Delhi High Court - Orders
Kailash Chand Gian Chand Jain vs Union Of India Through Ministry Of ... on 6 September, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 373/2022 & I.As. 14388-14390/2022
KAILASH CHAND GIAN CHAND JAIN
..... Petitioner
Through: Mr. R. Aditya and Mr. Rahul Kumar,
Advs.
versus
UNION OF INDIA THROUGH MINISTRY OF RAILWAYS
..... Respondent
Through: Ms. Arunima Dwivedi, CGSC with
Mr. Prashant Rawat, GP, Ms. Ashi
Sharma and Mr. Ved Prakash, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 06.09.2022 I.A. 14388/2022 (for exemption) Exemption allowed subject to all just exceptions. Application stands disposed of.
O.M.P. (COMM) 373/2022 & I.As. 14389-14390/2022
1. This petition has been filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 ('Act of 1996', for short) challenging the award dated March 03, 2022 to the extent, the claims of the petitioner have been declined by the learned Arbitrator.
2. It is the conceded case of the petitioner that the impugned arbitral award was rendered by the learned Arbitrator on February 15, 2022. The petitioner received the same on February 21, 2022. On March 03, 2022 the arbitral award was corrected by the learned Arbitrator which the petitioner received on March 09, 2022. It is also the conceded case of the petitioner Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 that the present petition has been filed on June 01, 2022; refiled on July 27, 2022, August 6, 2022 and finally on September 02, 2022.
3. The present petition is also accompanied by an application seeking condonation of delay of 66 days in filing the petition and another application for condonation of delay of 30 days in refiling the petition. Relying upon the application seeking condonation of delay of 66 days the learned counsel for the petitioner states that the petition could not be filed within the period of limitation because of the precarious health condition of the petitioner, which prevented him from signing the petition.
4. In paragraphs 13, 14 and 15 of the application the petitioner has summed up his case seeking condonation of delay in the following manner:-
"13. That for the entire period from 24.03.2022 till 01.09.2022 including the period of 01.06.2022 when the Arbitral appeal was filed,07.06.2022,27.07.2022 when petition was refiled, 28.07 .2022 and 08.08.2022 when objections were raised by the learned registry, there had been no major improvement in the applicant's health condition. That therefore during the ensuing period when objections were raised by the learned registry for the first time on 07.06.2022 and subsequently on 28.07.2022, 08.08.2022 the same could not be removed within the stipulated time period due to factors beyond the control of the Applicant.
14. That further therefore in these circumstances under considerable difficulty refiling was done on 27.07.2022 however new objections were again raised by the learned registry on 28.07.2022. Attempt was made to remove Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 some of the objections on 06.08.2022 however the petition could not be filed as there had been a further deterioration of the Applicants health from first week of August. That amongst other objections ,objections were raised to the effect that all documents filed by the applicant to be signed by the applicant and marked as true copy.
15. That there is a deterioration in the Applicants Benin essential tremor in both the hands since first week of august and from 01.08.2022 the Applicants back pain aggravated making everyday tasks a challenge, the applicant has significant difficulty in walking, his mobility considerably hampered. Limiting his ability to move, walk around. The applicant has difficulty in sitting in one position. The applicants cholesterol levels also gone up. Therefore because of the Applicants deteriorated health condition the refiling of the petition could not be done within stipulated time. The Applicants health had deteriorated, he was not in position to sign all the documents and therefore it took the Applicant time to sign all the document as signatures on the documents would require the Applicant to sit steady on a table chair which is otherwise considerably difficult for the Applicant taking into account his back condition and pain coupled with his condition of benine tremor in both the hands and old age and health ailments of the Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 applicant have also aggravated as enumerated above. That hundreads of documents had to be signed by the Applicant."
