STEEL AUTHORITY OF INDIA LTD vs JSC CRYOGENMASH

2024-04-30 Information

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 30th April, 2024
+ O.M.P. (COMM) 509/2018, I.A. 17233/2018, 1781/2020, 1782/2020 & 2080/2020

STEEL AUTHORITY OF INDIA LTD ….. Petitioner
Through: Mr. Arun Kathpalia, Senior Advocate with Ms. Raveena Rai, Ms. Apeksha Dhanvijay and Mr. Aditya, Advocates.

versus

JSC CRYOGENMASH ….. Respondent
Through: Mr. Sandeep Sethi, Senior Advocate with Mr. Jafar Alam, Ms. Shivani Khandekar, Mr. Akshay Bhatia, Ms. Sheniza Farid and Mr. Sumer Seth, Advocates.

CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
1. This petition has been filed on behalf of the Petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) impugning the Arbitral Award dated 20.07.2018 in ICC Case No.18801/CYK/TO, whereby learned Arbitral Tribunal (hereinafter referred to as the Tribunal) has awarded a sum of USD 8,492,592.31 in favour of the Respondent including costs of USD 957,889.38 and interest @ 12% per annum.
2. Factual matrix as set out in the petition is that Petitioner is a Public Sector Undertaking owned and controlled by the Central Government and is engaged in business of manufacturing steel. Respondent is a company incorporated under the laws of Russia and engaged in business of setting up Air Separation Unit (ASU) plants largely in Russia.
3. On 25.11.2006, Bhilai Steel Plant (BSP) of the Petitioner issued an Invitation for Bids for Installation of 650 TPD ASU-IV, including Air Turbo Compressor, Nitrogen Turbo Compressor, LIN/LAR tanks along with civil foundations (Package-I) as per Technical Specification No. MEC.VC22.02.06.U.000.8001, R-1 November, 2006 to be executed on divisible turnkey basis. Apart from the price, bidders were required to specify the power consumption, which would factor into award of the tender. Notice Inviting Tender (NIT) specifically provided that offers were invited in accordance with the Technical Specifications (TS), which contained details of the specifications of the equipments as well as the list of preferred vendors for the same. Relevant provisions of the TS accompanying the NIT read as follows:-
03. Special Instructions to Tenderer
03.01 All equipments and components shall be supplied strictly in accordance with this Technical Specification. Deviation, if any shall be clearly spelt out in the offer to the purchaser along with specific advantage.
03.02 In case of any contradiction and/or difficulty in interpretation of the specification and drawings the Tenderer will bring it to the notice of purchaser prior to submission of his offer.
03.03 The Tenderer will study the specification and the drawings and satisfy himself thoroughly regarding workability of the plant and equipment.
03.04 The Tenderer may offer any alternative scheme or modification to the plant and equipment that he may think necessary for better performance of the plant. So far as that does not affect the overall description and specification of the unit. However, prior approval for all such alteration and modification shall have to be obtained from the Purchaser. Price alteration, if any, for such alternate proposal will be indicated separately.

4. In view of the NIT conditions, bidder was to satisfy itself with respect to the required TS and workability thereof at the time of submitting the tender. In the event any deviation from the TS was required, the same had to be specified in the offer itself along with the price proposal. Petitioner being a PSU is bound by Central Vigilance Commission (CVC) Guidelines, which do not permit any relaxation, amendment or modification in contractual terms, having financial implications, after conclusion of the contract, unless absolutely essential because this deprives the bidders of a level playing field at the time of bid submission and in view of this, Petitioner incorporated Clause 03.01 in the TS providing that tenderers were required to propose deviations, if any, with the offer itself.
5. Respondent submitted its bid in compliance with the TS and offered a Pre-Purification Unit (PPU) with 8 hours of adsorption and 7 hours of reactivation. It also offered Synchronous Motors, structured packing with columns and Valves for the Cold Box. On 24-25.02.2007, a meeting was convened between the parties to discuss the techno-commercial aspects of the tender. The Minutes of Meeting (MoM) recorded Respondents confirmation that no deviations were proposed with respect to the TS and its agreement to withdraw all commercial deviations and conditions and to strictly comply with the TS.
6. On 19.04.2007, after scrutiny of the techno-commercial offers, including deviations proposed, Petitioner requested all bidders to submit their revised price bids, which were submitted by the bidders on 28.04.2007. Respondent quoted a low price and power consumption figure and in response to Petitioners letter seeking confirmation, Respondent vide letter dated 01.06.2007 re-confirmed that it was capable of giving power consumption of 12350 KW and the difference in power consumption of nearly 3000 KW, with its nearest competitor would enable the Petitioner to recover its investment in the unit, over the course of 15 years, due to savings in the electricity payments. Respondent was L-1 in the price bid and based on its offer and subsequent negotiations, Contract Agreement was executed between the parties on 31.07.2007 for installation of 700 TPD ASU with the contract price of USD 26,912,000 and INR 17,39,48,320/-.
7. Article 5 of the Contract provided a period of 24 months for completion of work under the contract and Appendix-2 thereto contained the time schedule. As per Clause 1.2, the time schedule indicated in Clause 1.1 of Appendix-2 was binding on the Respondent and therefore, parties clearly understood that time was of the essence of the contract. Appendix-3 incorporated the terms of payment. Article 10 of the contract read with Clause 6 of the General Conditions of Contract (GCC) provided for Arbitration as per the Rules of Arbitration of International Chamber of Commerce, 2012 (hereinafter referred to as the ICC Rules) in New Delhi, where the contractor was a foreign party and the contract value was more than Rs.20 crores. Metallurgical and Engineering Consultants (India) Limited (MECON) was appointed as the technical consultant under the contract, responsible for approving the drawings and data sheets of the equipment.
8. On 02.08.2007, a meeting was held between the parties for implementation of the contract and from this date itself, i.e. within 2 days of signing the contract, Respondent started proposing various deviations from the contract. Respondent wanted itself to be the approved vendor for certain items but had never suggested this deviation at the offer stage and therefore, it was clear that Respondent was not prepared to execute the contract as per its terms, from the very beginning. In the kick-off meeting dated 29.08.2007 held between the parties, it was agreed that Basic Engineering Drawings (BEDs) would be progressively submitted upto 15.12.2007 and approvals thereof will be completed by 29.12.2007. Respondent agreed to submit the list of drawings, name plate and numbering system, which were part of BEDs, by September, 2007. In its letter dated 01.10.2007, Petitioner expressed its concern for slow progress in the project despite passage of 2 months and non-providing of the list of drawings. Eventually, the list of drawings, name plate and numbering system were submitted by the Respondent on 17.10.2007, as recorded in Minutes of Meetings held between 10.10.2007 to 17.10.2007. Thereafter, there was correspondence between the parties with respect to certain deficiencies in the drawings. Revised name plate and numbering system were provided to MECON for approval on 23.11.2007, on which comments were furnished by MECON on 28.11.2007. This was followed by the Respondent submitting the data sheets for compressors on 04.12.2007.
9. Petitioner avers that several letters were sent to the Respondent pointing out slow progress of work including a detailed letter dated 13.12.2007. Petitioner suggested that all drawings be submitted by 15.12.2007 in advance of its meeting on 22.12.2007. However, instead of submitting the drawings in advance, Respondent vide letter dated 14.12.2007 insisted that drawings would be submitted only during its visit from 17.12.2007 to 22.12.2007. Eventually, Respondent submitted the drawings for approval on 17.12.2007, instead of submitting them progressively. Respondent submitted the Process Flow diagram vide letter dated 08.12.2007 and on 18.12.2007, MECON provided the Respondent its comments on the same.
10. As the drawings were submitted by the Respondent at one-go, it was not possible to review them in a short period of 14 days and consequently, MECON furnished its comments on 26.12.2007 and thereafter promptly and progressively from 29.12.2007. It was found that many drawings/data sheets had been submitted without incorporating previous comments, were incomplete and contrary to the contract. Petitioner sent a letter dated 03.01.2008 to the Respondent pointing out lack of progress despite lapse of 5 months as well as other deficiencies, however, Respondent vide letter dated 10.01.2008, instead of submitting revised BEDs, started blaming Petitioner/MECON for delay in approval.
11. Petitioner sent a letter dated 17.01.2008 to the Respondent stating that none of the milestones agreed between the parties in the kick-off meeting had been achieved and the deviations sought as far as possible had been agreed but it was not possible to agree to further deviations. Petitioner also sought revised drawings, as a number of drawings submitted did not pertain to the project in question. 18 revised BEDs were submitted by the Respondent on 31.01.2008 but the same were again not to the satisfaction of the Petitioner.
12. Correspondence continued between the parties on various issues from time to time with each one blaming the other for non-performance of the contractual obligations. Realising that as per Clause 1.1 of the Time Schedule in Appendix-2 of the Contract, supply and delivery of different items was to commence from month 7-9 (February to April, 2008) and was to be completed by month 17/18 and as per the bar chart, ordering of technical equipments was to commence from month 02 and completed by month 13 and supply of technological equipments was to commence from month 07 and completed by month 17 and also that Long Delivery Items (LDIs) such as compressors, motors, etc. would take 13-14 months to manufacture and supply after placement of Purchase Orders and that work was not progressing as per schedule, on 29.08.2007 a kick-off meeting was again held between the parties and Petitioner advised the Respondent to expedite submission of specifications of the compressors and other LDIs to facilitate timely ordering and supply of equipment. Respondent agreed to provide a detailed list of equipments with ordering schedule by November, 2007.
13. Petitioner states and avers that as late as on 19.09.2007 and 26.09.2007, Respondent was still procuring proposals from Cameron and Siemens for a Centrifugal Compressor Package and Unit Control Panel, respectively. This indicated that Respondent was in no position to place orders for LDIs to comply with the time schedule.
14. In the meetings held between 10.10.2007 to 17.10.2007, submission of list of LDIs along with the ordering schedule had to be postponed from 30.09.2007 to 16.11.2007 i.e. by 1½ months, due to delays by the Respondent. In its letter dated 26.12.2007, Respondent claimed that design and ordering of main equipment could not be done without approval of BEDs and insisted that the deviations proposed be allowed and in a subsequent letter dated 16.01.2008, insisted that it could not order any equipment unless BEDs and alternate vendors were approved. Petitioner did not agree to this offer and on 25.01.2008, wrote to the Respondent inter alia stating that Respondent had previously never stated that LDIs could not be ordered without approval of BEDs and TS of the LDIs being part of the contract, they could have been ordered immediately after signing of the contract. It now became apparent to the Petitioner that Respondent was unable to ensure the supply of the equipment within the contractual timelines.

15. Respondent allegedly placed Purchase Orders dated 06.02.2008, 07.02.2008 and 18.02.2008 on Fives Cryogenics for Heat Exchanger, Cameron for Centrifugal Compressor Package and Siemens for the Main Air Compressor (MAC). However, copies of unpriced Purchase Orders were not provided to the Petitioner and Petitioner disputes the placing of these orders. Thereafter, contrary to the terms of the contract, Respondent kept on proposing major deviations for PPUs, etc.
16. In the TS accompanying the NIT, no adsorption time/cycle for the PPU was stipulated, however, in its technical offer, Respondent offered PPU with 8 hours adsorption time and 7 hours re-activation/regeneration time. Further, in the MoM dated 24/25.02.2007, Respondent confirmed this position and Clause 06.02.03 was amended to read Adsorber: Radial bed type with 8 hrs duty cycle with design margin of 51-90 min in case of delayed changeover. In its letter dated 18.12.2007, MECON re-affirmed the cycle duration. In response dated 19.12.2007, the Respondent instead of complying with the TS proposed a major deviation of a PPU with 4 hours cycle of adsorption, claiming that it was a standard solution and sought approval of the Petitioner. In the meeting held on 20-21.12.2007, the deviation proposed was rejected. Despite this, Respondent again sent a letter dated 25.12.2007 offering PPU with a deviation, which was again rejected and communicated to the Respondent vide Fax message dated 31.12.2007.
17. The deviation in the PPU was discussed subsequently in various communications exchanged between the parties as well as the meetings held from time to time but no fruitful result was achieved and Respondent clearly breached Clause 01.01 of Appendix-2 and Clause 06.02.03 of TS. Simultaneously, issues arose with respect to the synchronous motors for the compressors. Respondent in its offer as well as MoM dated 24-25.02.2007 inter alia agreed that motors for MAC, Booster Air Compressor (BAC) and Nitrogen Turbo Compressor (NTC) shall be synchronous. The understanding was incorporated in the Contract TS in Clause 06.02.01 for MAC, Clause 06.02.03 for BAC, Clause 06.02.09 for NTC. Further, Clause 06.04.02 provided that motors for MAC, BAC and NTC will be synchronous. Vide letter dated 13.12.2007, MECON categorically stated that induction motors were unacceptable and the compressor motors were required to be synchronous as per the contractual terms and this position was reaffirmed by letter dated 18.12.2007. Over 4½ months after signing the contract, on 19.12.2007, Respondent sent a letter claiming that compressor suppliers including Atlas Copco had no standard solutions for synchronous motors less than 5 MW and that Privod, a Russian manufacturer of synchronous motors was ready to work out a solution but could not guarantee the workability of the system, as it had no experience in such projects. It was thus proposed that Petitioner should either approve asynchronous motors for compressors or approve Privod as a vendor. This proposal was a delay tactic and breach of Clause 03.03 which required the Respondent to satisfy itself of the workability of the specifications at the start.
18. In the meeting dated 20-21.12.2007, Respondent agreed to ensure the compatibility of Privod synchronous motors with Cameron make BACs and NTCs and assured that technical specifications of the motors would be in accordance with the contract. Petitioner agreed to approve Privod as a vendor. On 26.12.2007, Respondent again sent a letter insisting that asynchronous motors should be used and vide letters dated 27.12.2007 and 31.12.2007, MECON and the Petitioner accepted Privod as a vendor for synchronous motors, provided motors were compatible with the compressors and technical specifications. In response, vide letter dated 10.01.2008, