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HIGH COURT OF DELHI
O.M.P. (COMM) 137/2019
Date of Decision: 06.07.2023 IN THE MATTER OF:
MR. RAVI BATRA ..... Petitioner
Through: Mr. Raman Kapur, Sr. Advocate with Mr. Dhiraj Sachdeva, Advocate
Through: Ms. George Pothan Poothicote, Ms. Manisha Singh, Mr.Ashu
Pathak and Ms. Jyoti Singh, Advocates
JUDGMENT
1. By way of present application, the petitioner seeks condonation of delay of 9 days in re-filing the present petition filed under Section 34 of the Arbitration & Conciliation Act (hereinafter, the A&C Act) impugning Award dated 20.11.2018 delivered by the Arbitral Tribunal comprising of Sole Arbitrator in relation to Contract Agreement dated 15.12.2012 entered into between the parties.
2. The respondent has taken an objection that the initial filing of the petition on 15.02.2019 was not a valid filing and as such, was non est. In response, the petitioner has placed on record an affidavit giving details of filing status as on 15.02.2019 as well as the objections raised by the Registry.
3. Mr. Raman Kapoor, learned Senior Counsel for the petitioner contended that the petition was filed within limitation on 15.02.2019 was a substantive and valid petition complete in all respects. The petition was duly signed and at the time of initial filing, it was accompanied with duly sworn affidavit, the impugned Award and the Vakalatnama. Registry raised objections, which were only procedural, and after removing the defects, the petition was re-filed on 20.03.2019. Again, after removing objections, it was re-filed on 01.04.2019. While explaining the delay of 9 days in re-filing of the petition, learned Senior Counsel submitted that the counsel on record was present in court premises, when he suffered cardiac pain on 15.02.2019. He was rushed to the RML Hospital and later, underwent stenting procedure on 21.02.2019. After recovery and discharge from the hospital, the counsel could take steps to remove the defects and re-file the petition.
4. Learned counsel for the respondent, while opposing the submissions, contended that the petition filed on 15.02.2019 was incomplete, invalid and barred by limitation. She further submitted that initially the petition contained 81 pages whereas at the time of listing, it comprised of 2686 pages. Learned counsel also referred to the decision of a Coordinate Bench of this Court in Ircon International Ltd. v. Reacon Engineers (India) Pvt. Ltd. reported as 2022 SCC OnLine Del 1860.
5. Indisputably, the present petition impugning the Award dated 20.11.2018 was filed on 15.02.2019 i.e. within the statutory period of limitation as prescribed under Section 34 of the A&C Act. The short issue involved in the present case is whether the petition that was filed on 15.02.2019 can be held to be valid and not non est. The petitioner alongwith his affidavit placed on record the list of defects marked by the Registry at the time of scrutiny. The List indicated that following defects were marked on 16.02.2019:-
┌───────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Defects marked during Scrutiny Date of Date of │ │ No Defects Defect │ │ . Marked Remov │ │ ed │ │ 1 (1) – EACH PAGE OF PLEADINGS BE 16/02/2019 - │ │ SIGNED BY THE PETITIONER/ │ │ PETITIONERS. BLANKS BE FILLED IN THE │ │ STATEMENT OF TRUTH. │ │ 2 (2) – PLEASE INSERT AVERMENT BEFORE 16/02/2019 - │ │ THE PRAYER REGARDING COMMERCIAL │ │ DISPUTE AS PER PRACTICE DIRECTION. │ │ 3 (5) – PLEASE INSERT THE PARA OF 16/02/2019 - │ │ PECUNIARY JURISDICTION WITH VALUE │ │ OR IT SHOULD BE STATED HOW THE │ │ PETITION IS MAINTAINABLE AS PER │ │ PECUNIARY JURISDICTION. │ │ 4 (96) – CERTIFICATTE TO THE EFFECT 16/02/2019 - │ │ THAT RELEVANT RECORD OF THE │ │ ARBITRATION PROCEEDINIGS BEING THE │ │ RELEVANT PLEADINGS DOCUMENTS │ │ DEPOSITIONS ETC. HAS BEEN FILED │ │ 5 (97) – DOCUMENT SHALL BE FILED ONLY 16/02/2019 - │ │ WITH A LIST OF DOCUMENTS. NO │ │ DOCUMENT SHALL BE FILED AS │ │ ANNEXURE TO ANY PLEADING. CH IV R │ │ I-G DHC OS RULES │ │ 6 (201) – Caveat report be obtained and at the time 16/02/2019 - │ │ of each subsequent refiling and proof of service │ │ be filed. │ │ 7 (202) – Fresh notice of Motion upon Counsel for 16/02/2019 - │ │ concerned respondent be filed if 3 days have │ │ elapsed since the date of last service. Any │ │ Signature Not Verified O.M.P. (COMM) 137/2019 Page 3 of 8 │ └───────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
1.[5] LINE SPACING WITH 14 FONT SIZE IN PDF/OCR FORMAT, CH-III, R-1(II) -2018 Any Other Defects Marked on 17 Description of any other Defects: TOTAL 81 PAGES FILED. 16/02/2 NO I.A. FILED INDEXES BE SIGNED.