5. On the first call, noting the fact that the filing of the petition is delayed and the applications seeking condonation of delay in filing and re- filing have been filed, I thought it appropriate to call for the filing history of the case from the Registry. The same has been placed before me. The case history shows that the petition was filed by the petitioner on June 01, 2022. On June 07, 2022; defects were pointed out by the Registry, some of which were cleared and the petition re-filed on July 27, 2022. Be that as it may, pursuant to refiling of the petition on July 27, 2022, the defects were again pointed out by the Registry. The same were cleared when the petition was re-filed on August 06, 2022. Again defects were pointed out. It was again re-filed on September 2, 2022.
6. The petitioner himself in the application seeking condonation of delay, has stated that he received the copy of the impugned award on March 09, 2022. The petitioner was required to file the petition on or before June 09, 2022 (which was during summer vacation). Even if the petition is considered within the period of limitation, the objections which were pointed out by the Registry were removed only on September 02, 2022, that is much beyond the period of limitation period of three months and even 30 days thereafter, which period expired on July 9, 2022.
7. I find the objections put by the Registry on June 7, 2022, July 28, 2022, August 8, 2022 are as under:
Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:118. The defects as pointed out by the Registry and noted above includes, non filing of the power of attorney by the petitioner / Advocate, non filing of the affidavit in support of the application, non filing of the memo of parties non-filing of the court fees etc. Some of the objections that were pointed out by the Registry were fundamental to the filing of a proper petition which clearly demonstrate the filing of the petition can hardly be considered as a proper filing.
Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:119. This Court in ONGC v. Joint Venture of Sai Ram Engineering Enterprises, 2019 SCC OnLine Del 10456, has held as under:
"43. The common thread that runs in the aforesaid judgments is that „non-est‟ filing cannot stop limitation and cannot be a ground to condone delay. Thus, for a petition filed under Section 34 of the Act to be termed as a „properly‟ filed petition must fulfill certain basic parameters such as:
a) Each page of the Petition as well as the last page should be signed by the party and the Advocate;
b) Vakalatnama should be signed by the party and the Advocate and the signatures of the party must be identified by the Advocate;
c) Statement of Truth/Affidavit should be signed by the party and attested by the Oath Commissioner;
44. This in my view is the minimum threshold that should be crossed before the petition is filed and can be treated as a petition in the eyes of law. The rationale behind insisting on these fundamental compliances to be observed while filing a petition, is not far to seek. Vakalatnama is an authority which authorizes an Advocate to act on behalf of a party as a power of attorney and to carry out certain acts on his behalf. Therefore, the vakalatnama is the first step and a precursor to the preparation of a petition. The Statement of Truth accompanying a petition or an application is sworn by the deponent who states on oath that the contents of the accompanying petition have been drafted under his Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 instructions and are true and correct to his knowledge or belief. Surely, this affidavit must be signed after the petition is made and the attestation must also be done on the affidavit when the petition is filed. This is also a requirement under the Commercial Courts Act, 2015. The petition needs to be signed by the Advocate as well as the party before the same is filed as this would indicate that both have read the petition and there is authenticity attached to the pages filed in the Registry. If these basic documents are not annexed or the signatures as required are absent, one can only term the documents which are filed as a „bunch of papers‟ and not a petition.
45. In several cases, of course, the defects may only be perfunctory and may not affect the filing of the petition, e.g. the documents may be illegible or the margins may not be as per the required standards etc.
46. These defects are certainly curable and if the petition is filed with such like defects, it cannot be termed as a nonest petition.
47. Examined in the light of the above-mentioned judgments and the provisions of Section 34(3) of the Act, the filing of the petition on 20.02.2019 was a non-est filing and cannot stop limitation as clearly even the affidavits were not signed and not attested besides a few other objections.
48. When the petition was filed on the 22.02.2019 at 4 p.m., the defects were marked during the checking on 23.02.2019 at 11.24 a.m. Only 10 pages of Index was refiled. The Code Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 numbers of the defects marked shows that when the petition was refiled on 22.02.2019 except for defect bearing „Code No. 214‟, none of the earlier defects marked on the 21.02.2019 and 22.02.2019 were cleared. The defects marked qua the filing of 22.02.2019 were (a) Caveat report not obtained; (b) Petition/applications were neither signed nor dated; (c) Court fees was short/missing; (d) the vakalatnama was not duly executed lacking the Court fees and signatures etc. of the Advocates; (e) Statement of Truth was not filed as per the format under the Commercial Courts Act; (f) The Memo of parties did not contain sufficient details like the parentage, mobile number, email address etc.; (g) Advance copy was not served under the provisions of Section 34(5) of the Act. This was apart from several other defects which were marked earlier but not cured by the petitioner. Thus, even this filing can be only termed as „non-est‟ filing."
