Oriental Insurance Co Ltd vs Air India Ltd
2021 Latest Caselaw 3215 Del

                          $~6.
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +                                             Date of Decision: 26.11.2021
                          %     FAO(OS) (COMM) 6/2020 and C.M. No.688/2020
                                ORIENTAL INSURANCE CO LTD                          ..... Appellant

                                                   Through:     Mr. Amit Kumar Singh, Mr. Apratim
                                                                Animesh Thakur & Ms. Prachi
                                                                Hasija, Advocates.

                                                   versus

                                AIR INDIA LTD                                      ..... Respondent

                                                   Through:     Mr. Dhanesh Relan, Mr. Arindam
                                                                Dey, Mr. Jatin Bhatia & Mr. Paritosh
                                                                Dhawan, Advocates.

                                CORAM:
                                HON'BLE MR. JUSTICE VIPIN SANGHI
                                HON'BLE MR. JUSTICE JASMEET SINGH

                          VIPIN SANGHI, J. (ORAL)

1. The present appeal is directed against the order dated 27.09.2019 passed I.A. No. 13340/2019 in O.M.P. (COMM.) 400/2019 by the learned Single Judge. The learned Single Judge has dismissed the said application preferred by the appellant/ petitioner to seek condonation of delay in filing the objection petition under Section 34 of the Arbitration and Conciliation Act, on the ground that though the objection petition was initially preferred within the 120-day period of the receipt of the copy of the majority award by the petitioner on 11.04.2019, the same could not be considered as a valid

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56 filing due to several serious defects in the original filing itself - which took place on 03.08.2019. Consequently, the objection petition also stands dismissed.

2. The impugned order takes note of the defects which were found in the initial filing, namely the absence of Vakalatnama, Court fees, impugned Award, requisite documents, signed & attested Statement of Truth and affidavits in support of the application.

3. The factual position taken note of in the impugned order is that the after the initial filing of the objection petition on 03.08.2019, the defects were, firstly, notified on 06.08.2019 and there were 18 defects notified by the Registry. The petition was re-filed on 31.08.2019 - when 17 defects were notified. Apparently, it was re-filed on 02.09.2019 - when one defect was notified. It was re-filed on 03.09.2019, and five old defects remained and one new defect dated 02.09.2019 also remained. On 04.09.2019, all old defects were cured by the petitioner. On the same day, three new defects were notified. Two new defects were notified on 11.09.2019; and one new defect was notified on 13.09.2019. Yet again, on 20.09.2019, one new defect was notified; and on 21.09.2019 another new defect was notified. Eventually, the petition was registered on 23.09.2019.

4. From the above, it would be seen that the Registry kept raising new defects upon, practically, each re-filing. In our view, the Registry should raise all objections which exist in a petition - as filed, in the first instance only, unless new defects crop-up and are noticed on account of the re-filing of the petition, with fresh documents or any other changes that may have been made in the petition as originally filed. Otherwise, it would be unfair

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56 to the party filing the petition, and it would also result in delaying the registration and listing of the petition before the Court.

5. The Ld. Single Judge has proceeded to dismiss the aforesaid application seeking condonation of delay in initial filing of the objection petition by concluding that the said filing was "Non-est", i.e. no filing in the eyes of law. The issue we need to consider is, whether, this is the correct view in the facts of the present case.

6. From the objections taken note of hereinabove, it is evident that the petition - as originally filed, was signed by the petitioner, since no such objection was raised that the petition was not signed when originally filed.

7. Reliance placed by the respondent on the judgment of a Division Bench of this Court in Director-cum-Secretary, Department of Social Welfare Vs. Sarvesh Security Services Pvt. Ltd, FAO(OS) (COMM) 240/2019 decided on 25.09.2019 - to claim that the originally filed petition was, as good as, no filing, in our view is inapposite inasmuch, as, in the facts of the case dealt with by the Division Bench, the petition - when originally filed, was neither signed by the party, nor by the counsel. Thus, the ownership of the document/ petition - as filed in the Registry, was not fixed and the party in whose name the petition was filed, as well as the counsel in whose name it was filed, could disown having filed the said petition/document, at any stage. It was in this background that the Division Bench took the view that the original filing could be considered as no filing at all.

8. A perusal of the aforesaid decision would show that the Division Bench sought to distinguish the decision in Alka Kasana Vs. Indian

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56 Institute of Technology, (2015) SCC OnLine Del 11455, by observing that in Alka Kasana (supra) the plaint when initially filed was "duly signed and verified by the plaintiff and was accompanied by an affidavit, which however, was not duly attested by an Oath Commissioner". However, in the case dealt with by the Division Bench "the petition as originally filed by the appellant, was not even signed by a competent officer authorised in this behalf by the appellant/ petitioner. It was only signed by the counsel and admittedly, on the date of initial filing he did not have a vakalatnama, as the vakalatnama in favour of the previous counsel was executed much later, on 16.09.2019".

9. So far as the other defects in the initial filing of the petitioner are concerned, they were all curable defects. The delay in filing the Court Fee could be condoned by the Court by resort to Section 149 of the CPC.

10. Pertinently, under the relevant High Court Rules, there is no clear and definite guideline to show as to when a petition -when originally filed, would be considered as non-est, or otherwise. The nature of defects - which would render an initial filing as non-est, is not clearly set out. Therefore, it would not be fair to a party - who files a petition before a Court, to be told that his initial filing was non-est due to certain defects. That declaration or pronouncement by the Court - in each case, would be subjective and ad-hoc.

11. In our view, a filing can be considered as non-est, if it is filed without any signatures of either the party or its authorised and appointed counsel. Therefore, if a petition - as originally filed, bears the signatures of the party, or its authorised representative, in our view, it cannot be said that the same is non-est. So also, if it is signed by the counsel, and the Vakalatnama

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56 appointing the counsel, duly signed by both - the party and the counsel, is filed at the initial stage, the filing cannot be said to be non-est. This is because the ownership of the document/ petition filed is fixed. Also, the factum of filing the document/petition by the party or on its behalf becomes a matter of record.

12. The right to prefer objections to assail the arbitral award under Section 34 of the Arbitration and Conciliation Act is a valuable right. It is the only limited right that a party aggrieved of an arbitral award, has. The said right, in our view, cannot be denied unless the party concerned has clearly failed to file the objection petition within the strict period of limitation prescribed under the Act. The objections to the arbitral award - under Section 34 of the Act, should necessarily be filed within three months, or within 30 days thereafter with justification i.e. sufficient cause, for such delay. No doubt, if they are filed even beyond that period, they cannot be entertained under any circumstance. However, when the objections are initially filed within the period of 3 months plus 30 days, the approach of the Court while dealing with an application to seek condonation of delay cannot be too tight fisted. If the party concerned inhibits careless attitude even after the first filing and causes delay which is disproportionately large to the period of limitation prescribed under Section 34 of the Act, the delay in filing and refiling may be fatal. (See: Executive Engineer v Shree Ram Construction Co., (2010) 120 DRJ 615 (DB) and Delhi Transco Ltd. & Anr. vs Hythro Engineers Pvt. Ltd., 2012 SCC OnLine Del 3557). However, where they party - after the initial delay in filing (which is within the 30 days period of the expiry of the 3 month period of limitation),

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56 exhibits a sense of urgency in refiling(s), then a more favourable view should be taken by the Court to condone the delay. In such cases, it is always possible to put such a party to terms.

13. In the present case, the situation was a little complex inasmuch, as, there was firstly a majority award; and thereafter, came the opinion of the differing arbitrator at a later point of time. The appellant entertained the belief that the period of limitation would begin to run only when the minority view is also received. However, the appellant realised - upon receipt of legal opinion, that the period of limitation had begun to run from the date when the majority award was received, which in this case was 11.04.2019. The appellant, consequently, rushed to file the objection petition on 03.08.2019, i.e. on the 114th day.

14. The sequence of events - which have taken place after the initial filing, have been noticed by us hereinabove. They clearly show the intent of the appellant in diligently following-up the matter with the Registry. Therefore, it cannot be said that the appellant was completely negligent and reckless in the matter, and should be visited with the serious consequence of its objections to the award being dismissed on the technical ground of delay, even without being considered on merits.

15. We, therefore, set aside the impugned order and allow the application filed by the appellant/ petitioner to seek condonation of delay in filing the objection petition. However, the appellant is subjected to costs of Rs.25,000/- to be paid to the respondent, which shall be deposited in the next two weeks. We restore the objection petition filed by the appellant. The parties shall appear before the learned Single Judge on 13.12.2021.

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56

16. The appeal stands disposed of in the aforesaid terms.

VIPIN SANGHI, J.

JASMEET SINGH, J.

NOVEMBER 26, 2021

Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:30.11.2021 16:38:56