IN ADDITION TO THE E-FILING, IT IS MANDATORY TO FILE HARD COPIES OF THE FRESH MATTERS FILED UNDER SECTION 9, 11, AND 34 OF THE ARB. ACT. 1996 WITH EFFECT FROM 22.10.2018.
6. A perusal of the above list would show that it did not indicate that the petition was not signed or was not accompanied by any affidavit, Award or Vakalatnama. Section 34 of the A&C Act prescribes grounds for making an application to challenge an Award but does not specify any procedure for filing of such an application. Notably, a similar issue cropped up before the Division Bench of this Court in Oil & Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering Enterprises (SREE) & Megha Engineering & Infrastructure Limited (MEIL) reported as 2019 SCC OnLine Del 10456 wherein it was observed as under:-
7. The aforementioned list of defects when seen in the light of the observations made by the Division Bench, by no stretch of imagination indicate defects which were so fundamental to the filing of the petition that would make the filing invalid and non est. All the defects that were marked, were rather procedural in nature. In the considered opinion of this Court, the objections raised by the defendant are misconceived and merits rejection.
8. Coming to the next issue whether the delay of 9 days in re-filing the petition can be condoned. As per the explanation put forth by the petitioner, on 15.02.2019 itself, after filing of the petition the counsel had to be rushed to the RML Hospital where he was diagnosed with cardiac issues. The counsel underwent stenting procedure on 21.02.2019. The said plea is also supported by the medical records of the concerned hospital which have not been disputed. Pertinently, a Division Bench of this Court while condoning the delay of 23 days in filing petition under Section 34 of the A&C Act in Delhi Development Authority v. Ajab Singh & Co. reported as 2022 SCC OnLine Del 2236 observed that the Court should adopt liberal and justice-oriented approach in the matter of condonation of delay. To the similar extent are the observations of the Supreme Court in Northern Railway v. Pioneer Publicity Pvt. Ltd. reported (2017) 11 SCC 234 and Single Judge of this Court in M/s Himachal Futuristic v. I.T.I. Ltd. reported as 2017 SCC OnLine Del 8522. The respondent’s reference to decision in Ircon International (Supra) is misplaced as in the said case the petition was not accompanied by the impugned Award.
9. Considering the explanation placed on the record for delay of 9 days in refiling, which remains undisputed, the application is allowed and delay is condoned.
10. Application is disposed of in the above terms. I.A. 9824/2019 (u/Sec. 151 CPC by respondent)
1. By way of present application, the respondent is seeking condonation of delay of 35 days in filing the reply to the petition, to which learned Senior Counsel for the petitioner, on instructions, fairly submits that he has no objection. Accordingly, the application is allowed and the delay of 35 days in filing the reply is condoned. The reply is taken on record.
2. Application is disposed of in the above terms. I.A. 9825/2019 In view of the order passed in I.A. 4887/2019, the present application has become infructuous and the same is disposed of accordingly. Renotify on 03.11.2023.
JUDGE JULY 6, 2023