Full Text
HIGH COURT OF DELHI
Date of Decision: 06th FEBURARY, 2026 IN THE MATTER OF:
IN
HARYANA VIDYUT PRASARAN NIGAM LTD .....Petitioner
Through: Appearance not given
Through: Mr. Kaustubh Sinha, Ms. Surbhi Mehta, Advocates
NATIONAL CONTRACTING COMPANY LIMITED.....Decree Holder
Through: Mr. Kaustubh Sinha, Ms. Surbhi Mehta, Advocates
Through: Appearance not given
JUDGMENT
1. I.A. 7790/2022 has been filed by the Petitioner seeking condonation SINGH KIRMOLIYA 03.09.54 of delay of 455 days in filing the petition.
2. I.A. 7791/2022 has been filed by the Petitioner seeking condonation of delay of 251 days in re-filing the petition.
3. The instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A&C Act”) has been filed by the Haryana Vidyut Prasaran Nigam Ltd/Petitioner for setting aside of the Arbitral Award dated 10.12.2019 passed by the Sole Arbitrator (hereinafter referred to as “Arbitral Tribunal”).
4. Vide the Impugned Order, the Arbitral Tribunal awarded the National Contracting Company Limited Saudi Arabia/Claimant a sum of Rs. 10.79 crores against their claim of Rs. 29.11 crore with interest @10% per annum from the date of the Award until the actual payment.
5. Shorn of unnecessary details, the facts as stated in the Section 34 petition are as follows: a. The Petitioner is a Company incorporated under the Indian Companies Act, 1956 inter alia, with the object of creating infrastructure related to transmission of electricity and acting as an agent of Government and/or Public Sector Financial Corporations. In furtherance of its object and depending upon the specific requirements of the project the Petitioner engages and appoints third parties/ organizations as required. b. The Respondent is a Corporation incorporated under the Ministry of Commerce and Industry, Kingdom of Saudi Arabia The Respondent is engaged in the business of transmission and distribution of the electricity, including medium to high voltage products for utility, energy and infrastructure in the Energy and Infrastructure Market. 03.09.54 c. The dispute has its genesis in a developmental intuitive under the World Bank, which in furtherance of its developmental agenda, has been providing infrastructural developmental assistance to various developing countries. In pursuit of the same, a grant was accorded for development of electricity infrastructure in the state of Haryana under “Haryana Power System Improvement Project” (hereinafter referred to as “the Project”). d. The Project was to be conducted under the aegis of the World Bank and in accordance with the terms and conditions imposed by it. The project had certain prescribed timelines for completion and the Petitioner was responsible for development of infrastructure in various areas of Haryana. e. Accordingly, a Notification bearing No. LR73/DS(P)-113, dated 07.08.2008, was published in the Gazette of the State of Haryana, whereby the Petitioner was proposed to undertake construction of 103 transmission lines and sub-stations in Haryana. These transmission lines and sub-stations had different specifications and the work of these lines/sub-stations includes the absolute specialization in the creation of the said infrastructure. f. The Petitioner advertised the said notification in the newspaper Dainik Bhaskar on 09.08.2008 and in The Tribune on 10.08.2008 and on 14.05.2009, they issued an International Competitive Bid (hereinafter referred to as “ICB”) IFB No. WB/2008/G-04 dated 14.05.2009 for 220 KV Transmission Line Package-A & Transmission Line Package-B. g. The Respondent submitted its bid vide their letters No. RES/ 198/576 03.09.54 and RES/198/577 dated 06.07.2009 for both the Packages and in response thereto on 06.08.2009, the Petitioner issued a Letter of Acceptance for both these packages and on 08.09.2009, the parties entered into two separate contracts for the execution of the progress of the project. h. Since the Project was being carried out under the supervision of the World Bank, the Petitioner was to give a timely appraisal of the progress of the project to the World Bank. It is the case of the Petitioner that as per the terms of the Contract the work was to be completed within a period of 450 days. On 13.11.2009, the Petitioner issued a letter to Respondent, informing them that the execution date i.e., 08.09.2009 would be the Effected Date for completion of the contracts, thereby making the proposed date of completion of the project 01.12.2010. i. Disputes arose between the parties on account of execution of work awarded under the contract. Work was delayed due to multiple reasons and numerous correspondences letters were exchanged between the parties. Vide its letter dated 30.12.2009, the Petitioner formally refused to grant an extension for the effective date of the completion of the contract. j. It is the case of the Petitioner that irrespective of repeated correspondences the progress of the Project was abysmal and Package-A was completed after a delay of more than 1621 days whereas Package-B was completed after a delay of about 1855 days. k. The Respondent upon being dissatisfied with the decision taken by the Petitioner regarding extension of time sent a notice to the Petitioner 03.09.54 invoking Arbitration on 16.10.2017 followed by another notice under Section 21 of the Act on 21.11.2017. Thereafter vide their letter dated 10.01.2017 the Petitioner sought appointment of a Sole Arbitrator with the consent of the parties. l. However, since the parties were not ad idem about who should be nominated, the Respondent filed its Request for Arbitration on 01.08.2018 in terms of Rule 4 of the International Chamber of Commerce (hereinafter referred to as “ICC”) Rules. The Respondent proposed the place of Arbitration to be at Delhi. Thereafter on 24.08.2016 the ICC International Court of Arbitration appointed the Sole Arbitrator. m. The proceedings were completed on 05.09.2019 and the impugned Award was passed in favour of the Respondents herein on 10.12.2019, leading to the filing of the present Section 34 petition.
6. At the threshold, the learned Counsel for the Respondent has submitted that the present petition filed under Section 34 of the Act is barred by limitation. In support of his submission, the learned Counsel for the Respondent has advanced the following contentions: a. The impugned Award was passed on 10.12.2019, therefore the objection petition should have been filed on or before 09.03.2020. This is the admitted position in terms of the Petitioner’s application. Therefore, there is a delay of 706 days in filing the petition, which includes a delay of 251 days in re-filing the petition. b. By their I.A. 7790/2022 & I.A. 7791/2022 the Petitioner is seeking to take the benefit of the order passed by the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 In Re: Cognizance for Extension of 03.09.54 Limitation for enlarging the period up to which delay can be condoned as per the discretion of the Court. The said reliance is wrong and misplaced on account of clear dictum of the Apex Court in Sagufa Ahmed & Ors v. Upper Assam Products Pvt Ltd & Ors, Civil Appeals No. 3007-3008/2020, wherein vide Judgment dated 18th September, 2020 the Apex Court has clarified that what was extended by its order in Suo Motu Writ Petition (Civil) No. 3/2020 In Re: Cognizance for Extension of Limitation was only the "period of limitation" and not the period up to which delay can be condoned in exercise of discretion “conferred by the statute". c. The law of limitation finds its root in two Latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. The grounds pleaded by the Petitioner in their application for condonation of delay in filing and refiling are completely untenable and contains vague averments, which cannot be permitted. The said application merely reflects the lethargic approach of the Petitioner, which reflects the lackadaisical decision making process.
7. Per contra, learned Counsel for the Petitioner has vehemently opposed the arguments which have been advanced by the learned Counsel for the Respondent and submits that the present Petition is within limitation. To substantiate his contentions, the learned Counsel for the Petitioner has advanced the following arguments: a. A signed copy of the impugned Award was received by the Petitioner on 17.12.2019 as the copy of the Award was sent to the Petitioner 03.09.54 vide letter dated 17.12.2019. Therefore, as per Section 34 of the A&C Act the limitation expires on 16.03.2020 and the present petition was filed on 11.03.2020. b. Reliance has been placed on the Order dated 10.01.2022 in Suo Motu Writ Petition (Civil) No. 3/2020 - In Re: Cognizance for Extension of Limitation, whereby the Apex Court clarified that the period of 15.03.2020 to 28.02.2022 shall stand excluded for all limitation calculations. c. That in terms of the Order dated 10.01.2022, the limitation for the present Petition, which would have ordinarily expired on 16.03.2020 would stood excluded up to 28.02.2022 and a fresh limitation period of 90 days would have commenced from 01.03.2022. d. A second petition was filed on 01.06.2021 and the same was registered on 17.05.2022. Thus, the present Petition having been filed on 01.06.2021 was registered on 17.05.2022 and is, therefore, well within limitation and not barred by the latches of limitation.
8. Heard learned Counsels for the parties and perused the material on record.
9. The petition under Section 34 of the A&C Act was filed two times. The first one was filed on 11.03.2020 vide Diary No. 379712/2020. However, the said filing was abandoned and a fresh petition under Section 34 of the Act was filed vide Diary No. 392160/2021 on 01.06.2021. It is contended by the learned Counsel for the Respondent that the filing of petition on 01.06.2021 is completely a non-est filing.
10. A co-ordinate Bench of this Court vide Order dated 23.09.2024 while considering as to whether filing of the petition vide Diary No. 392160/2021 03.09.54 on 01.06.2021 was proper or not has observed as under:
11. When the petition was filed on 01.06.2021, the Courts were only partially functioning due to COVID-19 and the Apex Court had been passing directions regarding calculation of limitation period. The last of the said directions was passed by the Apex Court vide Order dated 10.01.2022 in Suo Motu Writ Petition (Civil) No. 3/2020 - In Re: Cognizance for Extension of Limitation. Paragraph No.5 of the said Order which clarifies the position regarding calculation of limitation reads as under:
12. Applying the aforesaid Order to the facts of this case, it is seen that the Award was passed on 10.12.2019 and the signed copy of the Award was received by the Petitioner on 17.12.2019. The challenge to the Award, therefore, should have been made within three months i.e., on or before 17.03.2020. On 17.03.2020, the period of 90 days was over and the grace 03.09.54 period of 30 days started. On 17.03.2020, the Order dated 10.01.2022 passed by the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 - In Re: Cognizance for Extension of Limitation regarding the calculation of limitation had commenced wherein the limitations expired after 15.03.2020 till 28.02.2022 were to be excluded in computing the limitation. Applying the Paragraph No.5 of the Order dated 10.01.2022, the period of limitation of three months would have commenced from 01.03.2022. Since in the present case, the balance period of limitation is lesser than the period of 90 days, the period for filing the petition under Section 34 of the A&C Act automatically get extended to 01.06.2022. Therefore, the second petition filed vide Diary No. 392160/2021 on 01.06.2021, which was ultimately pursued by the Petitioner, was within limitation. The only issue that remains to be considered is whether the defects in this petition were cured within time or not. A perusal of the filing log indicates that all the defects, including the filing of Statement of Truth, were cured on 07.05.2022 which is well before time.
13. In view of the above, this Court is of the opinion that the issue as to whether the filing of the petition under Section 34 of the A&C Act was nonest or not does not arise.
14. This Court is also supported by a Judgment passed by a Co-ordinate Bench of this Court in Omaxe Ltd. v. Joginder Singh Nijjar, 2023 SCC OnLine Del 4286 wherein the Co-ordinate Bench of this Court has observed as under: “53. The Supreme Court in Cognizance for Extension of Limitation, In re [Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn., (1971) 2 SCC 860], observed as under: (SCC pp. 119-120, paras 5-5.4) 03.09.54 “5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions:
5.1. The order dated 23-3-2020 in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: (2021) 3 SCC (Cri) 801: (2020) 220 Comp Cas 447: (2020) 424 ITR 314] is restored and in continuation of the subsequent order dated 8-3- 2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452: (2021) 3 SCC (Civ) 40: (2021) 2 SCC (Cri) 615: (2021) 2 SCC (L&S) 50: (2021) 225 Comp Cas 365: (2021) 432 ITR 206], 27-4-2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231: (2021) 226 Comp Cas 127] and 23-9-2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250: (2021) 228 Comp Cas 325: (2021) 438 ITR 296], it is directed that the period from 15-3-2020 till 28-2-2022 shall extend excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
5.2. Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022.
5.3. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-
2022. In the event the actual balance period of 03.09.54 limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply.
5.4. It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or Tribunal can condone delay) and termination of proceedings.”
54. The matter was taken up by the Supreme Court on 23-3-2020 in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: (2021) 3 SCC (Cri) 801: (2020) 220 Comp Cas 447: (2020) 424 ITR 314], and as a result of that order, the period for filing petitions, applications, suits, appeals, and any other proceedings, regardless of the time-limit set forth under general or special laws, was extended with effect from 15-3-2020 until further orders. Subsequent to which by March 2021, it became apparent that the nation was returning to normal. Since all courts and tribunals had begun operating, either physically or virtually, at that point, the Supreme Court ended the exclusion of period from limitation in March of that year. However, as the situation again gained momentum, on 27-4-2021, the Supreme Court reinstated the order until further orders in response to a request made in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231: (2021) 226 Comp Cas 127]. 03.09.54
55. The Supreme Court then decided in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250: (2021) 228 Comp Cas 325: (2021) 438 ITR 296] in the said case on 23-9-2021 and held as under: (SCC p. 254, paras 8-8.3) “8. Therefore, we dispose of MA No. 665 of 2021 with the following directions:
8.1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15-3-2020 till 2-10-2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15-3-2021, if any, shall become available with effect from 3-10-2021.
8.2. In cases where the limitation would have expired during the period between 15-3-2020 till 2-10-2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3-10-
2021. In the event the actual balance period of limitation remaining, with effect from 3-10-2021, is greater than 90 days, that longer period shall apply.
8.3. The period from 15-3-2020 till 2-10-2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.” 03.09.54
56. Conclusively, the period from 15-3-2020 to 28- 2-2022 stood excluded for the purposes of limitation. This Court finds no reason to come to the conclusion that the Supreme Court's order dated 10-1-2022 in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117: (2022) 2 SCC (Civ) 46: (2022) 1 SCC (Cri) 580: (2022) 1 SCC (L&S) 501: (2022) 230 Comp Cas 423: (2022) 441 ITR 722] would be inapplicable to petitions under Section 34 of the Arbitration and Conciliation Act. The language of the order, which uses the generic terms “general or special laws in respect of all judicial or quasi-judicial proceedings”, is wide enough to include an application raising objections under Section 34 of the Act, 1996. The purpose of these orders was to temporarily obviate the stringency of the limitation laws, in light of the difficulties being faced by litigants and the entire nation due to the outbreak of COVID-19 and the resultant drastic measures which were taken by the Central and the State Governments at the time. Needless to mention, such a rationale would and ought to apply to petitions under Section 34 of the Act, 1996 also.
57. As per the order, in cases where the limitation would have expired during this period, then notwithstanding the actual balance period of limitation remaining, all persons were to have a fresh period of 90 days beginning from 1-3-2022. The instant petition, being filed on 21-4-2022, i.e. within 51 days after the limitation period of 90 days as per the Supreme Court order was to start running.” (emphasis supplied)
15. Learned Counsel for the Petitioner has placed reliance upon a Judgment passed by the Full Bench of this Court in Pragati Construction 03.09.54 Consultants v. Union of India, 2025 SCC OnLine Del 636 wherein the Full Bench was constituted in order to give an authoritative pronouncement as to what would constitute a non-est filing. Paragraph No.97 of the said Judgment reads as under: “97. We summarise our answer to the reference, as under: (a) Non-filing of the arbitral award along with 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.” 03.09.54
16. The Apex Court in Prakash Corporates v. Dee Vee Projects Ltd., (2022) 5 SCC 112 has noticed the effect of the COVID-19 and the principles which must be taken into account while considering the aspect of limitation. The relevant excerpt reads as under:- “28. As regards the operation and effect of the orders passed by this Court in SMWP No. 3 of 2020, noticeable it is that even though in the initial order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: (2021) 3 SCC (Cri) 801], this Court provided that the period of limitation in all the proceedings, irrespective of that prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15-3- 2020 but, while concluding the matter on 23-9-2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250: 2021 SCC OnLine SC 947], this Court specifically provided for exclusion of the period from 15-3-2020 till 2-10-2021. A look at the scheme of the Limitation Act, 1963 makes it clear that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months' notice for a suit against the Government [ Vide Section 15 of the Limitation Act, 1963.] ). The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed. 03.09.54
28.1. Having regard to the purpose for which this Court had exercised the plenary powers under Article 142 of the Constitution of India and issued necessary orders from time to time in SMWP No. 3 of 2020, we are clearly of the view that the period envisaged finally in the order dated 23-9-2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250: 2021 SCC OnLine SC 947] is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable. It gets perforce reiterated that the orders in SMWP No. 3 of 2020 were of extraordinary measures in extraordinary circumstances and their operation cannot be curtailed with reference to the ordinary operation of law.
28.2. In other words, the orders passed by this Court on 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10: (2021) 3 SCC (Cri) 801], 6-5-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 9: (2021) 3 SCC (Cri) 799], 10-7-2020 [Cognizance for Extension of Limitation, In re, (2020) 9 SCC 468], 27-4-2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231: 2021 SCC OnLine SC 373] and 23-9-2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250: 2021 SCC OnLine SC 947] in SMWP No. 3 of 2020 leave nothing to doubt that special and extraordinary measures were provided by this Court for advancing the cause of justice in the wake of challenges thrown by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and 03.09.54 therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15-3-2020 to 2-10-2021) could still be filed within 90 days from 3-10-2021 but the period for filing written statement, if expired during that period, has to operate against the defendant.”
17. Material on record indicates that the Award had been filed along with the petition at the first instance and more or less all the important defects were cured before the limitation period expired and in any event, due to outbreak of COVID-19, the period between 15.03.2020 till 28.02.2022 anyway got excluded.
18. Applying all the above principles, this Court is of the opinion that the Petitioner is entitled to the benefit of the Order dated 10.01.2022 passed by the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 - In Re: Cognizance for Extension of Limitation.
19. The applications are allowed. O.M.P. (COMM) 228/2022 & I.A. 7787/2022 OMP (ENF.) (COMM.) 148/2022 List on 08.07.2026.
SUBRAMONIUM PRASAD, J FEBURARY 06, 2026