sub-rule (6) provides that the physical petition can be accepted by the court, when the power of the court to accept physical filing has not been taken away by the Rules. When the respondent filed the physical petition within 90 days, i.e., on 26.11.2024, another 30 days was still available to the respondent for filing the petition by giving an explanation showing sufficient cause. Therefore, the petition 2025:KER:76877 OP(C) NO. 1405 OF 2025 9 was filed by the respondent within 3 months + 30 days of the receipt of the award and it is within the 3 months + 30 days prescribed under the A&C Act as the defect in the physical filing was cured and filed within17.12.2024, that is also within 120 days. Thus, it cannot be said that the petition was filed by the respondent beyond the period of limitation. That apart, merely because, a defect was found in the petition, it cannot be rejected on procedural grounds. This issue was dealt with by the Hon'ble Full Bench of the Delhi High Court in the judgment Pragati Construction Consultants v. Union of India (supra), which held as under:
97. We summarise our answer to the Reference, as under:
a) Non-filing of the Arbitral Award along with 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 2025:KER:76877 OP(C) NO. 1405 OF 2025 10 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.
10. The learned counsel for the respondent relied upon the judgment of the Single Judge of the Delhi High Court in the Himalayan Flora case (supra), wherein at paragraphs 20 and 21, by referring to the judgment of the Supreme Court as well as Pragati's case, it was held that the non-filing of the statement of truth is a curable defect and an opportunity should be given to the plaintiff to cure the defect except non filing of the truth statement by the respondent. The same reads thus:
20. As contemplated by Order VI Rule 15A of the CPC, the requirement of statement of truth is to verify the "pleading", which includes "Plaint" as well as "written statement", therefore, the reasoning that the filing of a plaint without statement of truth is a curable defect and the same would not render the plaint to be non-est, will apply with equal force to the written statement that has been filed without statement of truth. Thus, there is no manner of doubt that the written statement filed without a statement of truth is a curable defect and would not render the filing of such written statement as non-est.
21. As regards the question as to whether the defect can be cured after the period of 120 days for filing the written statement has expired, to be noted, that the Full Bench has not laid down that after the period of 2025:KER:76877 OP(C) NO. 1405 OF 2025 11 limitation prescribed for the filing of suit or written statement, is expired, the defect of non-filing of statement of truth or defective statement of truth, cannot be cured. Once it has been held to be a curable defect, an opportunity ought to be granted to the plaintiff or the defendant, as the case may be, to cure the defect provided the plaint or the written statement is otherwise complete in all respects and was filed within the period of limitation. Needless to say, that defect when cured, will regularise the filing of pleading, be it a plaint or a written statement, from the date of its original filing.
11. The petition filed by the respondent before the court was on 26.11.2024 with some defect including non payment of court fee and subsequently, the defect was cured by the respondent as per the directions issued on 27.11.2024 by the Commercial Court and e-filing was made by paying the necessary court fee on 9.12.2024 itself.
12. Considering all the facts, the trial court dismissed the application filed by the petitioner. That apart, the counsel for the petitioner produced the information under the RTI Act where the Registry of the Commercial court stated that there was no server problem on 26.11.2024 and there were 42 cases were filed on the day. But the said document is not produced before the Commercial court. However, physical filing is permissible under Sub-Rule 6 of Rule 13, and the Registry accepted the 2025:KER:76877 OP(C) NO. 1405 OF 2025 12 physical filing on 26.11.2024; it was not refused. Subsequently, the file was returned for curing the defects. The very information obtained under the RTI Act will not have any consequences. Therefore, I am of the view that the order under challenge cannot be interfered with by this Court under Article 227 of the Constitution of India.
Accordingly, the petition is dismissed.
sd/-
sab K. NATARAJAN
JUDGE
2025:KER:76877
OP(C) NO. 1405 OF 2025
13
APPENDIX OF OP(C) 1405/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE O.P (ARB) 69 OF
2024 DATED 25.11.2024 FILED BY THE
RESPONDENT BEFORE THE HONOURABLE
COMMERCIAL COURT, ERNAKULAM
Exhibit P2 THE TRUE COPY OF THE I.A. NO. 4 OF 2025
DATED 11.03.2025 FILED BY THE PETITIONER BEFORE THE HON'BLE COMMERCIAL COURT, ERNAKULAM Exhibit P3 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 19.03.2025 IN EXBT P2 Exhibit P4 THE TRUE COPY OF THE AFFIDAVIT DATED 10.03.2025 FILED BY THE RESPONDENT ALONG WITH THE DOCUMENTS IN EXT.P1.
Exhibit P5 THE TRUE COPY OF THE ORDER DATED 10.04.2025 PASSED BY THE HON'BLE COMMERCIAL COURT, ERNAKULAM IN EXBT P2 RESPONDENT EXHIBITS EXHIBIT R 1(a) True copy of the email dated 26 November 2024 sent by the Petitioner to the Respondent serving the section 34 petition PETITIONER EXHIBITS Exhibit P6 THE TRUE COPY OF THE RTI APPLICATION DATED 30.06.2025 FILED BEFORE THE DISTRICT JUDICIARY.
Exhibit P7 . THE TRUE COPY OF THE REPLY GIVEN BY
THE STATE PUBLIC INFORMATION OFFICER,
DISTRICT COURT, ERNAKULAM DATED
08.07.2025