9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (10) TMI 1540 - HC - Indian LawsSeeking condonation of delay of 27 days in filing the petition - petition is filed within the statutory period of 3 months prescribed under section 34 (3) of the Act or not - petition was filed within the extended period of 30 days under the Proviso or not - Section 34 of the Arbitration and Conciliation Act, 1996 - Whether the filing in the first or the second instance is a non- est filing? HELD THAT - In the present case, it is found 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 - 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. 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 - 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. 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 - 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. 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 - The application for condonation of delay, thus deserves to be dismissed as the delay cannot be condoned. The application seeking condonation of delay is thus dismissed.
Issues Involved:
1. Whether the petition is filed within the statutory period of 3 months prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996. 2. Whether the petition was filed within the extended period of 30 days under the Proviso to Section 34(3). 3. Whether the filing in the first or the second instance is a 'non-est' filing. Issue-wise Detailed Analysis: 1. Whether the petition is filed within the statutory period of 3 months prescribed under Section 34(3) of the Act: The statutory period for filing an application for setting aside an arbitral award is three months from the date of receipt of the award by the party. If the objections are filed beyond three months, the delay can be condoned up to a maximum of 30 days, provided the party shows 'sufficient cause' for the delay. The court emphasized that the legislative intent is to strictly adhere to this limitation period, as supported by the Supreme Court's ruling in Union of India vs. M/s. Popular Construction (2001) and Simplex Infrastructure Limited vs. Union of India (2019). In this case, the petitioner received the award on 23.10.2018, and the three-month period expired on 23.01.2019. The petitioner claimed to have filed the petition on 23.01.2019, but could not substantiate this claim as the documents were allegedly destroyed. The court found no evidence that the petition was filed within the statutory period, thus concluding that the petition was not filed within the three-month period prescribed under Section 34(3). 2. Whether the petition was filed within the extended period of 30 days under the Proviso to Section 34(3): The petitioner argued that even if the initial filing on 23.01.2019 was not considered, the filing on 20.02.2019 should be treated as the date of 'fresh' filing, which would be within the 30-day extended period. The court examined the defects marked by the Registry during the filing on 20.02.2019 and found that the petition was not properly signed, the affidavits were not attested, and the Vakalatnama was not filed. These defects rendered the filing on 20.02.2019 a 'non-est' filing. Further, the re-filing on 22.02.2019 was also found to be inadequate as only 10 pages of the index were filed, and the earlier defects were not cured. The court concluded that the filings on 20.02.2019 and 22.02.2019 were 'non-est' and could not stop the limitation period from running. 3. Whether the filing in the first or the second instance is a 'non-est' filing: The court referred to various judgments to establish what constitutes a 'non-est' filing. A 'non-est' filing is one that is so inadequate and insufficient that it cannot be considered a proper filing in the eyes of the law. Essential elements such as signatures on each page of the petition, a signed and attested affidavit, and a properly executed Vakalatnama are necessary for a filing to be considered valid. In this case, the court found that the filings on 20.02.2019 and 22.02.2019 lacked these essential elements, making them 'non-est' filings. The court emphasized that such filings cannot stop the limitation period and cannot be a ground for condoning the delay. Conclusion: The court dismissed the application for condonation of delay as the petitioner failed to show 'sufficient cause' for the delay within the statutory period of three months. The filings on 20.02.2019 and 22.02.2019 were deemed 'non-est' and could not stop the limitation period. Consequently, the petition was dismissed along with all other pending applications. The court highlighted that the petitioner, being a large Public Sector Undertaking, should have prosecuted its case diligently and filed a proper petition within the limitation period.
|
