Full Text
HIGH COURT OF DELHI
Date of Decision: July 27, 2020
THREE C UNIVERSAL DEVELOPERS PRIVATE LIMITED &
ORS. ..... Petitioners
Through: Mr. Sudhanshu Batra, Sr. Adv. with Mr. Rishi Kapoor, Mr. Abhay Kaushik, Mr. Satish Rai and Ms. Suvriti Batra, Advs.
Through: Mr. Ciccu Mukhopadhaya, Sr. Adv. with Mr. Saurav Agrawal, Mr. Rajat Taimni, Mr. Madhav Misra, Mr. Ribhu Garg, Mr. Akash Ray and Mr. V.K.
Misra, Advs. for R-1 to R-6 Ms. Shivambika Sinha and Ms. Neelambika Singh, Advs. for R-14
JUDGMENT
1. The petitioners have filed the present petition with the following prayers: “
2. On June 29, 2020 an application seeking early hearing of the petition was filed by petitioner No. 2 herein, being I.A. 4901/2020. During the course of hearing of the application, Mr. Ciccu Mukhopadhaya learned Senior Counsel appearing for the respondent Nos. l - 6 (‘respondents’, for short), took an objection that the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (Act of 1996 for short) is barred by limitation.
3. Thereafter, when the matter was heard on the limited issue of limitation on July 15, 2020, Mr. Sudhanshu Batra learned Senior Counsel appearing for the petitioners had argued that the issue of limitation being raised is irrelevant for the adjudication of the present petition and submitted that the issue of limitation being raised by the respondents is only based on a belief, whereas the records procured from the website of this Court as well as the communications made to the petitioners by the Registry on record vide diary No. E-518648/2020 proves, the petition is within limitation.
4. He further stated that the petitioners in the instant matter have filed their objections under Section 34 of Act of 1996 seeking the setting aside of the Arbitral Award dated July 2, 2019 (hereinafter ‘Impugned Award’) as received by them on July 11, 2019. OMP (COMM) 461/2019 Page 3/27
5. According to Mr. Batra, the petition has been filed on October 01, 2019, on the 82nd day from the date of receipt of the Impugned Award which is well within the contours of limitation of 90 days (three months) from the date of receipt of the Impugned Award, as provided under S. 34(3) of the Act of 1996 and this is evident from the email dated October 01, 2019 that was received from delhihighcourt@nic.in.
6. Mr. Batra submitted that after the filing, defects marked and uploaded on the website of this Court on October 23, 2019 were rectified immediately by the petitioners and the petition was re-filed on October 23, 2019. He stated, that the petitioners being amply vigilant, mentioned the matter before this Court on October 24, 2019 on the basis of which the matter was listed on the directions of this Court on the next working day i.e. October 30, 2019 as the courts were closed from October 25, 2019 to October 29, 2019 on account of Diwali festivities. This information, he stated, can be corroborated from the email dated October 23, 2019 wherein the Registry of this Court listed the defects in Diary No. 1126739/2019 as well as the from the case records which suggests the mentioning of the instant petition on October 24, 2019.
7. Mr. Batra has argued that since the instant petition was filed well within 90 days as per Section 34 of the Act of 1996, i.e. on October 01, 2019, needs to be heard on merits. He stated that the objection of the respondents despite the documents including case information, which is the case log maintained by the Registry, being placed on record by the petitioners, is only to prevent the present petition from being heard by raking up hyper-technical and hypothetical issues, without any basis.
8. The petitioners in their written submission also stated that the record filed vide Diary No. E-518648/2020 is nothing but the OMP (COMM) 461/2019 Page 4/27 communications of Registry and the elaborate list of log which is already on record before this Court and therefore seeking the same again on one pretext or another by the respondents is an attempt to derail the proceedings.
9. It is stated in the submission that once the petition was filed within 90 days and listed within the timeline prescribed in the Delhi High Court (Original Side) Rules, 2018; neither did the Registry press for re-filing nor were any defects marked with respect to limitation, as it is evident from the records and the petition being listed prior to the statutory period under Section 34 (3) of the Act of 1996, there remains no reason as to why the baseless beliefs of the respondents should be catered to. Such submissions have been made only after the arguments were concluded and orders in relation to the issue were reserved on July 15, 2020. The respondents, at this belated stage, despite having the records of the Registry filed by the petitioners, did not raise any of these arguments earlier, due to which the respondents have waived off their opportunity of being heard on additional grounds and cannot raise issue in relation to any limitation aspect.
10. Mr. Batra has also argued that the reasons and nature of defects would be evident from the list of defects and has also explained that the same were curable keeping in mind the number of petitioners being twenty. The affidavits, vakalatnama and the pleadings were filed as would the list of defects reflect. In point 7 of the list of defects it would be evident that the affidavits were filed though some were filled in vernacular. “7. ……[N]ECESSARY AVERMENTS BE GIVEN SINCE THE AFFIDAVIT HAS BEEN SIGNED IN VERNACULAR.
NO OMP (COMM) 461/2019 Page 5/27 MODIFICATION IS ALLOWED.
IT SHOULD BE RE-TYPED AND ATTESTED.” Further point 9 of the list of defects would reflect that the vakalatnama was there though there were defects in title etc. which were also curable. “9…. [T]ITLE ON THE VAKALATNAMA BE CHECKED.
WELFARE STAMP BE AFFIXED.
SIGNATURE OF THE CLIENT BE IDENTIFIED.”
11. According to Mr. Batra, all the other defects would reflect that the same were curable and more so, when the petitioners having pursued the filing of the petition so vigilantly, no question should thus arise of limitation as it is not the case where the Petitioners have slept over their rights.
12. It was Mr. Batra’s submission that the respondents have tried to mislead the Court by ignoring the filing dated October 01, 2019 and the fact the same case history on the top right corner provides for further details clicking upon which the defect list of October 23, 2019 comes up which also has been filed vide E-518648/2020. He further stated that the respondents have ignored the fact that the case history of October 24, 2019 only to reflect to the numbering of the applications along with the petition which is the job of the Registry after the defects are removed. He also stated that the fact that the Diary No. 1126739/2019 given by the Registry vide its email dated October 01, 2019 has been eventually registered as the instant petition has also been concealed by the respondents.
13. Mr. Batra also stated that nowhere in the submissions made by the respondents, have they assailed the Registry’s email dated October OMP (COMM) 461/2019 Page 6/27 01, 2019 nor has the filing number been disputed and therefore, once the filing done on October 01, 2019 is not disputed then there would remain nothing in the submission of the respondents and prayed for dismissal of objection of the respondents.
14. On the other hand, Mr. Ciccu Mukhopadhaya learned Senior Counsel and Mr. Saurav Aggarwal, Ld. Counsel appearing for the respondents (‘Counsel’ for short), have argued that the matter was listed for the first time on October 30, 2019, when the petitioners were directed to provide a copy of the Section 34 petition filed under the Act of 1996, to respondents. It is a matter of record that on that date no notice was issued in the matter. The Counsel also admit that the Impugned award was received by the petitioners on July 11, 2019.
15. The Counsel stated that from the perusal of the documents served on the respondents, it transpires that the petition has been drafted on October 19, 2019, the statement of truth and supporting Affidavits were executed on October 22, 2019, the vakalatnama was executed on October 19, 2019 and the petition itself has been filed on October 24,
2019.
16. The Counsel stated that the ‘Case History’ showed date of filing as October 24, 2019 and in view of what had been provided, Section 34 petition under the Act of 1996 is time barred, since it was filed on the said date, after the expiry of the period of 3 months on October 11,
2019. The Counsel also stated that petition being time barred, cannot be entertained as it was not accompanied by an application for condonation of delay showing ‘sufficient cause’.
17. The Counsel further submitted that when this Court had directed the parties to file written submissions, the respondents in their written OMP (COMM) 461/2019 Page 7/27 submissions dated January 13, 2020 had pointed out that the petition is time barred.
18. The Counsel stated that the documents filed (without any affidavit) on July 11, 2020 by the petitioners consisted of three documents namely: i. “Print copy of the e-filing information received vide email dated 1st October, 2019 from delhihighcourt@nic.in ” ii. “Copy of the list of defects being uploaded on the website of the Hon’ble High Court of Delhi dated 23rd October, 2019” iii. “Copy of the case history available on the website of the Hon’ble High Court of Delhi in the instant matter”
19. The Counsel stated, it was for the first time disclosed through these documents that the petitioners had filed a petition on October 01, 2019, within the period of 3 months, vide Diary No. 1126739/2019 and it was that Diary No. 1126739/2019 which had been converted into the present petition under section 34 of the Act of 1996.
20. The Counsel stated that by filing the aforesaid ‘List of Documents’, the petitioners have sought to rely upon an email, from the Registry of this Court, dated October 01, 2019 wherein a diary number was assigned to the filing made by the petitioners’ counsel. The Counsel rebuts the statement by stating that no copy of the alleged filing had been served on the respondents or placed before this Court.
21. The Counsel vehemently submitted that the filing has to be treated to be done as on October 24, 2019; since as per the defect sheet, up till October 23, 2019, major defects still remained in the petition. OMP (COMM) 461/2019 Page 8/27 The Counsel also denied the service of any such petition which had been filed on October 01, 2019 and further stated that the said filing needs to deemed as non-est in nature, as it lacked vakalatnama, affidavit, statement of truth and signatures on the petition.
