Delhi High Court
Ambrosia Corner House Private Limited vs Hangro S Foods on 30 January, 2023
Author: Navin Chawla
Bench: Navin Chawla
Neutral Citation Number:2023/DHC/000622
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:13.01.2023
Date of decision:30.01.2023
+ O.M.P. (COMM) 323/2022 & I.As. 12200/2022, 12201/2022,
12202/2022
AMBROSIA CORNER HOUSE PRIVATE LIMITED
..... Petitioner
Through: Mr.Lalit Bhasin, Ms.Nina Gupta,
Ms.Ananya Marwah, Mr.Ajay Pratap
Singh, Advs.
versus
HANGRO S FOODS ..... Respondent
Through: Mr.V.K.Garg, Sr. Adv. with Mr.Avneesh
Garg, Mr.Parv Garg, Mr.Pawas
Kulshrestha, Mr.K.S.Rekhi, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. This petition has been filed under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the 'Act') challenging
the Arbitral Award dated 14.03.2022 passed by the learned Sole
Arbitrator.
2. The learned senior counsel for the respondent has raised a
preliminary objection on the maintainability of the present petition
contending that the same has been filed beyond the period prescribed in
Section 34(3) of the Act, including the maximum period of delay that can
be condoned by this Court in filing of the present petition.
3. At the outset, a few admitted facts deserve to be noticed:-
(a) The date of the Impugned Award is 14.03.2022;
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(b) The petitioner does not dispute that a copy of the Award was
supplied by the learned Arbitral Tribunal to the petitioner on the
same day and, therefore, for the filing of the present petition,
the period shall commence from 14.03.2022;
(c) The period of three months prescribed under Section 34(3) of
the Act for filing of the petition expired on 13.06.2022;
(d) The Court was closed for summer vacation between 04.06.2022
till 01.07.2022. For the purpose of limitation, by the
Notification dated 20.05.2022 issued by the High Court, the
Court was deemed to have re-opened only on 04.07.2022;
(e) The petition was filed by the petitioner on 04.07.2022. The
same was, however, marked defective by the Registry of this
Court with the following observation:-
"TOTAL 82 PAGES FILED, NO AWARD FILED, NO
DOCUMENTS FILED, NO BOOKMARKING DONE,
NON OF THE AFFIDAVIT ATTESTED. CANNOT
RAISE PROPER OBJECTIONS, BE FILED AS PER
THE NORMS GIVEN FOR E FILING ON THE WEB
PORTAL OF DELHI HIGH COURT."
(f) The petition was thereafter re-filed by the petitioner on 26th,
27th and 29th July, 2022, when again certain defects were found
in the filing of the petition, and the petition was returned to the
petitioner for re-filing.
(g) The petitioner then re-filed the petition on 01.08.2022, when it
was accepted for listing by the Registry of this Court.
4. Based on the objections that were found by the Registry in the
filing by the petitioner on 04.07.2022, the learned senior counsel for the
respondent submits that the said filing was 'non-est'. He submits that the
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Office Report indicates that only 82 pages were filed on 04.07.2022. The
filing was without a copy of the Impugned Award or the documents in
support of the grounds for challenge. Even the affidavit in support of the
petition was not attested through the Oath Commissioner. He submits that
the petitioner eventually filed the petition only on 26.07.2022, running
into 715 pages. He submits that though the said petition was also returned
by the Registry raising some defects, at best, 26.07.2022 can be
considered as the date of first filing of the petition. In support he places
reliance on the judgments of this Court in DDA v. Durga Construction
Co., (2013) 139 DRJ 133; Union of India v. Bharat Biotech
International Ltd., (2020) 268 DLT 140; Oil and Natural Gas
Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering
Enterprises (SREE) & M/s Megha Engineering & Infrastructure
Limited (MEIL), 2019 SCC OnLine Del 10456; Oil and Natural Gas
Corporation Ltd. v. Planetcast Technologies Ltd., (2020) 271 DLT 474;
Chintels India Limited v. Bhayana Builders Pvt. Ltd., (2020) 270 DLT
381; and Executive Engineer National Highway Division v. S&P
Infrastructure Developers (P) Ltd., 2022 SCC OnLine Del 1859.
5. The learned senior counsel for the respondent further submits that
in terms of the proviso of Section 34(3) of the Act, a delay of not more
than 30 days in filing of the petition can alone be condoned by this Court.
In support he places reliance on Union of India v. Popular Construction
Co., (2001) 8 SCC 470; State of H.P. v. Himachal Techno Engineers,
(2010) 12 SCC 210; and State of Maharashtra v. Ramdas Construction
Co., (2021) 4 SCC 629. He submits that as the petition was filed only on
26.07.2022, that is after the expiry of 30 days period from 13.06.2022,
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this Court would not have the jurisdiction to condone the delay in filing
of the petition.
