Delhi High Court
Oil And Natural Gas Corporation ... vs Joint Venture Of M/S Sai Rama ... on 1 October, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 03.09.2019
% Pronounced on: 01.10.2019
+ O.M.P. (COMM) 97/2019
OIL AND NATURAL GAS CORPORATION LTD.
..... Petitioner
Through: Mr. Amitesh Mishra, Mr. Gunjan
Arora, Advocates
versus
JOINT VENTURE OF M/S SAI RAMA ENGINEERING
ENTERPRISES (SREE) & M/S MEGHA ENGINEERING &
INFRASTRUCTURE LIMITED (MEIL)
..... Respondent
Through: Mr. Purvesh Buttan, Mr. Fahad
Imtiaz, Advocates
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J.
I.A. No. 4451/2019 (Delay 27 days in filing)
1. This is an application seeking condonation of delay of 27 days in
filing the petition under Section 34 of the Arbitration and Conciliation
Act, 1996 („Act‟) challenging an Award dated 23.10.2018 of the
Arbitral Tribunal adjudicating the disputes between the parties.
2. When the petition was listed on 13.03.2019, the respondent had raised
a preliminary objection that the petition is barred by limitation as
provided under Section 34(3) of the Act. He submitted that various
objections were raised by the Registry on repeated filing of the
petition and submitted that the petition can be considered to have been
filed for the first time only on 25.02.2019, which is beyond the
extended period of 30 days, after the three months period prescribed
under Section 34(3) of the Act. Learned senior counsel of the
petitioner had sought time to file an additional affidavit explaining the
refiling as well as making other submissions on this preliminary
objection.
3. On 10.04.2019, this Court had, after perusing the affidavit dated
18.03.2019 filed by the petitioner, noted in its order the case set up by
the petitioner, which was that though he had filed the correct petition
along with affidavit and vakalatnama on 23.01.2019, but by mistake,
CD of another case was filed. The Court had then directed the
petitioner to file on record, a copy of the petition that was stated to be
filed on 23.01.2019, along with copies of the affidavit and the
Vakalatnama claimed to have been signed by the authorized
representative of the petitioner on 21.01.2019.
4. However, when the matter came up on 01.05.2019, counsel for the
petitioner submitted that the documents directed to be filed on
10.04.2019 had been destroyed and that the petitioner did not want to
file an affidavit on this aspect.
5. On 11.07.2019, petitioner prayed for time to file an additional
affidavit explaining the delay in filing/refiling. Respondent was
permitted to file a reply thereto.
6. Matter was taken up for hearing on the application for condonation of
delay on 03.09.2019, with the consent of the parties.
7. Both parties have filed their written submissions on the aspect of delay
and have been heard at length.
8. Learned counsel for the petitioner submits that Section 34(3) of the
Act provides a limitation period of three months from the date of
receipt of the Arbitral award by a party. However, the Courts are
empowered to condone a delay not exceeding 30 days, if „sufficient
cause‟ is shown for the delay. He submits that in the instant case, the
award was received by the petitioner on 23.10.2018. As per Section
34(3) of the Act, the time period of three months expired on
23.01.2019 and the extended period of 30 days expired on 22.02.2019.
He further submitted that the petitioner is entitled to cure the defects
pointed out by the Registry, if any, and re-file within a time not
exceeding 7 days at a time and 30 days in aggregate, from the date of
marking of the defects under Rule 3 of Chapter IV of the Notification
No. 722 of the Delhi High Court dated 16.10.2018, published in the
Delhi Gazette on 18.10.2018. The submission is that assuming, for
the sake of arguments, that the filing on 20.02.2019 is considered to be
the date of „first‟ filing, the same would still be within the 30 days
extended period, beyond the three months statutory period prescribed
under Section 34(3) of the Act. The petitioner then had time till
22.03.2019 under the Delhi High Court Rules, to cure the defects
pointed out by the Registry.
9. The learned counsel next submitted that on 22.02.2019, refiling of the
master index was done by the petitioner‟s counsel at 4 P.M. The main
petition was not uploaded on that day by the Registry since it was past
4 P.M. and the full file running into more than 6300 pages was
uploaded on the next day i.e. 23.02.2019.
