Delhi High Court - Orders
Union Of India vs Ms Krishna Constructions Company on 18 May, 2023
Author: Prateek Jalan
Bench: Prateek Jalan
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 369/2022 & I.As. 14345/2022, 14347/2022
UNION OF INDIA ..... Petitioner
Through: Ms. Arunima Dwivedi, Ms. Pinky
Panwar, Mr. Aakash L. Pathak,
Advocates.
versus
MS KRISHNA CONSTRUCTIONS COMPANY ..... Respondent
Through: Mr. Jai Sahai Endlaw, Mr. Vivek
Mathur, Mr. Ashish Kumar,
Advocates.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 18.05.2023 I.A. 14344/2022 (condonation of delay in filing the petition) & I.A. 14348/2022 (condonation of delay in refiling the petition)
1. The petition under Section 34 of the Arbitration and Conciliation Act, 1996 ["the Act"], is pending for issuance of notice.
2. A preliminary issue with regard to delay in filing and refiling of the petition was raised in respect of which a brief note has been filed by learned counsel for the petitioner in terms of the earlier orders of the Court. Learned counsel for the respondent has also handed up a brief note dealing with these issues.
3. I have heard Ms. Arunima Dwivedi, learned Standing Counsel for the petitioner- Union of India and Mr. Jai Sahai Endlaw, learned counsel for the respondent.
4. On the question of delay in filing, the undisputed facts are that the award was rendered on 17.12.2021 and the petition was filed on O.M.P. (COMM) 369/2022 Page 1 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 13:48:49 02.04.2022. Learned counsel for the parties accept that the period until 28.02.2022 is liable to be excluded from the period of limitation in view of the order of the Supreme Court dated 10.01.2022 in MA No. 21 of 2022 in Suo Motu Writ Petition (C) 3 of 2020. Taking this exclusion into account, the petition was originally filed within the period of limitation of three months granted by Section 34(3) of the Act.
5. The contention of Mr. Endlaw, however, is that the original filing of the petition was non est. In support of this contention, he submits that the affidavits of the petitioner served upon the respondent on 01.04.2022 and again in May 2022, were both unattested.
6. I am of the view that this ground does not render the original filing non est. A recent judgment of the Division Bench of this Court dated 09.01.2023 in Oil & Natural Gas Corporation Ltd. vs. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) & M/s Megha Engineering Infrastructure Ltd. (MEIL), FAO(OS)(COMM) 324/2019, lays down the following principles with regard to non est filing of petitions under Section 34 of the Act:
"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 O.M.P. (COMM) 369/2022 Page 2 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 13:48:49 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 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. xxxx xxxx xxxx
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."
7. In the present case, the admitted position is that the petition as originally filed bore the signature of the concerned Executive Engineer, O.M.P. (COMM) 369/2022 Page 3 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 13:48:50 CPWD as also the signature of the learned Central Government Standing Counsel. The award and the memo of appearance of learned Central Government Standing Counsel were also filed. Copy of the affidavits filed before the Court in support of the petition and I.As. 14344-47/2022 (for condonation of delay in filing, for stay of the award, for exemption and for summoning of the arbitral award, respectively) are all attested on 01.04.2022. What appears to have happened is that unattested advance copies were served upon the respondent, whereas the copies that were filed before this Court were accompanied by attested affidavits.
8. Keeping in mind the principles laid down by the Division Bench, I am of the view that this does not constitute a non est filing and the petition was, therefore, filed within the period of limitation.
9. As far as the condonation of delay in refiling is concerned, the log history placed on record shows that defects were marked several times and were rectified, although on some occasions belatedly. The nature of defects raised does not show conclusively that the same defects were being marked again and again or that the petitioner had not made an effort to remove the defects from time to time.
10. Having regard to the fact that the maximum condonable period of thirty days under Section 34 (3) of the Act does not apply to refiling of the petition, in view of the judgment of the Supreme Court in Northern Railway vs. Pioneer Publicity Corporation Pvt. Ltd., (2017) 11 SCC 234, the application for condonation of delay in refiling is allowed.
11. I.A. 14344/2022 and I.A. 14348/2022 stand disposed of. O.M.P. (COMM) 369/2022
1. Ms. Arunima Dwivedi, learned Standing Counsel for the petitioner, O.M.P. (COMM) 369/2022 Page 4 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 13:48:50 states that she has been recently entrusted with the brief. She seeks some time to argue the petition.
2. She is requested to file a written submission which conforms to the directions in paragraph 2(a) of the order dated 15.12.2022.
3. List on 14.09.2023.
PRATEEK JALAN, J MAY 18, 2023 "Bhupi"/ O.M.P. (COMM) 369/2022 Page 5 of 5 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 24/09/2023 at 13:48:50