6. The learned senior counsel for the respondent submits that the
period of three months prescribed for filing of the petition under Section
34 of the Act having expired on 13.06.2022, which is during the summer
vacation of this Court, the petition, in terms of Section 4 of the Limitation
Act, 1963 (hereinafter referred to as the 'Limitation Act'), could have
been filed on the date of the re-opening of the Court after the summer
vacation, which was 04.07.2022. As the filing of the petition on
04.07.2022 was 'non-est', the petitioner is not entitled to seek benefit of
Section 4 of the Limitation Act.
7. Relying upon the judgment of this Court in Telecommunication
Consultants India Ltd. v. IDEB Projects (P) Ltd., 2018 SCC OnLine
Del 7971, he submits that for the purposes of the 30 days' period, which
is the maximum condonable period of delay, the petitioner is not entitled
to seek the benefit of Section 4 of the Limitation Act. The 30 days'
period would commence from 13.06.2022 itself and not from 04.07.2022.
8. The learned senior counsel for the respondent further submits that
even if the period of three months from the date of the receipt of the
Award is to be calculated by excluding the ten days that fell within the
summer vacation of this Court, that is, 04.06.2022 to 13.06.2022, then
also the period of three months would expire on 14.07.2022. The petition
having been filed on 26.07.2022, was, therefore, beyond the prescribed
period. As the petitioner has not filed an application seeking condonation
of delay in filing of the petition, therefore, the petition is liable to be
dismissed as having been filed beyond the prescribed period.
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9. On the other hand, the learned counsel for the petitioner submits
that the petition having been filed on 04.07.2022, is filed within the
period prescribed in Section 34(3) of the Act. He submits that though the
petition was not accompanied with a copy of the Impugned Award, the
same contained the complete particulars and grounds for challenge of the
Award. He submits that the petition was signed on each page by the
Director of the petitioner Company and was also signed by the counsel,
whose vakalatnama was also filed.
10. Placing reliance on the judgment dated 26.11.2021 of this Court in
FAO (OS) (COMM) 6/2020 titled Oriental Insurance Co Ltd. v. Air
India Ltd., he submits that a Division Bench of this Court has held that it
is only where the petition is filed without signatures of either the party or
its authorized or appointed counsel, that the filing of the petition can be
considered as non-est.
11. He further places reliance on the judgment dated 09.01.2023
passed in FAO (OS) (COMM) 324/2019 titled Oil and Natural Gas
Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering
Enterprises (SREE) & M/s Megha Engineering & Infrastructure
Limited (MEIL), to submit that merely because the affidavit
accompanying the petition was not attested, it cannot be said that the
filing was non-est. He submits that the non-filing of the copy of the
Arbitral Award and/or attested affidavit are curable defects.
12. The learned counsel for the petitioner further submits that in terms
of the Notification dated 20.05.2022 issued by the High Court of Delhi, it
was prescribed that the limitation will not run during the vacation period
for the purposes of institution of civil and criminal cases. He submits
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that, therefore, the entire period of summer vacation has to be excluded
for purposes of calculating the three months' period as prescribed in
Section 34(3) of the Act. He submits that, excluding the period of the
summer vacation, the petition filed even on 26.07.2022 would be within
the period of limitation of three months.
13. He further submits that even if 04.07.2022 is considered as the date
on which the period of three months expire, in view of the Notification
dated 20.05.2022 of the High Court of Delhi, the period of 30 days, that
is the maximum period by which the delay in filing of the petition can be
condoned, would expire on 03.08.2022. He submits that in the facts of
the present case, the petitioner has made out a case for condonation of
such delay. He submits that filing of an application for seeking
condonation of the delay is not a mandatory requirement; reasons for the
delay can also be explained orally.
14. In rejoinder, as far as the Notification dated 20.05.2022 of the High
Court of Delhi is concerned, the learned senior counsel for the respondent
submits that the Notification has to be read in conjunction with Section 4
of the Limitation Act. He submits that as the said Notification had further
stipulated that the office of the Court will remain open from 10:00 AM to
5:30 PM except for second Saturday, fourth Saturday, Sundays and other
holidays, Clause 5 of the Notification merely clarifies that in spite of
opening of the office of the Court, the period of limitation will not run
during the period of summer vacation. This was necessitated as
otherwise, in view of the judgment of the Supreme Court in Ajay Gupta
v. Raju Alias Rajendra Singh Yadav, (2016) 14 SCC 314, if the Registry
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of the Court is open, the benefit of Section 4 of the Limitation Act would
not be available to the litigant.
15. I have considered the submissions made by the learned counsels
for the parties. The law on what can be considered as a 'non-est' filing
for purposes of Section 34 of the Act is no longer res integra and has
now been settled by the judgments of the Division Bench of this Court in
Oriental Insurance Co Ltd. (Supra) and Oil and Natural Gas
Corporation Ltd. (Supra).
16. In Oriental Insurance Co Ltd. (Supra), a Division Bench of this
Court has held as under:-
"10. Pertinently, under the relevant High Court
Rules, 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.