10. Being confronted with a date of 25.02.2019 on the index, learned
counsel explained that since refiling was done on 25.02.2019, the date
was changed as per the practice followed. Whenever the documents
are refiled, the Registry insists on putting the date of re-filing on the
Index. It is for this reason that there are different dates on the petition
and applications. Finally, by 25.2.2019, all the minor defects were
cleared and petition was marked for listing. He, thus, submits that
petition was filed within the 30 days extended period under Proviso to
Section 34(3) of the Act and the delay in re-filing deserves to be
condoned.
11. Learned counsel contends that this Court as well as the Apex Court
has in a catena of judgments such as Uday Shankar Tariyar Vs.Ram
Kalewar Prasad Singh & Anr. (2006) 1 SCC 75, Vidyawati Gupta &
Ors. Vs. Bhakti Hari Nayak & Ors (2006) 2 SCC 777, Alka Kasana
Vs. Indian Institute of Technology (2015) SCC Online Del 11455,
held that Rules of procedure are made to further the cause of justice
and not to prove a hinderance thereto.
12. Per contra learned counsel for the respondent has vehemently
opposed the condonation of delay in filing/re-filing the petition on
several grounds.
13. Learned counsel submitted that the award was received by the
petitioner on 23.10.2018. Excluding the date of receipt of the award,
the 3 months period ended on 23.01.2019 and excluding the last day of
the 3 months, the 30 days period ended on 22.02.2019. At the outset it
is contended that vide order dated 10.04.2019, copy of the petition
claimed to be filed on 23.01.2019, was directed to be filed along with
copies of affidavits and Vakalatnama. Subsequently, it was stated by
the petitioner that these documents were destroyed. Hence, the
petitioner is unable to prove that any petition was filed on the said
date. The submission was that one fails to understand what was the
occasion/necessity to destroy a signed Vakalatnama and signed pages
of the petition as well as the affidavits.
14. Learned counsel further submitted that from paragraphs 16 and 17 of
the affidavit filed by Mr. Sudhish Kumar, it appears that the
framework of the petition was changed and this necessitated fresh
signing of all documents including vakalatnama and affidavits on
19.02.2019 and that is the reason why the affidavits were attested
later. However, according to him, even this submission of the
petitioner is false, as neither the petition nor the applications are dated
19.02.2019. The applications filed along with the main petition bear
the date of 21.02.2019 and the supporting affidavits to the applications
are dated 20.02.2019. Further, while the main petition is dated
22.02.2019, the supporting affidavit and the supporting statement of
truth are dated 20.02.2019, which clearly shows that when the
affidavits were attested, the applications and the petition were non-
existant. Learned counsel has drawn the attention of this Court to
pages 87 to 92 and the applications for stay and exemptions with
supporting affidavits, to point out the discrepancy in the dates.
15. Learned counsel, in support of this contention, has placed reliance on
a judgment in the case of INX News Pvt. Ltd. Vs. Pier One
Construction Pvt. Ltd., reported as 2013 SCC OnLine Del 4508, para
9 of which is reproduced as under:
"...When petitions are returned the counsels involved are
not entitled to change the framework of the petitions.
The petitions are returned only for removing objections
pointed out by the registry. If the amendments are
required to be made, the correct course would be to
move the concerned court after the petition is listed in
court, so that steps are taken in accordance with law, to
incorporate the necessary amendments."
16. Learned counsel vehemently points out that the falsity of the statement
in the affidavit of Mr. Sudhish Kumar could also be seen from the fact
that notice of motion, urgent application and Memo of Parties are
dated 21.02.2019 and thus none of these documents including the stay
and exemption applications were prepared on 19.2.2019, as falsely
stated in the affidavit except for the Vakalatmana which is dated
19.02.2019. Learned counsel further submits that the petitioner has all
through been blaming the clerk for the filing, in the manner in which it
has been done, whereas as per the Delhi High Court Rules, it is the
petitioner or his duly authorized agent or an Advocate who is
permitted to file and is responsible for the same.
17. The next contention of the counsel for respondent is that no report of
caveat was taken until 25.02.2019, which is also against Rule 3 of the
Delhi High Court Rules and copy of the petition was also not served
on the respondent.
18. The next contention is that the stand of the petitioner that even if
20.02.2019 is taken as a date of „fresh‟ filing, the filing of the petition
is within the extended period of 30 days, is also not sustainable in law.
He submits that on 21.02.2019, the defects pointed out by the Registry
were that (i) the petition was not properly signed ; (ii) the affidavits
were not signed and not attested; ;(iii) Vakalatnama not filed; (iv)
Court fees not paid and (vi) Caveat report not taken and no copy
served on the respondent. Hence even on 20.02.2019 filing was not
„proper‟ and cannot be construed as filing, in the eyes of law.
19. The respondent has, in his support, relied upon the following
judgments:
(i) SKS Power Generation (Chhattisgarh) Ltd. Vs. ISC Projects
Private Limited (in O.M.P. (COMM) 132/2019 Date of decision
3.4.2019).
(ii) Sravanthi Infratech Private Limited Vs. Green Power
Equipment (China) Co. Ltd. (in O.M.P.(COMM) 470/2015
Date of decision 19.10.2016).
(iii) Ahluwalia Contracts (India) Ltd. Vs. Housing and Urban
Development Corporation (in O.M.P. 1122/2013 Date of
decision 4.4.2016).
(iv) INX News Pvt. Ltd. (supra).
(v) Reliance is also placed on the relevant portions of the Delhi
High Court (Original Side) Rules, 2018.
20. Three crucial issues arise for consideration of this Court from the
above narrative:
a) Whether the petition is filed within the statutory period of 3
months prescribed under section 34 (3) of the Act.
b) In the alternate, whether the petition was filed within the
extended period of 30 days under the Proviso.
c) Whether the filing in the first or the second instance is a „non-
est‟ filing.
21. To answer these questions, firstly the statutory provisions and the law
would have to be examined. The statutory period for filing an
application for setting aside of the Award is provided in sub-Section
(3) of Section 34 of the Act, which reads as under:
"(3) An application for setting aside may not be made
after three months have elapsed from the date on which
the party making that application had received the
arbitral award or, if a request had been made under
section 33, from the date on which that request had been
disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant
was prevented by sufficient cause from making the
application within the said period of three months it may
entertain the application within a further period of thirty
days, but not thereafter."
22. Reading of the Section 34(3) of the Act, leaves no manner of doubt
that the period of limitation is three months. If the objections are filed
beyond three months, then the delay in filing can be condoned upto a
maximum period of 30 days and no more. Condonation of delay in
the extended period of 30 days, is at the discretion of the Court,
provided, the party satisfies the Court that there was „sufficient cause‟
for the delay. Delay in initial filing, beyond 30 days cannot be
condoned, even for one day.
23. The Apex Court in the case of Union of India vs. M/s. Popular
Construction 2001 (8) SCC 471 has clearly held that the legislative
intent of providing a strict and non-flexible limitation period should
not be defeated by condoning the delay, without „sufficient cause‟.
The relevant para is as under:
"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 minimize the supervisory role of
courts in the arbitral process". This objective has found
expression in Section 5 of the Act which prescribes the
extent of judicial intervention in no uncertain times:
"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 authority shall
intervene except where so provided in this Part."
24. In the case of Simplex Infrastructure Limited vs. Union of India
2019 (2) SCC 455, the Apex Court, relying on the judgment in the
case of Popular construction (supra) interpreted the words "but not
thereafter‟ occurring in Section 34(3) of the Act, and emphasized the
importance of limitation in filing an application under Section 34 and
held that not a day beyond 120 days from the date of receipt of the
Award can be condoned by the Court.
25. A reading of these judgments is a pointer to the fact that while in
condonation of delay, the Courts have been generally liberal, but when
it comes to Section 34(3) of the Act, the limitation period is inelastic
and meant to be strictly followed. Therefore, under this jurisdiction,
the applicant would have to pass a higher threshold of showing that his
conduct was of due diligence and dispatch and a casual explanation
for delay cannot and should not be accepted. The applicant has to
show not only due diligence in filing within the 30 days period, but
more importantly, "sufficient cause" has to be shown, which
prevented the applicant for 3 months in filing the petition.
26. The stand of the petitioner as reflected in the initial application filed
by the petitioner for condonation of delay, together with the various
affidavits subsequently filed, pursuant to the directions of this Court,
can be summarized as under:
Stand taken in I.A. No. 4451/2019 (initial application for condonation of
delay)
Award dated 23.10.2018 received by the petitioner on
23.10.2018. Three months expired on 23.01.2019.
The Petition prepared, signed by the authorized representative.
Signed copy together with signed and notarized affidavit
handed over for filing in the evening of 21.01.2019. These
were about 6000 pages in all.
Filed electronically on 23.01.2019. Thus, petition filed within
period of limitation.
The Registry raised objection on 29.01.2019. Discovered by the
petitioner that wrong file/CD uploaded, relating to some other
subject matter.
Counting from 29.01.2019, the thirty days period ended on
28.02.2019, as per Delhi High Court Rules.
Petition refiled on 25.02.2019. Thus within thirty days.
The petition initially filed on 23.1.2019 within limitation,
Registry did not direct the petitioner to file an application
seeking condonation of delay.
On 13.03.2019, the respondent took objection before the Court
qua certain defects.
The petition re-filed on 20.02.2019 after getting fresh affidavits
signed and attested on 20.02.2019. The Court fees was also
purchased on 20.02.2019 and filed on the same day.
Without prejudice that the initial filing was done on 23.01.2019,
even if 20.02.2019 is taken to be the date of „Fresh‟ filing, the
filing would be within the extended period of thirty days
beyond the three months statutory period. Extended time
expired on 24.02.2019, which was a Sunday, and therefore, the
limitation would expire on 25.02.2019. Thus, there is a delay of
27 days in filing the petition taking the initial date of filing to be
20.02.2019.
II. Stand in the affidavit dated 19.03.2019 filed pursuant to order
dated 13.03.2019
The finalized petition together with signed and attested
affidavits handed over to the clerk of petitioner‟s counsel on
21.01.2019 for filing.
The Regular clerk of the petitioner‟s counsel was on leave. The
petition was filed for the first time on 23.01.2019. An outside
agency was engaged to do the electronic filing. The electronic
file on a CD was supplied to a person, namely, Ram who was a
clerk.
A diary number was generated and an email was received
acknowledging the filing on 23.01.2019.
On or around 29.01.2019, the uploaded document was checked
by the Registry and objections were marked. It was learnt that
the CD pertained to some other matter.
On 04.02.2019, fresh CD filed, but on 05.02.2019, it was
realized it was a CD relating to another matter between the
same parties. Some other defects were raised by the Registry,
such as paragraphs relating to territorial and pecuniary
jurisdiction were missing, Court fees was not affixed, signatures
of the petitioner or the petitioner‟s authorized representative
were not there on the Vakalatnama, certain documents which
formed a part of the arbitral record were not filed, etc.
On 19.02.2019, fresh Vakalatnama signed and the signatures
were identified. Some pages in the petition and the applications
were changed, after modification. Being evening time, fresh
affidavits could not be signed or attested and the same were
signed and attested on 20.02.2019.
On 20.02.2019, requisite Court fees was purchased and affixed
on the petition and the Vakalatnama. Finally file uploaded and
refiled on 20.02.2019.
An email pointing out certain defects was received by the
petitioner‟s counsel on 21.02.2019. The defects pertaining to
line spacing, file volumes, underlining etc. were cleared and
refiling was done on 22.02.2019.
On 23.02.2019, some more defects were pointed out and after
clearing the defects, the petition was refiled on the same day.
Vide email dated 23.02.2019, again defects were marked by the
Registry. After removing the same, the petition was refiled on
25.02.2019.
27. The subsequent three Affidavits are verbatim narrations of the
application filed earlier.
28. The main contention of the learned counsel today, before this Court is
that even if it is assumed for the sake of arguments that the filing of
the petition on 23rd January, 2019 was not a proper filing, even then
the petition was filed without any defects on 20.02.2019 and even if
this is taken as the date of „fresh‟ filing, the petition would be within a
period of 30 days, after expiry of the statutory period of three months.
In any case all the major defects were cleared by 22.2.2019 which was
the last day of the 30 days extended period and thus petitioner is
entitled to condonation of delay. He submits that the filing being
within the 30 days period can be condoned by the Court as the
petitioner has been able to show „sufficient cause‟ for the delay.
29. Learned counsel for the respondent on the other hand submits that the
petitioner had initially filed only a bunch of papers and the objections
put by the Registry would evidence that the affidavits were not signed
and attested. The Vakalatnama was not filed initially. The Caveat
Report was never taken, the pleadings were not signed and even the
Court fee was deficient. He has vehemently argued that the petitioner
has changed dates on pleadings on every successive filing. The dates
of the affidavits are prior to the dates on the petition and the
applications. He thus submits that the manner in which the petitioner
has filed and refiled is not deserving of condonation. He further
submits that no cause let alone sufficient cause has been shown for the
delay within the statutory period of three months and even thereafter
between the period 05.02.2019 to 20.02.2019, there is no explanation
at all as to what steps were being taken by the petitioner towards
filing/re-filing. This conduct deserves to be deprecated as even earlier,
having stated that he would file a copy of the initial petition filed,
which he had claimed to have filed on 23.01.2019, the petitioner
subsequently took a stand that the documents were destroyed.
Learned counsel for the respondent thus submits that the delay should
not be condoned by the Court in the facts and circumstances of this
case.
30. The learned counsel also argues that it is not open for the petitioner to
even contend that 20.02.2019 should be treated as the date of the
initial filing. This was not the stand of the petitioner initially and is
only an afterthought and a cover up, after he could not prove that any
petition was filed on 23.1.2019.
31. I have heard the parties and given my thoughtful consideration to the
pleas raised before me.
32. While dealing with the issue of condonation of delay in filing and re-
filing in a matter pertaining to an application under Section 34 of the
Act, strict and non-flexible limitation period has to be followed and
condonation in not a matter of right.
33. In the present case, I find that the petitioner has been taking shifting
stands. Initially, the main plank of the petitioner‟s stand was that the
filing had been done on 23.01.2019 and was therefore, within the
statutory period of three months. Confronted by the respondent in the
Court, when the petitioner filed an application for the first time
seeking condonation of delay, it was explained that some wrong CDs
had been inadvertently uploaded on 23.01.2019 and the stand shifted
to submitting that 20.02.2019 should be treated as a date of „fresh‟
filing and this would be within the thirty days period beyond the initial
three months and the delay can be condoned.
34. In my view, this shifting of stand by the petitioner particularly in the
background of the facts of this case which I will detail hereinafter and
the manner in which the filing and refiling has been done in this case
definitely deserves to be deprecated.
35. I would first deal with the claim of the petitioner that the petition was
initially filed on 23.01.2019. Strangely it is the petitioner‟s own stand
in the affidavit filed by Mr. Sudhish Kumar and the written
submissions, that the filing on 23.01.2019 may not be considered as a
„proper filing in the eyes of law‟. The relevant paragraphs from the
written submissions and the affidavit are extracted hereinunder:
"The Petitioner has filed the petition under section 34 of
the Arbitration and Conciliation Act, 1996 ("Act")
against the award dated 23.10.2018 on 23.01.2019.
However, and without prejudice, due to certain
circumstance narrated in detail in the accompanying
application for Condonation of delay (I.A. No. 4451 of
2019) and the affidavit filed by Mr. Sudhish Kumar
[DGM (Mechanial)] at ONGC, the filing on 23.01.2019
may not be considered as a "proper" filing in the eyes of
law."
36. In view of this admission made by the petitioner, it is not open for the
petitioner to argue that the initial date of filing of the petition should
be taken as 23.01.2019 or that the petition is within the limitation
period of three months prescribed under Section 34(3) of the Act. In
any case petitioner could not establish that any petition was filed on
23.1.2019. Despite undertaking to the Court, copies of the documents
filed on 23.1.2019 were not filed and the stand was that they were
destroyed. Why a signed vakalatnama and signed affidavits were
destroyed remains unanswered. The claim that wrong CDs were
inadvertently loaded does not advance the case of the petitioner at all.
Thus, there being no filing on 23.1.2019, the present petition in my
view is not filed within the limitation period of three months under
Section 34(3) of the Act.
37. As regards the next submission of the petitioner that the date of
20.02.2019 should be taken as the date of „fresh‟ filing, the log-in
report regarding the status of filing and the defects marked by the
Registry with respect to the filing on 20.02.2019, is as under:
38. Report shows that while marking defects, the Registry uses some
Code Numbers, which are indicative of the nature of the defects.
These Code Numbers are as per the list maintained by the Listing
Branch. The position which emerges with respect to the „filing‟ on
20.02.2019 is as under:
"21.02.2019- 10:45 AM
Defects: [3, 4, 8, 9, 201, 202, 203, 207, 209, 210, 214, 215,
218, 221, 227, 231, 234, 237, 245, 260, 265, 294, 304, 305,
336, 337]
OTHER DEFECTS: TOTAL 3613 PAGES FILED. CAVEAT
REPORT BE OBTAINED. COURT FEE BE PAID.
AFFIDAVITS NOT ATTESTED NOT SIGNED. PLEASE
CORRECT THE BOOKMARKING. VOLUMES OF
DOCUMENTS BE MADE. IN ADDITION TO THE E-
FILING, IT IS MANDATORY TO FILE HARD COPIES OF
THE FRESH MATTERS FILED UNDER SECTION 9,11
AND 34 OF THE ACT WITH EFFECT FROM 22.10.2018.
ORIENTATION OF DOCUMENTS BE CORRECT.
PLEASE CORRECT THE BOOKMARKING. ALL INDEXES
BE PAGINATED."
39. Learned counsel for the respondent has also pointed out that the
petition was dated 22.02.2019 and the application for stay as well as
for exemption are dated 21.02.2019 while the affidavits are dated
20.2.2019. Though, the affidavits bear a date of 20.02.2019, but as
per the report of the Registry, they were not signed or attested on the
said date. Petitioner has shown that the affidavit is attested on
20.2.2019, but the report of the Registry is otherwise. How then the
attestation date is 20.2.2019, remains a mystery as the counsel for the
petitioner could not explain the defect pointed out by the Registry on
this aspect. What emerges from this is that when the petition was filed
on the 20.02.2019, the petition was unsupported by an affidavit since
the affidavit was unsigned and unattested. Thus, it cannot be said that
the petition was properly filed. The date of the affidavit being prior to
the dates on the petition and the applications also leaves much to be
said on this issue. When a supporting affidavit is filed the deponent
swears that he has read and understood the contents of a petition or an
application which have been drafted under his instructions. Surely,
such an affidavit cannot be prepared or signed or attested prior to the
preparation of a petition or an application.
40. Coming now to the filing/re-filing on 22.02.2019, which was
admittedly the last day of the extended period of 30 days under
Section 34(3), the defects as marked on 23.02.2019, were as under:
"23.02.2019 - 11.24 AM.
Defects: [3, 4, 8, 9, 201, 202, 203, 207, 209, 210, 214, 215,
218, 221, 227, 231, 234, 237, 245, 260, 265, 294, 304, 305,
336, 337] „Not cured'
Description of any other defects: TOTAL 10 PAGES OF
INDEX FILED. EXCEPT INDEX NOTHING HAS BEEN
FILED.
41. Thus, insofar as the re-filing on 22.02.2019 is concerned, the report of
the Registry shows that the petition was re-filed on 22.02.2019 at 4
p.m. The petition was checked for defects on 23.02.2019 and it was
noted that 10 pages of an index was filed afresh but what is
significant is that the defects that had been marked on the earlier
dates had not been cured. The petition was taken from objections on
the same date and re-filed on 23.02.2019 itself. Again on re-filing
nearly the same defects had been marked. It was only when the
petition was re-filed on 25.02.2019 that it was finally cleared for
listing before the Court. Thus, even the filing on 22.02.2019, was a
„non-est‟ filing.
42. It is now time to refer to the law as laid down by various Courts on the
issue of 'non-est' filing:
a) In Ashok Kumar Parmar vs. D.C. Sankhla, 1995 RLR 85,, a
Co-ordinate Bench of this Court in the context of Rules 1 and 2
of Chapter IX of Delhi High Court (Original Side) Rules- 1967
held as under:
"Looking to the language of the Rules framed by
Delhi High Court, it appears that the emphasis is
on the nature of defects found in the plaint. If the
defects are of such character as would render a
plaint, a non-plaint in the eye of law, then the date
of presentation would be the date of re-filing after
removal of defects. If the defects are formal or
ancillary in nature not effecting the validity of the
plaint, the date of presentation would be the date
of original presentation for the purpose of
calculating the limitation for filing the suit."
Aforesaid view was upheld by the Division Bench in appeal,
reported in 1995(1) AD (Delhi) 753.
b) In Durga Construction (Supra), a Division Bench of this Court
held:
"17. The cases of delay in re-filing are different from
cases of delay in filing inasmuch as, in such cases the
party has already evinced its intention to take recourse
to the remedies available in courts and has also taken
steps in this regard. It cannot be, thus, assumed that the
party has given up his rights to avail legal remedies.
However, in certain cases where the petitions or
applications filed by a party are so hopelessly
inadequate and insufficient or contain defects which are
fundamental to the institution of the proceedings, then in
such cases the filing done by the party would be
considered non est and of no consequence. In such
cases, the party cannot be given the benefit of the initial
filing and the date on which the defects are cured, would
have to be considered as the date of the initial filing...."
c) In Sravanthi Infratech Pvt. Ltd. (supra), it was held:
"12. .... Significantly it is pointed out that on 10th
July, 2015 when the petition was first it contained
only 66 pages whereas when it was refiled on 18th
August, 2015 it consisted 859 pages.