10. In view of the above judgment in the given facts, this Court is of the view that the petition has been effectively filed on September 02, 2022 which is beyond the period of three months and 30 days, that is the outer limit for filing a petition under Section 34 of the Act of 1996. Hence, it must be held that in view of the law laid down by the Supreme Court in Union of India v. Popular Construction Co. 2001 (8) SCC 470 holding that there is no power with the Court to condone the delay in filing the petition under Section 34 of the Act of 1996, if the period, referred above has expired, the petition has to be held not maintainable. The relevant paragraphs of the Judgment are reproduced as under:
Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11"3. The award in this case was made by the arbitrator on 29- 8-1998. Under the impression that the Arbitration Act, 1940 applied, the arbitrator forwarded the original award to the appellant with a request to file the award in the High Court of Bombay so that a decree could be passed in terms of the award under the provisions of the Arbitration Act, 1940. The award was accordingly filed by the appellant in the Bombay High Court on 29-3-1999. The appellant filed an application challenging the award on 19-4-1999 under Section 30 read with Section 16 of the Arbitration Act, 1940. Subsequently, the application was amended by inserting the words "Arbitration and Conciliation Act, 1996" in place of "Arbitration Act, 1940". The application was dismissed by the learned Single Judge on 26-10-1999 on the ground that it was barred by limitation under Section 34 of the 1996 Act. The Division Bench rejected the appeal and upheld the findings of the learned Single Judge.
xxx xxx xxx
12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.
13. Apart from the language, "express exclusion" may follow from the scheme and object of the special or local law:
"[E]ven in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
[(1974) 2 SCC 133] (SCC p. 146, para 17)
14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need "to minimise the supervisory role of courts in the arbitral process" [ Para 4(v) of the Statement of Objects and Reasons of the Arbitration and Conciliation Act, 1996] . This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms:
"5. Extent of judicial intervention.--Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 authority shall intervene except where so provided in this Part."
15. The "Part" referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act.
16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application "in accordance with" that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court". This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow"
(Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act."
11. The reliance placed by counsel for the petitioner on the judgment of the Supreme Court in the case of State of Uttar Pradesh & Ors. v. M/s Satish Chand Shivhare & Brothers, SLP No. 5301/2022 decided on April 04, 2022, is concerned, the same has no applicability inasmuch as in the said case the appellant had filed an application seeking condonation of delay in filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996, unlike the case in hand, which is a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 where a specific period of limitation is provided, whereas for an appeal under Section 37, there is no specific period of limitation. The delay for good, valid reasons can be condoned. It was in those facts that the Supreme Court in paragraph 17 held as under:-
"17. The explanation as given in the affidavit in support of the application for condonation of delay filed by the Petitioners in the High Court does not make out sufficient cause of condonation of the inordinate delay of 337 days in filing the appeal under Section 37 of the Arbitration and Conciliation Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11 Act. The law of limitation binds everybody including the Government. The usual explanation of red tapism, pushing to files and the rigmarole of procedures cannot be accepted as sufficient cause. The Government Departments are under an obligation to exercise due diligence to ensure that their right to initiate legal proceedings is not extinguished by operation of the law of limitation. A different yardstick for condonation of delay cannot be laid down because the government is involved."
12. Hence, the applications seeking condonation of delay in filing and re- filing the petition are rejected. Consequently, the petition under Section 34 is also rejected as not maintainable.
V. KAMESWAR RAO, J.
SEPTEMBER 6, 2022/ds/aky Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:15.09.2022 10:01:11