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Ambrosia Corner House Private Limited vs Hangro S Foods on 6 March, 2023

Author: Navin Chawla

Bench: Navin Chawla

            $~34
            *    IN THE HIGH COURT OF DELHI AT NEW DELHI
            +    O.M.P. (COMM) 323/2022
                 AMBROSIA CORNER HOUSE PRIVATE LIMITED
                                                          ..... Petitioner
                                Through: Dr.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
                              ORDER

% 06.03.2023 I.A. 4517/2023

1. This application under Section 151 of the Code of Civil Procedure, 1908 has been filed by the respondent, seeking recall of the order dated 30.01.2023, passed by this Court in the present petition.

2. This Court by its order of 30.01.2023 had rejected the preliminary objection of the respondent on the maintainability of the present petition on the ground of it being barred by the provision of Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act').

3. The learned senior counsel for the respondent/applicant submits that in the impugned order, this Court failed to take note of the effect of Rule 14.2 of the E-Filing Rules of High Court of Delhi, 2022 (hereinafter referred to as 'E-Filing Rules') which provides that any filing done after 1600 hours shall be considered as having been filed on the date which follows the actual filing date provided that it is a Signature Not Verified court working day. He submits that, therefore, the present petition, Digitally Signed By:SUNIL Signing Date:10.03.2023 18:15:03 which was filed on 04.07.2022 at 11:48 pm, should have been treated to have been filed on 05.07.2022, that is, not on the date of the reopening of the Court after the Summer vacations, and, therefore, with delay. As the petitioner has not filed an application seeking condonation of delay, the same cannot be condoned by this Court and the petition was liable to be dismissed on this ground.

4. He further submits that this Court in paragraph 19 of the order dated 30.01.2023 has given the benefit of doubt to the petitioner stating that the documents which were to be filed in a separate e-folder were not filed by the petitioner. Placing reliance on Rule 8 of the E- Filing Rules, he submits that the petition alongwith the documents are to be filed in one folder and not separate folders. He submits that, therefore, no benefit can be granted to the petitioner on the pretext that documents were to be filed in a separate folder and may have been inadvertently left out from filing.

5. He further submits that in terms of Rule 10 of the E-Filing Rules, the petitioner was to retain and preserve for production or inspection originals of all the documents that are filed through e-filing mode. In the present case, as per the Office Report, 82 pages were filed by the petitioner on 04.07.2022 albeit beyond 1600 hours. The petitioner has, however, produced only the index of the filing made on 04.07.2022 and not the entire paperbook of those 82 pages.

6. On the other hand, the learned counsel for the petitioner submits that the petition was filed on 04.07.2022, however, only at 11:48 pm. He submits that before 04.07.2022 were the holidays of the Court and even assuming that the filing has to be considered as of 05.07.2022, the petitioner has made out sufficient grounds for condoning the delay in filing of the petition.

7. In so far as the objection that the filing is to be done in one Signature Not Verified single folder, he submits that this Court has clearly stated that it was a Digitally Signed By:SUNIL Signing Date:10.03.2023 18:15:03 clerical mistake on part of the petitioner in not filing the documents though they were proposed to be filed along with the petition on 04.07.2022. The observation of the Court cannot be assailed by the respondent by filing this application.

8. On the question of production of the original documents filed on 04.07.2022, he submits that the petitioner had produced the copy of the paperbook as was filed on 04.07.2022, for perusal of the Court and the Court after perusing the documents has made the observations as contained in order of 30.01.2023.

9. I have considered the submissions made by the learned counsels for the parties. In view of Rule 14.2 of the E-Filing Rules, there can be no doubt that any filing done online after 1600 hours on any date has to be treated as having been filed on the date which follows the actual filing date, provided it is a court working day. In the present case, as the filing has been done by the petitioner on 04.07.2022 at 11:48 pm, it, therefore, has to be treated as having been filed on 05.07.2023.

10. The present petition challenges the Arbitral Award dated 14.03.2022. The period of limitation for challenging the same would expire on 14.06.2022, as prescribed in Section 34(3) of the Act. The period of limitation, therefore, expired during the Summer Vacations of this Court.

11. In view of Section 4 of the Limitation Act, 1963, if the petition is filed on the reopening day of the Court, the same would be treated as having been filed within the period of limitation. Once the present petition is treated as having been filed on 05.07.2022, the same would clearly be beyond the period of limitation as prescribed under Section 34 (3) of the Act, as the petitioner would not be entitled to claim the benefit of Section 4 of the Limitation Act; 04.07.2022 being the date of the reopening of the Court after the Summer Vacations.

12. The Proviso to Section 34(3) of the Act, however, empowers Digitally Signed By:SUNIL Signing Date:10.03.2023 18:15:03 the Court to entertain a petition under Section 34 of the Act filed beyond the period of limitation, where the applicant has been able to make out sufficient cause for not filing the petition within the prescribed period of three months. However, the said power to condone the delay is circumscribed to be exercisable only for a delay of not more than 30 days. As the petition was filed on 05.07.2022, it would be within the period of thirty days, that is, the maximum period which can be condoned by this Court.

13. In my view, the petitioner has been able to make out a sufficient cause for not filing the petition within the period of three months from the date of the Award and till 05.07.2022 inasmuch as it is the admitted case that the Courts were closed for Summer Vacations from 04.06.2022 to 04.07.2022. The petition, though filed on 04.07.2022, that is the date of reopening of the Court, in terms of E-Filing Rules has to be considered as having been filed on 05.07.2022. As noted in the order of 30.01.2023, Section 34 of the Act, though extremely restricted in scope, still vests a substantial right in a party to challenge the Arbitral Award. The same should not be defeated on account of technicality of the process of Court and its procedures.

14. As far as the submissions of the learned senior counsel for the respondent/applicant that this Court had incorrectly extended the benefit of doubt to the petitioner by stating that the petitioner committed an error in not filing the document in a separate folder, this Court again finds no merit. This Court has, on the basis of the copy of the petition as was filed by the petitioner on 04.07.2022 and supplied to the Court during the course of hearing, observed that the petition was supposed to be accompanied with the copy of the Award, however, was not so accompanied presumably because of a clerical mistake of the petitioner. The observations of the Court are not to be Signature Not Verified read as strictly as the learned senior counsel for the respondent would Digitally Signed By:SUNIL Signing Date:10.03.2023 18:15:03 like them to be read. The observation of the Court was only to extend a benefit of doubt to the petitioner and to convey that the petitioner appears to have taken all steps to file a proper petition under Section 34 of the Act, however, for clerical mistake the petitioner cannot suffer. The test of treating a petition as a 'non est' filing has been elaborately discussed in the order dated 30.01.2023 and the Court found that the petition filed by the petitioner herein cannot be termed as a 'non-est' filing. I see no reason to modify the said finding on the ground urged.

15. The submission of the learned counsel for the respondent that the petitioner has failed to produce a copy of the petition as was filed on 04.07.2022 is also incorrect and contrary to the record. A Copy of this petition was handed over by the learned counsel for the petitioner not only to this Court but also to the learned counsel for the respondent during the course of submissions. The Court had taken note of the copy supplied to this Court while passing the order of 30.01.2023.

16. In view of the above, this Court finds no merit in the present application. The same is dismissed.

NAVIN CHAWLA, J MARCH 6, 2023/R/Arya Signature Not Verified Digitally Signed By:SUNIL Signing Date:10.03.2023 18:15:03