Good Health Agro Tech Pvt Ltd v. Haldiram Snacks Pvt Ltd

1. Mr. Varun Goswami, learned Counsel for the respondent raised a preliminary objection to the maintainability of this petition, on the ground that it was filed beyond 120 days from the date of receipt of the arbitral award under challenge.

2. I have heard the learned Counsel for both sides on this aspect.

3. Undisputedly, the impugned arbitral award was received by the petitioner on 31 March 2023. The present petition under Section 34 of the Arbitration and Conciliation Act 1996[1] first came to be filed on 25 “the 1996 Act”, hereinafter July 2023. It was returned with defects, where after it was re-filed on 19 September 2023 (though Mr Goswami, learned Counsel for the respondent, contends that it was refiled on 25 September 2023).

4. Mr. Dhruv Gupta, learned Counsel for the petitioner, has drawn attention to a Notification dated 17 May 2023, issued by this Court while making arrangements for the summer vacations in 2023. Note 5 in the said notification read thus: “5. Limitation will not run during the vacation period for purposes of institution of Civil and Criminal cases.” Mr. Dhruv Gupta’s contention is that, if one were to reckon limitation from 31 March 2023, and if limitation were come to a halt during the summer vacation, the petition, as first filed on 25 July 2023, was within the normal period of 90 days contemplated by Section 34(3)2 of the 1996 Act.

5. Though Mr. Goswami has sought to submit that the stipulation regarding the limitation not running during vacations, as contained in note 5 in the notification dated 17 May 2023 would apply only to cases in which limitation for filing the proceeding expires during vacations, and is intended to enable the party to, in such a case, file the proceedings on the first day of re-opening. Note 5 of the notification does not explicitly so state, though that is the normal understanding of the legal position. (3) An application for setting aside may not be made after three months have elapsed from the date on which the 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

6. For the purposes of the present order, therefore, I proceed on the premise that 25 July 2023, on which date, the petition is stated to have been first filed, was within the normal period of 90 days available under Section 34(3) of the 1996 Act.

7. Mr. Goswami submits that, even if this were the position, the filing of this petition on 25 July 2023 is a non est filing and, therefore, the petition has to be taken as first having been filed in September 2023 whether it is on the 19th or the 25th. In either event, he submits that, as 120 days from the date of the receipt of the award had expired by then, the petition cannot be entertained.

8. The fate of the petition, therefore, turns on whether the filing of the petition on 25 July 2023 was a non est filing or a valid filing.

9. In the present case, the filing of the petition on 25 July 2023 was admittedly unaccompanied by any document, including the impugned arbitral award. All documents, including the impugned arbitral award, came to be first filed in September 2023.

10. Mr. Dhruv Gupta places reliance on the decision of the Coordinate Bench of this Court in Ambrosia Corner House Pvt Ltd v Hangro S Foods[3].

11. On facts, there can be no gainsaying the similarity between the period of thirty days, but not thereafter. 2023 SCC OnLine Del 517 position which obtained before the Coordinate Bench in Ambrosia Corner House and that which obtains in the present case. In that case, too, the initial petition was filed without any documents and the documents, including the impugned arbitral award, came to be filed separately in Part IV of the paper book after 120 days from the date of receipt of the arbitral award had expired.

12. The Coordinate Bench gave an expansive interpretation to the earlier decision of the Division Bench of this Court in ONGC v Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd (Meil)4 and held that, even if no documents were filed with the petition, that would not inexorably render the filing non est. Paragraph 19 of the decision in Ambrosia Corner House sets out the conclusion of the Coordinate Bench thus:

13. I must confess that I have my reservations regarding the correctness of paragraph 19 of the decision of the Coordinate Bench in Ambrosia Corner House, vis-à-vis the decision in ONGC. Paragraph 41 of the decision of the Division Bench in ONGC specifically concludes thus: