Madras High Court
M.Gajendran vs M/S.Everest Blue Metals on 23 October, 2025
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
2025:MHC:2432
Appln.Nos.4872 and 4874 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2025
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Appln.Nos.4872 and 4874 of 2025
in
Arb.O.P.(Com.Div.)SR.No.95844 of 2023
and
Arb.O.P.(Com.Div.)SR.No.95844 of 2023
1. M.Gajendran
Old No.116, New No.114
Singanna Chetty Street
Chintadripet, Chennai-600 002.
2. M.G.Vasantha Kumar
Old No.116, New No.114
Singanna Chetty Street
Chintadripet, Chennai-600 002. ....applicants / petitioners
in both applications / original petition
Vs.
1. M/s.Everest Blue Metals
S.F.No.2523
Veppilai Mettur (Vili), V.Kongarapatti (PO)
Kadaiyampatti (th)
Salem District - 636 351.
2. R.Munirathinam
D.No.199, Thindalanoor (Vill)
1/28
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Kadathur (PO), Pappireddipattay (Tk)
Dharmapuri - 635 303.
3. M.Raja
D.No.313-6/67
Jalliyur (Vill), Regadahalli (PO)
Pappireddipatty (Tk)
Dhamapuri - 635 303.
...Respondents / Respondents
in both applications / original petition
Prayer:
Arbitration Original Petition filed under Section 34(2)(b)(ii) read with
explanation (iii) and Section 34(2A) of the Arbitration and Conciliation Act,
1996, praying to set aside the Arbitral Award dated 27.04.2023 passed by
V.Paul Das in its entirely to which it is challenged and to direct the
respondents to pay the costs.
Appln.No.4872 of 2025 filed under Order XIV Rule 10(1) of High
Court Original Side Rules, praying to condone the delay of 690 days in
representing the Arb.O.P(Com.Div)D.No.95844 of 2023.
Appln.No.4874 of 2025 filed under Order XIV Rule 10(1) of High
Court Original Side Rules, praying to condone the delay of 690 days in
paying deficit Court fee of Rs.1,01,000/- in Arb.O.P(Com.Div)D.No.95844
of 2023.
2/28
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For applicants / petitioners : Mr.Gopalakrishnan T.C
For respondents / respondents : Mr.D.Shivakumaran
COMMON ORDER
These applications came up for hearing yesterday i.e., on 22.10.2025
and this Court passed an order in open Court dismissing both the
applications. After the order was passed, the learned counsel for applicants
made a mention during lunch recess to post these applications under the
cause list caption 'FOR CLARIFICATION' on the ground that certain
important judgments were not taken into consideration when the final order
was passed. Based on the request made by learned counsel for applicants,
the matter was directed to be listed under the cause list caption 'FOR
CLARIFICATION' today and this Court heard learned counsel appearing on
either side in extenso.
2. A.No.4872 of 2025 has been filed to condone the delay of 690 days
in representing the papers. A.No.4874 of 2025 has been filed to condone
the delay of 690 days in paying deficit Court fee of Rs.1,01,000/-.
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3. When these applications came up for hearing on 06.10.2025, this
Court passed the following order:
"These applications have been filed for condoning the delay
of 690 days in re-presenting the papers and in paying the Court fee
of Rs.1,01,000/-, respectively.
2. The learned counsel for applicants submitted that the
award is dated 27.04.2023 and that the original petition was filed
before this Court on 24.07.2023. However, the counsel who filed the
petition had virtually cheated the clients and no Court fee was paid
at the time of filing. The learned counsel for applicants further
submitted that the papers were ultimately re-presented on
25.04.2025 with proper Court fees and by assigning proper reasons.
The learned counsel also submitted that insofar as the delay in re-
presentation is concerned, it will not come within the scope of
Section 34(3) of the Arbitration and Conciliation Act. To substantiate
the same, the learned counsel for applicants relied upon the
judgment of the Apex Court in the case of Northern Railway v.
Pioneer Publicity Corporation Private Limited, (2017) 11 SCC 234.
3. There can be no controversy regarding the delay in re-
presentation, which obviously will not come within the scope of
Section 34(3) of the Arbitration and Conciliation Act. However, the
main issue that has to be considered by this Court is as to whether
the so-called filing that happened on 24.07.2023, can be construed
as a filing at all, since no Court fees were paid while filing the
petition. If ultimately the proper filing had taken place at the time of
re-presentation on 25.04.2025, this is much beyond the period of 120
days, beyond which this Court cannot condone the delay. When this
was brought to the notice of the learned counsel for applicants, the
learned counsel sought for some time to make his submissions.
4. Post these applications under the same caption on
08.10.2025."
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4. Both the applications were once again listed for hearing on
13.10.2025 and the following order came to be passed:
"Pursuant to the earlier order passed by this Court,
learned counsel for the applicant has filed additional typed-set
of papers. Learned counsel submitted that the erstwhile
counsel had originally received a sum of Rs.1,70,000/- from
the applicants and thereafter, he received another sum of
Rs.50,000/- from the applicants. However, at the time of filing
the petition under Section 34 of the Arbitration and
Conciliation Act, 1996, the erstwhile counsel had affixed stamp
duty for a sum of Rs.10/-. The balance stamp duty for
Rs.99,990/- was affixed only when the papers were represented
on 27.03.2025. Learned counsel, therefore, submitted that
originally when the petition was filed, a sum of Rs.10/- was
affixed as stamp duty and it is not a case of 'Nil' stamp duty as
was observed by this Court in the earlier order.
2. Learned counsel appearing on behalf of the
respondents submitted that they had filed a memo for search
and it was ascertained that when the petition was originally
filed on 24.07.2023, the award itself was not filed. The award
came to be filed only on 23.06.2025. Learned counsel has filed
list of dates and events to substantiate that effective filing of
the petition has taken place beyond the period of 120 days and
there is no scope to condone the delay in this case.
3. Learned counsel for applicants seeks for some time to
clarify as to whether the award copy was filed along with the
petition when the petition was originally filed on 24.07.2023.
4. The return memo dated 26.07.2023 signed by the
Joint Registrar (O.S.) at Sl.No.20 shows that the award was
not filed. Hence, Registry shall also prepare a note and submit
before this Court and inform this Court as to whether any
award was filed at the time of original filing of the petition on
24.07.2023.
5. Learned counsel for applicants shall also give
necessary clarification.
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Post these applications finally under the same caption
on 22.10.2025."
5. Pursuant to the above order, the Registry has placed a report before
this Court and for proper appreciation, the same is extracted hereunder:
"It is most respectfully submitted that the above said
Application Nos.4872 & 4874 of 2025 in Arbitration Original
Petition Dr.No.95844 of 2023 were listed before your
Lordship on 13.10.2025. Your Lordship directed the Registry
to prepare a note and submit before this Court and inform this
Court as to whether any award was filed at the time of
original filing of the petition on 24.07.203.
It is further submitted that the original petition was
filed on 24.07.2023 without the original Arbitration Award
dated 27.04.2023 and the Registry has returned the papers
with an endorsement on 26.07.2023 copy of the Award duly
certified by the Arbitrator or Original Award to be filed
(Award not filed) and again the Registry returned the papers
on several times on 08.04.2025, 28.04.2025, 11.07.2025,
11.08.2025 and 09.09.2025 to comply with the defects.
It is further submitted that on verification of the
records, the counsel for the petitioner has filed the original
Arbitral Award on 23.06.2025 in D.No.22399 of 2025 and the
copy of the Arbitral Award along with typed set of papers filed
by the counsel for the petitioner on 13.08.2025 in D.No.32179
of 2025."
6. The report of the Registry shows that the award dated 27.04.2023
came to be filed only when papers were represented on 23.06.2025 and a
copy of the award was not even filed when the petition was originally filed
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on 24.07.2023.
7. When the report forwarded by the Registry was pointed out to the
learned counsel for applicants, learned counsel for applicants submitted that
the copy of the award was filed when the petition was originally filed on
24.07.2023. To substantiate the same, the learned counsel relied upon copy
of the petition and grounds that were raised in that petition. The learned
counsel pointed out those grounds where specific reference was made in the
award and certain paragraphs in the award which were questioned by the
applicants as perverse. The learned counsel, therefore, submitted that
without the copy of the award being available, learned counsel who
originally filed the petition could not have referred to specific paragraphs in
the award. Therefore, the copy of the award was in fact filed when the
petition was originally filed on 24.07.2023.
8. This Court posed a question to the learned counsel for applicants as
to whether filing of a petition with copy of the award will suffice and will
satisfy the requirement of a proper presentation of the petition.
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9. In reply to the above query posed by this Court, the learned counsel
relied upon the judgment of Hon'ble Division Bench of Delhi High Court in
Delhi Urban Shelter Improvement Board Vs. Lakhvinder Singh reported
in 2017 SCC OnLine Del 9810 and learned counsel placed specific reliance
upon paragraph No.14 which is extracted hereunder:
"14. Section 31(5) of the Act contemplates the delivery
of a signed copy of the arbitral award to be delivered to each
party, and Section 34(3) states that an application for setting
aside of the award may not be made, inter alia, after three
months have elapsed from the date on which the party making
the application had "received" the arbitral award. DUSIB
has argued that the copy of the award that had been received
was not a signed copy of the award, and as such, the
limitation had not been triggered, and that the single Judge
had erred in holding the same to be barred by limitation.
However, the covering letter enclosing the arbitral award
dated 14.03.2016 was signed in original and also bore the
stamp of the arbitrator. The copy of the award enclosed with
the letter was stamped with the name of the arbitrator in
original on every page. The stamp was, plainly, to
authenticate the copy of the award and the DUSIB did not
dispute that the copy of the award authenticated by the
Arbitrator was received by DUSIB; its only contention was
that the copy of the award was not signed in the handwriting
of the arbitrator."
10. The learned counsel further submitted that even Arbitration Rules
of our High Court does not mandate filing of original award. In view of the
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same, it was contended that where the petition is filed with copy of the
award, it has to be construed as proper presentation since at the time of
representation of papers, original award was filed and it was exact replica of
copy of the award that was originally filed by the petitioner at the time of
original presentation on 24.07.2023.
11. Per contra, learned counsel for the respondents submitted that
proper filing of petition will arise only when the original award is filed
along with the petition. The learned counsel submitted that such proper
filing had taken place in this case only on 23.06.2025 and therefore, non-
filing of the arbitral award along with the petition filed under Section 34 of
the Arbitration and Conciliation Act, 1996 (Act No.26 of 1996) makes the
petition itself non-est in the eye of law. It was therefore, contended that
limitation under Section 34(3) of A and C Act will continue to run in spite of
such filing made by the petitioners originally on 24.07.2023.
12. The learned counsel, in order to substantiate his submission relied
upon by the Full Bench of Delhi High Court in Pragati Construction
Consultants Vs. Union of India and another reported in 2025 (3) CTC 433
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and relevant portion is extracted hereunder:
"97. We summarise our answer to the Reference, as
under:
a) Non-filing of the Arbitral Award alongwith an
application under the Section 34 of the A&C Act would make
the said application liable to be treated and declared as non-
est, and the limitation prescribed under Section 34(3) of the
A&C Act shall continue to run in spite of such filing;
b) Mere non-filing of the Statement of Truth or a defect
in Statement of Truth being filed, that is, including with blanks
or without attestation, would not ipso facto, make the filing to
be non-est. However, if accompanied with other defects, the
Court may form an opinion, based on a cumulative list of such
defects, that the filing was non- est;
c) Similarly, non-filing or filing of a defective
Vakalatnama; the petition not being signed or properly
verified; changes in the content of petition being made in form
of addition/deletion of facts, grounds, or filing of additional
documents from arbitral record, or filing with deficient court
fee, each of these defects, individually would not render to
filing of an application under Section 34 of the A&C Act to be
treated and declared as non-est. However, presence of more
than one of such defects may, in the given set of facts involved
in a case, justify the conclusion of the Court that filing of the
application was never intended to be final and therefore, is
liable to be declared non-est."
13. The next issue that arises for consideration is as to whether the
delay of 690 days in paying deficit Court fee of Rs.1,01,000/- is within the
condonable limits of this Court.
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14. The learned counsel for applicants submitted that the limitation
prescribed under Section 34(3) of A and C Act is applicable only for initial
filing of the application and therefore, where there is a delay in
representation at which point of time, deficit Court fee is paid, that will not
fall foul of the limitation prescribed under Section 34(3) of A and C Act.
15. To substantiate the above submission, the learned counsel relied
upon the judgment of Apex Court in Northern Railway Vs. Pioneer
Publicity Corporation reported in (2017) 11 SCC 234 and the learned
counsel placed specific reliance on the following paragraphs in the
judgment:
"2. Eventually, the appellant re-filed the matter on
21.03.2013. The explanation given by the appellant is that the
amount of Court fees to the extent of Rs.8,94,000 was to be
arranged and that took some time. The appellant is the
Northern Railway and while it is difficult to condone such
inefficiency which seems to be a persistent reality with the
organisation, such as the Northern Railway, that took time in
arranging even the small things.
3. Mr.Amarjeet Singh Chandiok, learned Senior Counsel
appearing for the respondent submitted that Section 34(3) of
the Act bars re-filing beyond the period stipulated thereon. The
said sub-section reads as follows:
"34(3) An application for setting aside may not be made
after three months have elapsed from the date on which the
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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."
4. We find that said Section 34(3) has no application in
re-filing the petition but only applies to the initial filing of the
objections under Section 34 of the Act. It was submitted on
behalf of the respondent that Rule 5(3) of the Delhi High Court
Rules states that if the memorandum of appeal is filed and
particular time is granted by the Deputy Registrar, it shall be
considered as fresh institution. If this Rule is strictly applied in
this case, it would mean that any re-filing beyond 7 days would
be a fresh institution. However, it is a matter of record that 5
extensions were given beyond 7 days. Undoubtedly, at the end
of the extensions, it would amount to re-filing."
16. The learned counsel also relied upon the order dated 12.01.2023
passed by learned single Judge of this Court in A.No.216 of 2023 in
Arb.O.P.(Com.Div.)DR.No.82894 of 2022 and relevant portions are
extracted hereunder:
"2. The learned counsel for the applicants submitted
that the delay of 96 days in representing the petition
Arb.O.P.(Com.Div.) Diary No.82894 of 2022 has occurred
only because of the reason that the applicants took some time
for arranging the Court fee of Rs.1,00,000/- and getting
approval from the departmental authorities. However, the
applicants have paid the entire Court fee of Rs.1,00,000/- in
the original petition. He further submitted that without
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considering the reasons adduced by the applicants for the
delay, the learned Master has dismissed the Application
No.5856 of 2022.
3. The case as referred by the learned Master was that
is pertaining to the Court fee, where, even at the time of
representation, no full Court has been paid. But, in this case,
part of the Court fee has been paid by the applicants at the
time of representation and thereafter, they have paid the
entire Court fee of Rs.1,00,000/-.
4. It is a well settled law that in case where the whole
or part of court fees has not been paid, even after filing the
suit, the Court may, in its discretion, allow the person to pay
the insufficient Court fee at any point of time. Therefore,
having been satisfied with the reasons stated by the
applicants in the affidavit filed in support of the application,
this Arbitration Application is allowed and the order dated
21.12.2022 passed by the learned Master in Application
No.5856 of 2022 is set aside, thereby, the delay of 96 days in
representing the above Arb.O.P.(Com.Div.) Diary No.82894
of 2022 is condoned."
17. Per contra, the learned counsel for respondents submitted that the
judgment that was relied upon by the learned counsel for applicants in the
case of Northern Railway, was already considered by this Court in
Vikranthi Foundations Vs. Orient Builders reported in 2023 (4) LW 726
and on considering the same, this Court held as follows:
"13. The learned counsel for the applicant had relied upon
two decisions of the Hon'ble Supreme Court in support of his
submissions:—
a) One is the decision rendered in Northern Railway v.
Pioneer Publicity Corp. Pvt. Ltd. In the said decision, the Hon'ble
Supreme Court has held that Section 34(3) of the Arbitration and
Conciliation Act, 1996, has no application in re-filing the petition
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but only applies to the initial filing of the objections under Section
34 of the Arbitration and Conciliation Act, 1996.
14. .......................
15. As seen from the aforesaid decision, the Hon'ble Supreme
Court has categorically held that Section 34(3) of the Arbitration
and Conciliation Act, 1996 has no applicability for cases involving
delay in re-filing.
16. The other decision relied upon by the learned counsel for
the applicant viz., Ajay Dabra v. Pyare Ram arising out of SLP (C)
No. 15793 of 2019, dated 31.03.2023 while dealing with Section 149
of CPC and Section 4 of the Court Fees Act, the Hon'ble Supreme
Court has held that Section 149 of the Civil Procedure Code
mitigates the rigour of Section 4 of the Court Fees Act and it is for
the Court in its discretion to allow a person, who has filed a
memorandum of appeal with deficit Court fee to make good the
deficit and the making good of such deficit cures the defects in the
memorandum not from the time when it is made but from the time
when it was first presented in the Court. The facts of the second
decision relied upon by the learned counsel for the applicant which
is the Ajay Dabra's case, is slightly different from the case on hand.
In Ajay Dabra's case, the Section 149 of the Code of Civil Procedure
application seeking extension of time for the payment of Court fees
was filed within the period of limitation for filing the appeal,
whereas in the case on hand, the said application has been filed by
the applicant beyond the period of limitation prescribed for filing the
Section 34 petition under the Arbitration and Conciliation Act, 1996.
Therefore, the decision rendered by the Hon'ble Supreme Court in
Ajay Dabra's case referred to supra has no bearing to the facts of
the instant case.
17. Though, as seen from the decision rendered by a learned
Single Judge of this Court in the case of General Manager v. Veeyar
Engineers and Contractors, 2019 SCC OnLine Mad 5586 as well as
in the decision rendered by the Division Bench of this Court in the
case of Waaree Energies Limited v. Sahasradhara Energy Pvt. Ltd.,
2021 SCC OnLine Mad 5086, the decision of the Hon'ble Supreme
Court, in the case of Northern Railway v. Pioneer Publicity Corp.
Pvt. Ltd. in Civil Appeal No. 10340 of 2016 was not considered, the
non consideration of the same will not have any impact on this
Court's decision with regard to the issues on hand. In the Northern
Railway judgment of the Hon'ble Supreme Court, referred to supra,
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the issue did not involve non payment of Court fees within the
prescribed period of limitation as fixed under Section 34(3) of the
Arbitration and Conciliation Act, 1996 but the issue involved in that
decision was whether Section 34(3) of the Act is applicable for
condoning the delay in refiling also. The Hon'ble Supreme Court
held that Section 34(3) of the Act has no application in re-filing the
petition but only applies to the initial filing of the objections under
Section 34 of the Act. In the case on hand, the Court fees payable by
the applicant was not paid within the prescribed period of limitation
as fixed under Section 34(3) of the Act and the petition under 149
CPC seeking extension of time for payment of court fees was also
filed beyond the limitation period. Therefore, the decisions relied
upon by the learned counsel for the respondent in General Manager
v. Veeyar Engineers and Contractors, 2019 SCC OnLine Mad 5586
and Waaree Energies Ltd. v. Sahasradhara Energy Pvt. Ltd., 2021
SCC OnLine Mad 5086 which dealt with identical issues viz., non
payment of proper court fees within the limitation period as
prescribed under Section 34(3) of the Act are squarely applicable to
the facts of the instant case. Having paid the Court fees beyond the
limitation period, the petition filed by the applicant under Section 34
of the Arbitration and Conciliation Act, 1996, is not a proper
presentation and therefore, the learned Master has rightly dismissed
the applications filed by the applicant a) seeking to condone the
delay of 191 days in representation and b) seeking to condone the
delay of 211 days in paying the court fees. It is also to be noted that
the applicant has once again been indifferent in filing applications
aggrieved by the common order of the learned Master as there is a
delay in filing these applications as well. The instant applications
have been filed to condone the delay of 54 days in filing applications
aggrieved by the common order of the learned Master, dated
21.02.2023 passed in A. Nos. 507 and 509 of 2023.
18. Arbitration is an alternate Dispute Resolution Mechanism
for expeditious adjudication of disputes. The object of the
Arbitration and Conciliation Act, 1996 will be defeated if the
applications as the ones which have been rightly dismissed by the
learned Master under the common order are entertained. The
learned Master has rightly dismissed the applications. Though
Section 34(3) of the Arbitration and Conciliation Act, 1996 is not
applicable to applications filed seeking to condone the delay in re-
filing, the facts of the instant case does not empower this Court to
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entertain the applications filed for condonation of delay in re-filing
as well as to condone the delay in paying the court fees as
admittedly, the Court fees was paid beyond the period of limitation
and the petition under Section 149 CPC seeking extension of time
for payment of court fees was also filed beyond the limitation period
as prescribed under Section 34(3) of the Arbitration and
Conciliation Act, 1996."
18. The learned counsel submitted that the purport of the judgment of
Northern Railway case was already considered by this Court and therefore,
the applicants cannot rely upon the same judgment and seek for the relief of
condonation of delay of 690 days in paying deficit Court fee.
19. The learned counsel for the respondents also placed reliance upon
the judgment of learned single Judge of this Court in A.Nos.9610 and 9611
of 2019 dated 11.03.2020 and relevant portions relied upon by the learned
counsel for respondents are extracted hereunder:
"14. In paragraph 15 of Veeyar Engineers case,
paragraph 21 of K.Natarajan case has been extracted and
reproduced supra. In other words, K.Natarajan case is of
relevance. To be noted, in the instant case, it is nobody's case
that when OP was presented with huge deficit court fee on
03.06.2019 and affidavit was filed thereafter. Therefore, the
presentation made on 03.06.2019 is clearly not proper
presentation and does not arrest limitation period prescribed
under Sub Section (3) of Section 34 of A and C Act. This
means that the re-presentation with proper court fee, if any,
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ought to have been done within 30 days period, which elapsed
on 13.06.2019. Admittedly, re-presentation with deficit court
fee of Rs.99,000/- (Rupees Ninety nine Thousand only) was
made only on 06.08.2019 with cryptic aforementioned 4
paragraphs affidavit.
15. It is in this context that Simplex Infrastructure
Ltd. Vs. Union of India reported in 2018 SCC Online SC,
2681 becomes relevant. In Simplex Infrastructure, the
expression 'but not thereafter', occurring in proviso to sub
section (3) of Section 34 of A and C Act came up for
consideration and Hon'ble Supreme Court has held that delay
of 131 days cannot be condoned and that doing so will be
breach of statutory mandate. To be noted, delay in that case
was 131 days. The relevant paragraph is paragraph 18 and
the same reads as follows:
'18. A plain reading of sub-section (3) along with the
proviso to Section 34 of the 1996 Act, shows that the
application for setting aside the award on the grounds
mentioned in sub-section (2) of Section 34 could be made
within three months and the period can only be extended for a
further period of thirty days on showing sufficient cause and
not thereafter. The use of the words "but not thereafter" in the
proviso makes it clear that the extension cannot be beyond
thirty days. Even if the benefit of Section 14 of the Limitation
Act is given to the respondent, there will still be a delay of
131 days in filing the application. That is beyond the strict
timelines prescribed in sub-section (3) read along with the
proviso to Section 34 of the 1996 Act. The delay of 131 days
cannot be condoned. To do so, as the High Court did, is to
breach a clear statutory mandate.'
(Underlining made by this Court to supply emphasis
and highlight)
16. To be noted, this Court has followed Simplex
Infrastructure principle in Veeyar Engineers. This is
articulated in paragraph 21 of Veeyar Engineers, which
reads as follows:
'21. In this regard, it is necessary to refer to a recent
judgment of Hon'ble Supreme Court in Simplex Infrastructure
being Simplex Infrastructure Ltd. vs. Union of India reported
in 2018 SCC Online SC, 2681. The relevant paragraph is
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paragraph 18 and the same reads as follows:
18. 'A plain reading of sub-section (3) along with the proviso
to Section 34 of the 1996 Act, shows that the application for
setting aside the award on the grounds mentioned in sub-
section (2) of Section 34 could be made within three months
and the period can only be extended for a further period of
thirty days on showing sufficient cause and not thereafter. The
use of the words "but not thereafter" in the proviso makes it
clear that the extension cannot be beyond thirty days. Even if
the benefit of Section 14 of the Limitation Act is given to the
respondent, there will still be a delay of 131 days in filing the
application. That is beyond the strict timelines prescribed in
sub-section (3) read http://www.judis.nic.in along with the
proviso to Section 34 of the 1996 Act. The delay of 131 days
cannot be condoned. To do so, as the High Court did, is to
breach a clear statutory mandate.'
(Underlining made by this Court to supply emphasis and
highlight)
17. Thereafter, what is of utmost relevance is
paragraphs 31 and 32 of Veeyar Engineers, which read as
follows:
'31. Though law is well settled that when a special
statute prescribes a special time frame,Section 5 of the
Limitation act, 1963 does not apply, this Court has reminded
itself that sub-section (3) and proviso thereto to section 34 of
A & C Act which fall in this category should also be seen in
the perspective of aforesaid pillars of ADR Mechanism. If
parties who have opted for ADR Mechanism are allowed to
leisurely come before this Court under section 34, it will lead
to a situation where salutary principles and sublime
philosophies underlying the ADR Mechanism (which have
been described as pillars on which edifice of law governing
ADR Mechanism is built) can be easily neutralised, nullified
and defeated by resorting to procrastination. This Court
deems it appropriate to set out that this court has reminded
itself about this aspect of the matter also.
32. If the instant petition is held to be maintainable,
besides being impermissible owing to section 34(3) and
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proviso thereto and the overriding section 149 of CPC
(though not invoked), it will also create an avenue and may
open the floodgates for litigants to approach this court
leisurely and defeat the objectives of ADR Mechanism.
Therefore, this court is convinced that the instant OP is
clearly not maintainable. In other words, entertaining instant
OP will pave the way for litigants, who intend to
procrastinate, to merely file some sheets of paper without
proper presentation, i.e., without proper court fee or
impugned order and thereafter, endlessly extend the limitation
prescribed. This will open floodgates which will dilute and
wash away the principle underlying ADR Mechanism. Though
this Court has no hesitation in holding that O.P.Diary
No.18375 of 2018 is not maintainable owing to plain
operation of provisions of law itself, these aspects/principles
touching upon 'ADR Mechanism' have been alluded to only as
additional phenomena.' "
20. The learned counsel also placed reliance upon the judgment of
Hon'ble Division Bench of this Court in Warree Energies Limited, Rep. by
its Authorised Signatory Vs. Sahasradhara Energy P. Ltd., reported in
2021 0 Supreme (Mad) 1862 wherein, specific reliance was placed upon by
the above order passed by learned single Judge and Hon'ble Division Bench
held as follows:
"4. After referring to the submission of the appellant herein
and how a similar matter had been dealt with by the single Bench in
the judgment reported at 2020 (1) TLNJ 526 (Civil) (General
Manager Vs. Veeyar Engineers and Contractors), the Court posed a
question whether the presentation of the petition with the nominal
Court-fees of Rs.1,000/- instead of the payable quantum of Rs.1
Lakh amounted to proper presentation. On the basis of the previous
judgments referred to hereinabove, the Court concluded at
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paragraph 14 of the impugned judgment that the presentation of the
petition on June 3, 2019, "is clearly not proper presentation and
does not arrest limitation period prescribed under Sub Section (3) of
Section 34" of the Act of 1996. The Court reasoned that the entire
exercise had to be properly completed by June 13, 2019 for the
appellant herein to seek condonation within the additional 30 days
after the expiry of three months from the date of receipt of the
award. The representation with appropriate court-fees in this case
was only on August 6, 2019."
21. The learned counsel for the respondents submitted that if there is
any deficit in payment of Court fee, the presentation of the petition will
become proper only when the entire Court fee is paid and such Court fee has
to be paid within the condonable period of 90 + 30 days. If that is not done,
the original presentation itself must be construed as not proper and on the
expiry of 120 days, this Court does not have power to condone the delay in
the light of Section 34(3) of A and C Act. Accordingly, the learned counsel
for the respondents sought for dismissal of both the applications.
22. Insofar as the first issue is concerned, this Court will go into that
issue with the presumption that copy of the award was available and it was
filed along with original petition. In this view of the matter, in the grounds
that were raised in the petition, specific reliance has been placed on certain
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paragraphs in the award. This would only mean that the copy of the award
was available at the time of drafting the petition and filing the same on
24.07.2023.
23. The next issue is as to whether the original award ought to be filed
along with the petition in order to construe it as a proper presentation. The
Full Bench judgment of Delhi High Court that was relied upon by the
learned counsel for the respondents was dealing with the case where the
arbitral award itself was not filed along with the petition. Under such
circumstances, it was held that the very petition must be treated to be
non-est in the eye of law. Hon'ble Full Bench of Delhi High Court did not
deal with the scenario where copy of the award was filed along with the
petition.
24. At this juncture, it will be relevant to take note of the judgment of
Hon'ble Division Bench of Delhi High Court in Delhi Urban Shelter
Improvement Board case referred supra. The Delhi High Court was dealing
with the scope of Section 31(5) of A and C Act in that case. An unsigned
copy was originally filed along with the petition and later, the original
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containing the signature of the Arbitrator was brought in. While dealing
with the same, Hon'ble Division Bench of Delhi High Court held that once
when an authentic copy of an award is available, the original presentation
cannot be held to be improper just because it did not contain the signature in
the handwriting of the Arbitrator.
25. In the case on hand, the photocopy of the award seems to have
been filed along with the petition and at the time of representation, the
original award was filed. It is nobody's case that the copy of the award that
was originally filed is not in line with the original award which was later
filed at the time of representation. Hence, it cannot be held that the original
filing of the petition along with the copy of the award on 24.07.2023 is
improper filing.
26. The next issue pertains to deficit Court fee. The learned counsel
for the applicants placed heavy reliance upon the judgment of Northern
Railway case referred supra. This Court had an opportunity to consider the
judgment of Apex Court in Northern Railway case in Vikranthi
Foundations case referred supra. This Court held that the judgment of
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Apex Court in Northern Railway case did not involve non-payment of
Court fee within the prescribed period of limitation as fixed under Section
34(3) of A and C Act and that the issue involved in that decision was
whether Section 34(3) of A and C Act is applicable for condoning the delay
in re-filing also. The Hon'ble Apex Court held that Section 34(3) of A and
C Act has no application in re-filing the petition but it only applies to initial
filing of the petition under Section 34(3) of A and C Act.
27. After having rendered the above finding, learned single Judge
went into the issue of delay in payment of deficit Court fee. Learned single
Judge held that the applicants in that case did not pay the deficit Court fee
within the period of limitation as fixed under Section 34(3) of A and C Act.
It was therefore, held that any deficit Court fee that was paid beyond the
time frame fixed under Section 34(3) of A and C Act, does not come within
the condonable limits of this Court. Accordingly, learned single Judge
upheld the order passed by the learned Master.
28. It is also relevant to take note of yet another order that was relied
upon by the learned counsel for the respondents in A.Nos.9610 & 9611 of
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2018. That was a case where there was delay in paying deficit Court fee
beyond the period prescribed under Section 34(3) of A and C Act. The
learned single Judge of this Court, by relying upon the judgment in General
Manager vs. Veeyar Engineers and Contractors reported in 2019 SCC
OnLine Mad 5586 held that if the papers are represented with proper Court
fee, such delay in payment of deficit Court fee can be condoned only if it
comes within the condonable period prescribed under Section 34(3) of A
and C Act. This is in view of the fact that the original presentation with
deficit Court fee is not a proper presentation and it becomes a proper
presentation only if the entire Court fee is paid. Such proper presentation
must take place within the condonable period under Section 34(3) of A and
C Act and in the absence of the same, the Court cannot condone the delay.
The above order passed by learned single Judge was taken note by the
Hon'ble Division Bench of this Court in the case of Waaree Energies
referred supra. Hon'ble Division Bench once again reiterated the law that if
the deficit Court fee is paid beyond the limitation period prescribed under
Section 34(3) of A and C Act, it cannot be condoned by this Court.
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29. All the above judgments make it clear that filing of a petition with
deficit Court fee cannot be construed as proper presentation of the petition.
If such presentation of the petition has to be regularized, the deficit Court
fee must be paid within the limitation period prescribed under Section 34(3)
of A and C Act. If the same is not done, the Court is divested of its power to
condone the delay in the light of mandate prescribed under Section 34(3) of
A and C Act. In other words, improper presentation of the petition by
paying deficit Court fee, does not arrest the limitation period prescribed
under sub-section (3) of Section 3 of A and C Act, unless the deficit Court
fee is paid within the limitation period prescribed in that provision. If the
limitation period is crossed, an application filed thereafter to condone the
delay in paying the deficit Court fee cannot even be entertained, since it
goes beyond the power of the Court which is circumscribed under Section
34(3) of A and C Act.
30. The order passed by learned single Judge in A.No.216 of 2023
dated 12.01.2023 which was relied upon by the learned counsel for
applicants, does not lay down the correct law. Learned single Judge has not
taken into consideration earlier judgment of Hon'ble Division Bench in this
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regard. In the light of the above discussion, with respect to the second issue
pertaining to the delay of 690 days in paying deficit Court fee, the Court is
not vested with any power to condone this delay. Hence, the second issue is
decided against the applicants.
31. It is an unfortunate case where the applicants' erstwhile counsel
had been paid with sufficient amount both towards Court fee as well as
professional fee. However, learned counsel seems to have presented the
petition by merely affixing the Court fee of Rs.10/-. All these facts came to
light in the year 2025 when the representation took place and thereafter, the
present learned counsel had taken steps to represent the papers properly and
complied the defects pointed out by the Registry. If the facts stated by the
applicants are true, obviously, the applicants have been cheated by the
Advocate and it has to be necessarily followed up and professional
misconduct proceedings has to be initiated against the concerned Advocate
before the bar council. However, this issue cannot come to the aid of the
Court, while dealing with these applications since the power of the Court is
circumscribed under Section 34(3) of A and C Act. This Court cannot act
beyond the scope of Section 34 of A and C Act. Hence, this Court can only
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express its anguish disappointment for the conduct of learned counsel, who
had virtually betrayed the applicants and it has resulted in applicants losing
their valuable right to challenge the award under Section 34 of A and C Act.
Hence, it is left open to the applicants to independently proceed against the
concerned learned counsel, if so advised.
32. In the result, both the applications namely, A.Nos.4872 and 4874
of 2025 stand dismissed in the above terms. Consequently, Arbitration
Original Petition i.e., Arb.OP(Com.Div.)SR.No.95844 of 2023 stands
rejected at the SR stage itself.
23.10.2025
mk
Index: Yes
Speaking Order
Neutral Citation Case : Yes
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Appln.Nos.4872 and 4874 of 2025
N.ANAND VENKATESH, J.
mk
Appln.Nos.4872 and 4874 of 2025
in
Arb.O.P.(Com.Div.)SR.No.95844 of 2023
and
Arb.O.P.(Com.Div.)SR.No.95844 of 2023
23.10.2025
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