22. Responding to the argument advanced by Mr. Batra that the filing done on October 01, 2019 was a proper filing and contained a vakalatnama, affidavit, statement of truth, etc. and that the defects notified for the first time on October 23, 2019 by the Registry were rectified initially on October 23, 2019 and on October 24, 2019, the Counsel stated that there was no basis for the said submission as service was not completed on the respondents.
23. The Counsel also contested the stand taken by the petitioners that defects were notified for the first time after 22 days, as the defects are notified immediately or at the most within 3-4 days.
24. The Counsel further submitted that an email was sent to the counsel for the petitioners on July 15, 2020 requesting for a copy of the petition along with all the documents as filed in PDF format on October 01, 2019. Request was also made for a copy of all the emails sent or received from the registry in relation to the filing from October 01, 2019 to 24 October, 2019 along with attachments, copy of the various defect sheets as received and copies of all SMSs received between October 1, 2019 to October 24, 2019. The Counsel stated that this was necessary to test the veracity of the oral arguments made on behalf of the petitioners on July 15, 2020.
25. The Counsel stated as no response was forthcoming, the respondents filed an application, being IA No. 5866/2020, which came to be listed on July 21, 2020, wherein the Court ordered the petitioners OMP (COMM) 461/2019 Page 9/27 to serve upon the respondents the documents asked for. They submitted, the plea taken by the petitioners that the aforesaid documents had already been served on the respondents was incorrect. They further stated that instead of the documents directed to be served as per the order dated July 21, 2020, the petitioners re-served on the respondents the documents sent by the petitioners to the respondents on July 11, 2020; wherein the petitioners relied upon their filing done on October 01, 2019 without providing a copy of what was filed on October 01, 2019 in order to show that it was a filing done with the mandatory documents/requirements.
26. The Counsel stated that the aforementioned sequence of events demonstrates that the petitioners first relied on the filing made by them on October 01, 2019 and then even after having made these arguments, did not disclose/provide the complete set of documents filed on October 01, 2019 together with the list of defects notified by the Registry. The Counsel submitted that in the absence of these documents, the filing as done on October 01, 2019 was in fact non-est and amounted to nothing more than a bunch of papers.
27. On the question of whether the petition was filed on October 01, 2019 and if so whether that filing was a valid filing containing vakalatnama, affidavit, statement of truth, etc., the Counsel submitted that the onus is on the petitioners to show that they had filed a petition on October 01, 2019 and that such a filing was a valid one.
28. The Counsel stated that submissions have been made on behalf of the petitioners concerning exact nature of what was filed on October 01, 2019, but have failed to disclose the documents filed even after being repeatedly called upon to do so and no valid reason whatsoever OMP (COMM) 461/2019 Page 10/27 has been advanced for such non-disclosure and it cannot reasonably raise a plea that these documents are not in the power, possession or control of the petitioners having heavily relied upon them to justify filing done on October 01, 2019, as valid and proper.
29. The Counsel submitted that the petitioners deliberately concealed such documents although being in possession of the same, making this a fit case for drawing adverse inference against the petitioners. In other words, it is their submission that if the petitioners had disclosed the requested documents it would have supported the case of the respondents that the filing was non-est and was nothing more than a ‘bunch of papers’.
30. The Counsel also submitted that the Court should rely upon the defect sheet which would show that the filing was grossly inadequate and lacked vakalatnama, supporting affidavit, statement of truth, signatures on the petition etc. The very fact that the statement of truth and vakalatnama are dated October 19, 2019 or thereafter, shows that the present petition could not have been filed on October 01, 2019 and that such a filing was not a proper filing in the eye of law. Their pleas, in substance, are the following: i. The present petition could not have been filed on 01.10.2019 since the petition is stated to be drawn only on 19.10.2019. ii. The entire petition at various places [at Page 3, 4, 15, 22, 34 & 100; Index I], carries the date of 19.10.2019. OMP (COMM) 461/2019 Page 11/27 iii. Vakalatnama [Page 2-3; Index III] carries the date of 19.10.2019. The Vakalatnama bears the signature of only one Company. For the rest, only blank stamps have been affixed. iv. Further, the Affidavit in support of the petition [Page 104-107; Index III] and the Statement of Truth [Page 101-103; Index III] are dated 22.10.2019. v. The ‘List of Defects’ [Page 2; List of Documents dated 11.07.2020] maintained by the Ld. Registry shows that the filing contained fundamental defects even in the re-filing made on 23.10.2019. These defects included - no signatures by Petitioners or advocate on the Petition, no Statement of Truth, no supporting Affidavit, no Vakalatnama etc., all of which (collectively and individually) render a filing as non-est in law
31. The Counsel further submitted that even if there was a filing made on October 01, 2019, the status of such a filing without (a) vakalatnama; (b) Affidavit; (c) Statement of Truth; (d) without signatures etc., remained non-est in the eyes of law till October 23,
2019. The date of initial filing therefore, must be considered from the date on which such basic defects were removed i.e. October 24, 2019 and thus the filing was clearly beyond the 3 months period.
32. The Counsel requested that since a reply to email dated July 15, 2020 from the petitioners was not forthcoming, the Court should call for the log records in relation to the purported filing made by the petitioners dated October 01, 2019 till October 24, 2019. They submitted, the Registry would have notified defects through emails, SMSs and such communications have not been produced and that the list of defects as submitted by the petitioners shows the defects existing as on the original OMP (COMM) 461/2019 Page 12/27 filing and the re-filing date of October 23, 2019. They further submitted that this in no way means that the defects were notified on October 23, 2019 and re-filed, as otherwise it would not be possible for the petitioners to get the vakalatnama, statement of truth and affidavit of a date prior to the defect notification date which they claim to be October 23, 2019.
33. In support of their submissions above, the Counsel has relied on the following judgments:
(i) Executive Engineer Irrigation & Flood Control
(ii) Union of India v Ibrahim Uddin & Anr., 2012 8
(iii) ONGC v. Joint Venture of Sai Ram Engineering
(iv) OIC v. Air India, 2019 SCC OnLine Del 11634;
(v) SKS Power Generation (Chhattisgarh) Ltd. v. ISC
(vi) DDA v. Durga Construction, 2013 SCC OnLine
(vii) Steel Stripes Wheels Ltd. v. Tata AIG General
(viii) Chintels India v Bhayana Builders, in OMP
(ix) Ballumal A. Jaisingh v J.J. Builders & Ors., 2002
(x) Union of India v Bharat Biotech Pvt Ltd., 2020
(xi) Sravanthi Infratech Private Limited v. Greens
(xii) Simplex Infrastructure Ltd v UOI, (2019) 2
(xiii) State of Arunachal Pradesh v Damani
(xiv) Prakash Atlanta JV v National Highways Authority of India, 2016 SCC OnLine Del 743;
(xv) Assam Urban Water Supply & Sewarage Board v
34. Having heard the learned Counsels for the parties and perused the record, the issue that needs to be decided is whether the petition filed by the petitioner under Section 34 of the Act of 1996 is barred by time.
35. It is the case of the petitioners, which is not disputed by the Counsel for the respondents that the impugned Award dated July 2, 2019 was received by them only on July 11, 2019. A petition under section 34 of the Act of 1996 is required to be filed within 3 months from the date of receipt of the award.
36. It is the case of the petitioners that the petition was filed on the 82nd day i.e. October 01, 2019. The Counsel for the respondents have disputed this aspect. However, the log information provided by the Registry of this court reveal filing of a petition on October 01, 2019. OMP (COMM) 461/2019 Page 14/27 That apart the filing can also be seen from the email sent by the Registry of this Court to the representative of the petitioners on October 01, 2019. The communication reveals the Diary No. as 1126739/2019. So, it must be held that a petition was filed on October 01, 2019 which is within a period of 3 months of the from the date of receipt of the impugned Award.
37. The Counsel for the respondents stated (1) the petitioners have not placed on record, the documents / petition as filed by them on October 01, 2019. This is despite, them making a request to concerned counsel for obtaining the same and thereafter filing an application; (2) The petition filed on October 01, 2019 was not filed validly, i.e. filed without vakalatnama, affidavit, statement of truth etc., as the petition before this Court shows that these have been executed only on October 19, 2020 and October 22, 2020, so the filing on October 01, 2019 was in fact non-est; (3) the petition itself at various places carries the date as October 19, 2019; (4) even the defects pointed out by the Registry on October 23, 2019 was with regard to the lack of signatures by petitioners or advocate on the petition/application/power of attorney etc., absence of statement of truth, supporting affidavit, vakalatnama etc. rendering the filing non-est.
