Delhi High Court: In a case wherein, the issue that arose for consideration was whether the petition was liable to be dismissed, due to initial filing being non est, Manoj Kumar Ohri, J.*, opined that whether a filing was non est or not would depend upon the defects raised on a case-to-case basis, and if the defects raised were only procedural and curable, the filing could not be termed as non est. Thus, Court looked into nature of defects pointed out by the Registry on 12-07-2019 and opined that the petition filed on 10-07-2023 could not be termed as invalid or non est as the defects were procedural and curable. The Court also opined that the delay of twenty-five days in filing the petition had been satisfactorily explained by the petitioner and thus, condoned the delay.
Background
In an instant case, the petitioner had preferred the present petition impugning the arbitral award dated 15-03-2019. The present petition was filed with the Registry of this Court on 29-06-2019. However, the Registry raised certain objections that instead of filing the petition in the appropriate format, a company petition was filed. The petitioner conceded that the petition filed on 29-06-2019 was non est.
Thereafter, on 10-07-2019, the present petition was filed and the Registry again raised the defect, which the petitioner cleared on 30-07-2019. Further, another defect was pointed out on 31-07-2019, which were subsequently cleared on 01-08-2019. Later, when the defects were pointed out on 02-08-2019, they were cleared on the same day.
The petitioner claimed that the three months statutory period of the limitation prescribed under Section 34 of the Arbitration and Conciliation Act, 1996 (‘A&C Act’) was computed from the date of receipt of the impugned award i.e., from 15-03-2019 expired during the period when the Registry was closed because of summer vacations. The present petition which was filed on 10-07-2019, was within the extended period of limitation, with the delay of only 25 days, which was sufficiently explained.
However, the respondent contended that the filing of the petition on 10-07-2019 was time barred and non est and also, and delay in re-filing was required to be satisfactorily explained. The respondent also contended that as per Rule 3 of Chapter 4 of the Delhi High Court (Original Side) Rules, 2018, the defects raised by the Registry were to be necessarily removed within seven days and a total aggregate period of thirty days. Thus, the petitioner failed on both counts.
Analysis, Law, and Decision
The Court opined that Section 34 of the A&C Act prescribed the grounds for making an application to challenge an award but it did not specify any procedure for filing such application. Further, what would amount to a non est filing was not prescribed either in A&C Act or in Delhi High Court Rules. The Court opined that whether a filing was non est or not would depend upon the defects raised on a case-to-case basis, and if the defects raised were only procedural and curable, the filing could not be termed as non est.
Thus, the Court relied on ONGC v. Sai Rama Engineering Enterprise, 2023 SCC OnLine Del 63 and looked into the nature of defects pointed out by the Registry on 12-07-2019 and opined that the petition filed on 10-07-2023 could not be termed as invalid or non est as the defects were procedural and curable. The Court stated that the petitioner had further explained that the increase in number of pages in the subsequent filing was on account of filing of true-typed copies of documents as, the true-typed copies of TDS certificates alone resulted in an increase of fifty pages.
Further, with regard to the second issue that whether the petitioner had satisfactorily explained the delay in filing and re-filing the petition, the Court observed that the petitioner had explained that the petition could not be filed from 15-06-2019 to 30-06-2019, as the Registry of the Court was close due to summer vacations. The Court opined that the Registry was closed for non-urgent filing and the petitioner became aware of the objections raised by the Registry to the initial filing on 04-07-2019, after which the present petition was filed on 10-07-2019, with a delay of twenty-five days.
The Court opined that while considering an application for condonation of delay, the approach should be liberal and justice oriented. Section 34(3) of the A&C Act vested discretion in the Court to condone the delay for further period of not exceeding thirty days. However, the Court opined that the delay of twenty-five days in filing the petition had been satisfactorily explained by the petitioner and thus the Court condoned the delay.
The Court opined that Chapter 4 of the Delhi High Court (Original Side) Rules, 2018 provided that the defects pointed out by the Registry were to be removed within the stipulated period of time. The Court further opined that the filing of the petitions under Section 34 of the Act had strict timelines and the timelines were held to be inflexible beyond the total period of 120 days, provided the petitioner explained the delay of thirty days beyond the permissible time limit of ninety days.
The Court opined that in the present petition, the Registry raised the objections thrice and the objections were not of a such nature which would render the filing non est. Further, even if the registry declined the registration, the Court had the ample power to condone the delay in re-filing and this power of the Court had to be exercised liberally although cautiously to avoid delay by an unscrupulous litigant. Accordingly, the Court condoned the delay.
[Viceroy Engineering v. Smiths Detection Veecon Systems Pvt. Ltd., 2023 SCC OnLine Del 7654, decided on 04-12-2023]
*Judgment authored by- Justice Manoj Kumar Ohri
Advocates who appeared in this case :
For the Petitioner: Percival Billimoria, Senior Advocate with Shekhar Kumar, Gandharav Anand, Jasmine Damkewala, Aditya Raj, Rachita Sood, Divyam Khera, Advait Joshi and Nishtha Tyagi, Advocates;
For the Respondent: Payal Chawla and Latika Arora, Advocates
Buy Arbitration and Conciliation Act, 1996 HERE