13. Having considered the submissions of the
learned counsel for the parties, the Court is of the
view that although the number of days delay in
filing the petition was 17 days, even if the date of
receipt is taken as 24th March, 2015 as claimed by
the Petitioner what was filed could not be
considered as a petition. What was filed was a
petition without a vakalatnama, without an
affidavit, without signature of the party on the
petition. These are fatal defects and what was filed
on 10th July, 2015 can hardly be considered a
proper filing of the petition with there being no
documents, no vakalatnama, no application for
condonation of delay, no affidavit, no authority.
17. The other strange phenomena is that when the
petition was filed on 10th July, 2015 it was without
any affidavit of the Petitioner. Later when the
defects were cured and the petition was re-filed on
18th August 2015, the date of the supporting
affidavit and the signing of the petition by the
Petitioner was shown as 10th July 2015. In other
words they were ante-dated to 10th July, 2015.
This is prima facie an attempt to falsify the
record."
d) In SKS Power Generation (Chhattisgarh) Ltd. (supra), the
Court while referring to the ‟29 pages‟ filed initially as "bunch
of papers" held as under:
"As held by this Court in Durga Construction Co.
(supra), where the petitions or applications filed by
a party are so hopelessly inadequate and
insufficient or contain defects which are
fundamental to the institution of the proceedings,
then in such cases the filing done by the party
would be considered non est and of no
consequence. This was reiterated by this Court in
Sravanthi Infratech Pvt. Ltd. (supra), where the
petition had ben filed without documents,
vakalatnama, affidavit or authority."
e) In Jay Polychem (India) Ltd. & Ors. vs. S.E. Investment Ltd.,
reported in 2018 V AD (Delhi) 581, it was held:
"6. Clearly, a statement, which is neither signed
nor supported by an affidavit cannot be considered
as an application under Section 34 of the Act.
Thus, the petition filed on 31.10.2015 was non-est.
In this view, the present petition is not
maintainable, as it has been filed beyond the
prescribed period of three months and also beyond
the further period of thirty days within which this
Court could entertain the petition on petitioners
establishing that it was prevented from sufficient
cause from presenting the petition within the
period prescribed.
7. The Supreme Court in the case of Union of
India v. Popular Construction:
MANU/SC/0613/2001: (2001) 8 SCC 470 has held
that the time limit prescribed under Section 34(3)
of the Act to challenge an award is not extendable
by the Court under Section 5 of the Limitation Act,
1963 in view of the express language of Section
34(3) of the Act. The petition is, thus, not
maintainable because as on 23.12.2015, the
maximum time available within which the petition
could be entertained by this Court - that is three
months and a further period of 30 days - had
expired."
f) Following these decisions, a Co-ordinate Bench of this Court in
the case of Director- cum-Secretary, Development of Social
Welfare vs. Sarvesh Security Services Pvt. Ltd., reported as
2019 SCC OnLine Del 8503, held that:
"5. It is an admitted fact that the petition as
originally filed did not have the signatures of the
Petitioner. It was also not accompanied with the
statement of truth in the form of the affidavit.
Besides, as noted above, the vakalatnama in favour
of the counsel was also not placed on record. The
question therefore is whether such a petition could
qualify as a filing in law? This question has been a
subject matter of several decision including the
one relied upon by the learned counsel for the
Respondent. It has been held that such a petition
would not qualify as a filing and the Court has
discouraged litigants to file such petitions in order
to avoid the rigour of strict provision of limitation
as stipulated under Section 34(3) of the Act."
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 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.
These defects are certainly curable and if the petition is filed with such
like defects, it cannot be termed as a non-est petition.
46. 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.
47. 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 re-filed. The Code 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.
48. The only inference that one can draw is that the initial filing was done
only to stop the period of limitation from running. The petition was
filed and refiled without curing most of the defects. The log-in
information continues to mark the same codes for different dates of
filing which showed the carelessness and the casual attitude in
prosecuting the filing.
49. The Apex Court in the case of Bharat Barrel and Drum Mfg. Co. Ltd.
v. ESI Corpn.: (1971) 2 SCC 860, has emphasized the necessity of
enacting the periods of limitation to ensure that a party exercises his
right within a reasonable time and to discourage stale or fraudulent
claims. Relevant para of the judgment is as under:
"7. The necessity for enacting periods of limitation is to
ensure that actions are commenced within a particular
period, firstly to assure the availability of evidence
documentary as well as oral to enable the defendant to
contest the claim against him; secondly to give effect to
the principle that law does not assist a person who is
inactive and sleeps over his rights by allowing them when
challenged or disputed to remain dormant without
asserting them in a court of law. The principle which
forms the basis of t his rule is expressed in the maximum
vigilantibus, non dermientibus, jura subveniunt (the laws
give help to those who are watchful and not to those who
sleep). Therefore the object of the statutes of limitations
is to compel a person to exercise his right of action
within a reasonable time as also to discourage and
suppress stale, fake or fraudulent claims."