11. In our view, a filing can be considered as
non-est, if it is filed without any signatures of
either the party or its authorised and appointed
counsel. Therefore, if a petition - as originally
filed, bears the signatures of the party, or its
authorised representative, in our view, it cannot
be said that the same is non-est. So also, if it is
signed by the counsel, and the Vakalatnama
appointing the counsel, duly signed by both - the
party and the counsel, is filed at the initial stage,
the filing cannot be said to be non-est. This is
because the ownership of the document/ petition
filed is fixed. Also, the factum of filing the
document/petition by the party or on its behalf
becomes a matter of record.
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12. The right to prefer objections to assail the
arbitral award under Section 34 of the Arbitration
and Conciliation Act is a valuable right. It is the
only limited right that a party aggrieved of an
arbitral award, has. The said right, in our view,
cannot be denied unless the party concerned has
clearly failed to file the objection petition within
the strict period of limitation prescribed under the
Act. The objections to the arbitral award - under
Section 34 of the Act, should necessarily be filed
within three months, or within 30 days thereafter
with justification i.e. sufficient cause, for such
delay. No doubt, if they are filed even beyond that
period, they cannot be entertained under any
circumstance. However, when the objections are
initially filed within the period of 3 months plus 30
days, the approach of the Court while dealing
with an application to seek condonation of delay
cannot be too tight fisted. If the party concerned
inhibits careless attitude even after the first filing
and causes delay which is disproportionately
large to the period of limitation prescribed under
Section 34 of the Act, the delay in filing and
refiling may be fatal. (See: Executive Engineer v
Shree Ram Construction Co., (2010) 120 DRJ 615
(DB) and Delhi Transco Ltd. & Anr. vs Hythro
Engineers Pvt. Ltd., 2012 SCC OnLine Del 3557).
However, where they party - after the initial delay
in filing (which is within the 30 days period of the
expiry of the 3 month period of limitation),
exhibits a sense of urgency in refiling(s), then a
more favourable view should be taken by the
Court to condone the delay. In such cases, it is
always possible to put such a party to terms."
17. In Oil and Natural Gas Corporation Ltd. (Supra), another
Division Bench of this Court has further held as under:-
"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
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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 1 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
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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 be defective but it would not render it
non est.
xxxxx
41. We may also add that in given cases there
may be a multitude of defects. Each of the defects
considered separately may be insufficient to
render the filing as non est. However, if these
defects are considered cumulatively, it may lead to
the conclusion that the filing is non est. In 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."
18. From the above judgments, it is clear that a more liberal approach
is to be adopted by the Court while considering whether the filing should
be treated as 'non-est'. In Oriental Insurance Co Ltd. (Supra), it has
been held that a filing can be considered as 'non-est' if it is filed without
signatures of either the party or its authorized or appointed counsel.
Though in Oil and Natural Gas Corporation Ltd. (Supra), it has further
been held that the filing may be considered as 'non-est' where the
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application as filed is intelligible or is not accompanied with a copy of
the Impugned Award or does not set out the material particulars,
including the names of the parties and the grounds for impugning the
Award, it has been clarified that the Court must assess the facts of each
case while determining the issue of the filing being considered as 'non-
est'.
19. In the present case, the learned counsel for the petitioner has
submitted that the petition filed on 26.07.2022 was the same as the
petition filed on 04.07.2022. The petition as filed on 04.07.2022 was duly
signed by the Director of the petitioner Company on all pages of the
petition, and even by the counsel for the petitioner, whose vakalatnama
was also filed with the petition. From the perusal of the index of the
petition filed on 04.07.2022, as supplied by the learned counsel for the
petitioner during the course of the hearing, it appears that the petitioner
also was to file the documents, including copy of the Impugned Award,
in a separate e-folder, that is, part IV as prescribed in the Delhi High
Court (Original Side) Rules, 2018. The same appears to have not been
filed. The petitioner has thereafter re-filed the petition after removing the
defects on 26.07.2022, wherein all documents, including the Impugned
Award was filed. In my opinion, therefore, the first filing on 04.07.2022
cannot be treated as 'non-est' filing. At best, the petitioner committed an
error in not filing the documents in a separate folder as prescribed in the
Delhi High Court (Original Side) Rules, 2018.
20. As observed by the Division Bench in Oriental Insurance Co Ltd.
(Supra), the right to prefer objections to assail the Arbitral Award under
Section 34 of the Act, though extremely limited, is a valuable right; the
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same cannot be denied unless the party concerned has clearly failed to
file the objection petition within the strict period of limitation prescribed
under the Act. In the present case, in my opinion, the conduct of the
petitioner clearly evidences its endeavour to file a proper petition under
Section 34 of the Act on 04.07.2022, that is, the date of re-opening of the
Court for the purposes of limitation in terms of Section 4 of the
Limitation Act. The petition was, therefore, filed within the period
prescribed under Section 34(3) of the Act.
21. In view of the above, I need not go into the issue of the effect of
the Notification dated 20.05.2022 of this Court.
22. Accordingly, the objection of the respondent on the present
petition being barred by the provisions of Section 34(3) of the Act is
rejected.
23. List the petition for preliminary hearing on 27th March, 2023.
NAVIN CHAWLA, J.
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