38. On the submission of Mr. Mukhopadhaya, Mr. Batra had submitted that the petition has been filed within the limitation period of 3 months. The defects pointed out by the Registry were curable, keeping in mind there are 20 petitioners. The affidavit, vakalatnama as well as the pleadings were duly filed, though some were in vernacular. Similarly, the vakalatnama was filed, though with some defects in the title etc., which were curable. OMP (COMM) 461/2019 Page 15/27
39. On a perusal of the log information, which I reproduce below I find that after the filing of the petition as Arbitration Petition, nomcenclatured as ARB.P., (not OMP (COMM)) on October 01, 2019, the petition was marked as defective and sent for re-filing on October 09, 2019. Before that on October 4, 2019, the observation of the Registry was, ‘Please see what you have filed and under which head, please file properly for proper scrutiny’. OMP (COMM) 461/2019 Page 16/27
40. It is a matter of record, a petition challenging an arbitral award filed under Section 34 of the Act of 1996 is nomenclatured as OMP (COMM). So, an Arbitration Petition could not have been filed. The petition in that regard was defective. It appears that the petition was taken back for curing the defects by the counsel for petitioners on or after October 9, 2019 and re-filed (twice) on October 23, 2019. The petition which has been filed by the petitioners on October 23, 2019 is a petition which consisted of index, urgent application, notice of motion, memo of parties, list of dates and events/synopsis and petition under Section 34 of Act of 1996 and all are dated October 19, 2019. There is no page in the petition before this court which is dated October 01,
2019. It is not known as to what happened to the petition filed on October 01, 2019. The Counsel for the respondents are justified in raising an issue that the petitioners did not disclose / place on record the documents / petition filed as on October 01, 2019. It appears that altogether a new petition has been prepared and filed by the petitioners on October 23, 2019 (initially at 11:47 am) with affidavits / statement of truth executed on October 22, 2019; vakalatnama on October 19, 2019 OMP (COMM) 461/2019 Page 17/27 that too as an Arbitration Petition. Even the court fee is also dated October 22, 2019. Regrettably, a plea has been taken by the counsel for the petitioners that after filing of the petition on October 01, 2019, the defects were put only on October 23, 2019, which was taken back and re-filed on October 23, 2019 itself, which from the perusal of log information is factually incorrect, as there were defects pointed out on October 9, 2019 also and the petition was taken back by the counsel on the said date or thereafter and a fresh petition (dated October 19, 2019) was filed on October 23, 2019. On the same day again, the petition was taken back in defects and re-filed at 3:40 pm as OMP (COMM). It is a clear case of concealment of facts from the Court.
41. It must be concluded that on October 23, 2019, a completely new petition was filed.
42. That apart, I find, the objections which were put by the Registry on October 23, 2019 were the following:
1. EACH PAGE OF PLEADING BE SIGNED BY THE PETITIONER/PETITIONERS.
BLANKS BE FILLED IN THE STATEMENT OF TRUTH.
2. PLEASE FILE IN NEW FORMAT IN FOUR PARTS WITH SEPARATE PAGINATION AND
┌─────────────────────────────────────────────────────────────────────────────────────── │ Index III] and the Statement of Truth [Page 101-103; Index │ III] are dated 22.10.2019. │ │ v. The ‘List of Defects’ [Page 2; List of Documents dated │ 11.07.2020] maintained by the Ld. Registry shows that the filing │ contained fundamental defects even in the re-filing made on │ 23.10.2019. These defects included - no signatures by │ Petitioners or advocate on the Petition, no Statement of Truth, │ no supporting Affidavit, no Vakalatnama etc., all of which │ (collectively and individually) render a filing as non-est in law │ │ 31. The Counsel further submitted that even if there was a filing │ made on October 01, 2019, the status of such a filing without (a) │ vakalatnama; (b) Affidavit; (c) Statement of Truth; (d) without │ signatures etc., remained non-est in the eyes of law till October 23, │ 2019. The date of initial filing therefore, must be considered from the │ date on which such basic defects were removed i.e. October 24, 2019 │ and thus the filing was clearly beyond the 3 months period. │ 32. The Counsel requested that since a reply to email dated July 15, │ 2020 from the petitioners was not forthcoming, the Court should call for │ the log records in relation to the purported filing made by the petitioners │ dated