50. No doubt the Courts have the jurisdiction to condone delay within the
extended period of thirty days under Section 34(3) of the Act, but the
approach in exercising such a jurisdiction cannot be very liberal and
the action of the applicant will have to be tested on the touchstones of
whether there was due diligence and dispatch in filing the matter and
clearing the defects. The legislature has specified an inelastic period
of limitation under Section 34(3) of the Act and this intent of the
legislature cannot be likely brushed aside.
51. I may note here that even assuming for a moment that the filing done
on 20.02.2019 or 22.02.2019 is treated to be a „proper filing‟ as
contended by the learned counsel for the petitioner, the delay beyond
the statutory period of 3 months cannot be condoned. Under the
proviso to Section 34(3), the Court has the discretion to condone the
delay in filing upto a period of 30 days beyond the 3 months if
„sufficient cause‟ is shown by the applicant. But what is of utmost
significance is that the sufficient cause which has to be shown by the
applicant under this proviso is not for the delay in filing the petition
beyond the 3 months but the „sufficient cause‟ which prevented the
applicant from filing the application within the statutory period of 3
months. The application as well as the affidavits filed by the
petitioner contain no explanation at all regarding the steps taken by the
petitioner from 24.10.2018 to 23.01.2019. In fact, the narration of
events begins only from 21.01.2019 when according to the petitioner
for the first time a petition was prepared and signed although as a
matter of record even the filing of this petition on 23.01.2019 could
not be substantiated by the petitioner. Thus, in my opinion, the
petitioner has not been able to show „sufficient cause‟ that prevented
him from approaching this Court upto 23.01.2019. The discretion of
this Court under the proviso thus cannot be invoked by the petitioner.
52. The entire emphasis of the petitioner has been on the steps taken
between 23.01.2019 and 25.02.2019. However, even if I was to
analyse this aspect, all that can be said is that from 23.01.2019 to
04.02.2019 wrong CDs had been uploaded by the petitioner on two
occasions. From 05.02.2019 to 19.02.2019, there is complete silence
on why no steps were taken to file/re-file. Perusal of the log-in report
shows that in this long period of 14 days, in fact, there was no filing
by the petitioner. Even thereafter, all that the petitioner did was to
repeatedly refile the petition by modifying the pages time and again
but not curing the basic defects. This is apart from the fact that even
today the petition on record shows a very shoddy state of affairs,
where the affidavits are dated 20.02.2019 and the petition and the
applications bear different dates, post the date of the affidavit.
53. Having examined the entire gamut of facts in the present case, I am of
the opinion that the petitioner has been unable to show sufficient cause
that prevented him from filing the petition upto 23.01.2019 when the
statutory period of 3 months ended. Even the petition filed on the last
day of the 30 days beyond the three months period was non-est.
Therefore, the contention that there is a delay in re-filing is incorrect
as the delay actually is in the initial filing. Once the delay is in the
initial filing and is beyond a total of 120 days, as prescribed under
Section 34(3) and Proviso to the said Section of the Act, this Court has
no power to condone the delay as held by the Apex Court in the case
of Simplex Infrastructure Limited (supra). The application for
condonation of delay, thus deserves to be dismissed as the delay
cannot be condoned.
54. Before I end this judgment, it needs to be noted that the petitioner here
is not an individual who did not have a legal back up in terms of panel
and retainer lawyers or the monetary resources to prosecute his case
diligently. The petitioner is one of the largest Public Sector
Undertakings and ought to have filed a proper petition at the initial
stages and assuming there were some defects, the same ought to have
been diligently cleared before the period of limitation ran out.
55. The application seeking condonation of delay is thus dismissed for the
aforesaid reasons.
O.M.P. (COMM) 97/2019 & I.A. No. 3429/2019 (Stay) and I.A.
3431/2019 (exemption)
56. Since the application for condonation of delay in filing the petition has
been dismissed, the petition is hereby dismissed along with all other
pending applications.
JYOTI SINGH, J
st
OCTOBER 1 , 2019
rd
