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TMI Blog2019 (10) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondoned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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