October 01, 2019 till October 24, 2019. They submitted, the │ Registry would have notified defects through emails, SMSs and such │ communications have not been produced and that the list of defects as │ submitted by the petitioners shows the defects existing as on the original │ │ OMP (COMM) 461/2019 Page 11/27 │ 2020:DHC:2377 │ │ filing and the re-filing date of October 23, 2019. They further submitted │ that this in no way means that the defects were notified on October 23, │ 2019 and re-filed, as otherwise it would not be possible for the │ petitioners to get the vakalatnama, statement of truth and affidavit of a │ date prior to the defect notification date which they claim to be October │ 23, 2019. │ 33. In support of their submissions above, the Counsel has relied on │ the following judgments: │ (i) Executive Engineer Irrigation & Flood Control │ Dept v Shree Ram Construction Co., 2007 SCC │ OnLine Del 1196; │ │ (ii) Union of India v Ibrahim Uddin & Anr., 2012 8 │ SCC 148; │ │ (iii) ONGC v. Joint Venture of Sai Ram Engineering │ Enterprises, 2019 SCC OnLine Del 10456; │ │ (iv) OIC v. Air India, 2019 SCC OnLine Del 11634; │ │ (v) SKS Power Generation (Chhattisgarh) Ltd. v. ISC │ Projects Pvt. Ltd., OMP (COMM) 132/2019; │ │ (vi) DDA v. Durga Construction, 2013 SCC OnLine │ Del 4451; │ │ (vii) Steel Stripes Wheels Ltd. v. Tata AIG General │ Insurance Co. Ltd., OMP (COMM) 507/2019; │ │ (viii) Chintels India v Bhayana Builders, in OMP │ (COMM) 444/2019 Judgment Dt June 04, 2020 │ [DHC]; │ │ (ix) Ballumal A. Jaisingh v J.J. Builders & Ors., 2002 │ │ OMP (COMM) 461/2019 Page 12/27 │ 2020:DHC:2377 │ │ SCC OnLine Bom 779; │ │ (x) Union of India v Bharat Biotech Pvt Ltd., 2020 │ SCC OnLine Del 483; │ │ (xi) Sravanthi Infratech Private Limited v. Greens │ Power Equipment (China) Co. Ltd., 2016 SCC │ OnLine Del 5645; │ │ (xii) Simplex Infrastructure Ltd v UOI, (2019) 2 │ SCC 455 │ │ (xiii) State of Arunachal Pradesh v Damani │ Construction Co., (2007) 10 SCC 742; │ │ (xiv) Prakash Atlanta JV v National Highways Authority │ of India, 2016 SCC OnLine Del 743; │ │ (xv) Assam Urban Water Supply & Sewarage Board v │ Subash Projects & Marketing Ltd., (2012) 2 SCC │ 62; │ │ 34. Having heard the learned Counsels for the parties and perused │ the record, the issue that needs to be decided is whether the petition filed │ by the petitioner under Section 34 of the Act of 1996 is barred by time. │ 35. It is the case of the petitioners, which is not disputed by the │ Counsel for the respondents that the impugned Award dated July 2, │ 2019 was received by them only on July 11, 2019. A petition under │ section 34 of the Act of 1996 is required to be filed within 3 months │ from the date of receipt of the award. │ 36. It is the case of the petitioners that the petition was filed on the │ 82nd day i.e. October 01, 2019. The Counsel for the respondents have │ disputed this aspect. However, the log information provided by the │ Registry of this court reveal filing of a petition on October 01, 2019. │ │ OMP (COMM) 461/2019 Page 13/27 │ 2020:DHC:2377 │ │ That apart the filing can also be seen from the email sent by the Registry │ of this Court to the representative of the petitioners on October 01, 2019. │ The communication reveals the Diary No. as 1126739/2019. So, it must │ be held that a petition was filed on October 01, 2019 which is within a │ period of 3 months of the from the date of receipt of the impugned │ Award. │ 37. The Counsel for the respondents stated (1) the petitioners have │ not placed on record, the documents / petition as filed by them on │ October 01, 2019. This is despite, them making a request to concerned │ counsel for obtaining the same and thereafter filing an application; (2) │ The petition filed on October 01, 2019 was not filed validly, i.e. filed │ without vakalatnama, affidavit, statement of truth etc., as the petition │ before this Court shows that these have been executed only on October │ 19, 2020 and October 22, 2020, so the filing on October 01, 2019 was in │ fact non-est; (3) the petition itself at various places carries the date as │ October 19, 2019; (4) even the defects pointed out by the Registry on │ October 23, 2019 was with regard to the lack of signatures by petitioners │ or advocate on the petition/application/power of attorney etc., absence │ of statement of truth, supporting affidavit, vakalatnama etc. rendering │ the filing non-est. │ 38. On the submission of Mr. Mukhopadhaya, Mr. Batra had │ submitted that the petition has been filed within the limitation period of │ 3 months. The defects pointed out by the Registry were curable, keeping │ in mind there are 20 petitioners. The affidavit, vakalatnama as well as │ the pleadings were duly filed, though some were in vernacular. │ Similarly, the vakalatnama was filed, though with some defects in the │ title etc., which were curable. │ │ OMP (COMM) 461/2019 Page 14/27 │ 2020:DHC:2377 │ │ 39. On a perusal of the log information, which I reproduce below I │ find that after the filing of the petition as Arbitration Petition, │ nomcenclatured as ARB.P., (not OMP (COMM)) on October 01, 2019, │ the petition was marked as defective and sent for re-filing on October │ 09, 2019. Before that on October 4, 2019, the observation of the │ Registry was, ‘Please see what you have filed and under which head, │ please file properly for proper scrutiny’. │ │ OMP (COMM) 461/2019 Page 15/27 │ 2020:DHC:2377 │ │ 40. It is a matter of record, a petition challenging an arbitral award │ filed under Section 34 of the Act of 1996 is nomenclatured as OMP │ (COMM). So, an Arbitration Petition could not have been filed. The │ petition in that regard was defective. It appears that the petition was │ taken back for curing the defects by the counsel for petitioners on or │ after October 9, 2019 and re-filed (twice) on October 23, 2019. The │ petition which has been filed by the petitioners on October 23, 2019 is a │ petition which consisted of index, urgent application, notice of motion, │ memo of parties, list of dates and events/synopsis and petition under │ Section 34 of Act of 1996 and all are dated October 19, 2019. There is │ no page in the petition before this court which is dated October 01, │ 2019. It is not known as to what happened to the petition filed on │ October 01, 2019. The Counsel for the respondents are justified in │ raising an issue that the petitioners did not disclose / place on record the │ documents / petition filed as on October 01, 2019. It appears that │ altogether a new petition has been prepared and filed by the petitioners │ on October 23, 2019 (initially at 11:47 am) with affidavits / statement of │ truth executed on October 22, 2019; vakalatnama on October 19, 2019 │ │ OMP (COMM) 461/2019 Page 16/27 │ 2020:DHC:2377 │ │ that too as an Arbitration Petition. Even the court fee is also dated │ October 22, 2019. Regrettably, a plea has been taken by the counsel for │ the petitioners that after filing of the petition on October 01, 2019, the │ defects were put only on October 23, 2019, which was taken back and │ re-filed on October 23, 2019 itself, which from the perusal of log │ information is factually incorrect, as there were defects pointed out on │ October 9, 2019 also and the petition was taken back by the counsel on │ the said date or thereafter and a fresh petition (dated October 19, 2019) │ was filed on October 23, 2019. On the same day again, the petition was │ taken back in defects and re-filed at 3:40 pm as OMP (COMM). It is a │ clear case of concealment of facts from the Court. │ 41. It must be concluded that on October 23, 2019, a completely │ new petition was filed. │ 42. That apart, I find, the objections which were put by the Registry │ on October 23, 2019 were the following: └───────────────────────────────────────────────────────────────────────────────────────
3. CERTIFICATE TO THE EFFECT THAT RELEVANT RECORD OF THE ARBITRATION PROCEEDINGS BEING THE RELEVANT PLEADINGS DOCUMENTS DEPOSITIONS ETC HAS BEEN FILED
4. CAVEAT REPORT BE OBTAINED AND AT THE TIME OF EACH SUBSEQUENT REFILING AND PROOF OF SERVICE BE FILED.
5. FRESH NOTICE OF MOTION UPON COUNSEL FOR CONCERNED RESPONDENT BE FILED IF OMP (COMM) 461/2019 Page 18/27 3 DAYS HAVE ELAPSED SINCE THE DATE OF LAST SERVICE.
ANY AMENDMENTS DONE IN THE PETITION SHOULD ALSO BE INFORMED/SERVED TO THE OPPOSITE/CONCERNED PARTY
6. PETITION/ APPLICATIONS/ MOP/ INDEX/ POWER OF ATTORNEY BE SIGNED AND DATED BY PETITIONERS AND ADVOCATE
7. AFFIDAVIT BE FILED IN SUPPORT OF PETITION/APPEAL/APPLICATION AND ATTESTED/IDENTIFIED.
PARENTAL DETAILS/AGE/COMPLETE ADDRESS BE GIVEN.
NECESSARY AVERMENTS BE GIVEN SINCE THE AFFIDAVIT HAS BEEN SIGNED IN VERNACULAR.
NO MODIFICATION IS ALLOWED.
IT SHOULD BE RE-TYPED AND ATTESTED.
8. DOCUMENT BE MADE TRUE COPY AT THE BOTTOM OF EACH PAGE AND SIGNED.
DOCUMENT NUMBER SHOULD BE MARKED PROPERLY IN THE INDEX AS WELL AS ON TOP OF THE
ANNEXURE FILED WITH THE PETITION.
9. VAKALATNAMA BE FILED / DATED AND SIGNED BY THE COUNSEL AND ALL PETITIONERS.
EACH ADVOCATE MUST MENTION THEIR NAME/ ADDRESS/ ENROLMENT NO.
MOBILE NUMBER IN VAKALATNAMA.
TITLE ON THE VAKALATNAMA BE CHECKED.
WELFARE STAMP BE AFFIXED.
SIGNATURE OF THE CLIENT BE IDENTIFIED.
10.
STATEMENT OF TRUTH BE FILED AS PER COMMERCIAL COURTS ACT, 2015.
ENTIRE PLEADINGS BE SIGNED BY THE PLAINTIFF/PETITIONER O XI- R-1(3) OF CPC (AMENDED)
BY COMMERCIAL COURTS ACT, 2015 -2018
11.
ADVANCE COPY OF PETITION/APPLICATION FILED U/S 9, 11, 14, 15, 27, 34, 37 OF OMP (COMM) 461/2019 Page 19/27 ARBITRATION AND CONCILIATION ACT. 1996 BE SERVED UPON OPPOSITE PARTY CH-III R-6 -2018 12..
13.
DESCRIPTION OF ANY OTHER DEFECTS:PLEASE SEE PREVIOUS OBJECTIONS.
BE FILED UNDER THE CORRECT HEAD.
FOR PROPER SCRUTINY AND LISTING.
14.
DESCRIPTION OF ANY OTHER DEFECTS:TOTAL 1425 PAGES FILED.
MASTER INDEX FORMAT BE FOLLOWED STRICTLY.
PLEASE MENTION THE SPECIFIC VALUE OF
THE PECUNIARY JURISDICTION. EACH PAGE
OF PLEADING BE SIGNED BY THE
PETITIONERS. AFFIDAVIT/STATEMENT OF
TRUTH OF EACH PETITIONER BE FILED.
SERVICE BE MADE TO THE ALL
RESPONDENTS. PLEASE CORRECT THE
VOLUME NO. IN THE DOCUMENTS AS
VOLUME -I IS MISSING. PAGE NO. 688 IS
MISSING IN THE DOCUMENTS. PAGE NO. 858
DOCUMENTS. PAGE NO. 1000,1100,1240 ARE
MISSING IN THE DOCUMENT. PLEASE
CORRECT THE PAGINATION. IN ADDITION TO
THE EFILING, 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. 15.
DESCRIPTION OF ANY OTHER DEFECTS:PLEASE SEE WHAT YOU HAVE FILED AND UNDER WHICH HEAD.
PLEASE FILE PROPERLY FOR PROPER SCRUTINY. OMP (COMM) 461/2019 Page 20/27
43. The defects as pointed out by the Registry, as noted above, more particularly at serial nos. 6, 7 and 9 are with regard to petition / application / MOP / Index/ Power of Attorney be signed by the petitioners and Advocate; Affidavit be filed; vakalatnama be filed. Even though the same are fundamental to the filing of a proper petition, the same have not been filed. It is noted that the petition is signed by one person only. Similarly, one affidavit has been filed in support of the petition. The same is the position with regard to vakalatnama, even though it consists of stamps of other petitioners in as much as it is signed on behalf of one company. What is important is the person who has signed the petition/ affidavit/ statement of truth/ vakalatnama, has not filed any power of attorney in his favour by the other companies. Even the Board resolution filed is on behalf of M/s. Three C Universal Developers Private Ltd. and not Hacienda Projects Pvt. Ltd. over whose stamp, the person Anand Ram has signed. The one single affidavit/ statement of truth/ vakalatnama would have been justified if the person signing them had the power of attorney from the other petitioner companies in his favour. In view of this position, the Registry has put the objections as noted at nos. 6, 7 and 9 above, that the petition/ applications / MOP/ Index/ Power of Attorney be signed and dated by the petitioners and Advocate. Even the vakalatnama was directed, to be filed/ dated and signed by the counsel and all the petitioners. In fact, I find that at 5:18 pm on October 23, 2019, the Registry has reiterated its objection that ‘Affidavit/Statement of Truths of each petitioner be filed’. This objection has not been cured by the Petitioners. The absence of supporting affidavit/ statement of truth/ vakalatnama are fatal defects, which has the effect on the filing being non-est. This Court in the case OMP (COMM) 461/2019 Page 21/27 of Sravanthi Infratech Private Limited (supra) has in paragraph 14 held as under: “14. 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 24 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 10 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.”
44. Another coordinate bench of this court in SKS Power Generation (Chhattisgarh) Ltd. (supra) held as under:
27. The judgment of Durga Construction (supra), in my opinion, completely covers the present case. The relevant paras are quoted as under:
46. On similar lines, a coordinate bench of this Court in ONGC (supra) has held:
47. Drawing inference from the above referred judgments, in the given facts, the petition having been filed only on October 23, 2019 (as a fresh petition and also not as a proper petition) which is beyond period of 3 months, which is the period of limitation for filing a petition for setting aside an arbitral award and in the absence of an application seeking condonation of delay showing sufficient cause, the period beyond 3 months cannot be condoned. The plea raised by Mr. Mukhopadhaya that the petition is barred by limitation needs to be accepted and as such the petition filed under Section 34 of the Act of 1996 challenging the award dated July 2, 2019 is not maintainable and the same is dismissed with costs of Rs. 2 lacs to be paid by the OMP (COMM) 461/2019 Page 27/27 petitioners to the Delhi High Court Advocates Welfare Fund within two weeks from today.
V. KAMESWAR RAO, J
JULY 27, 2020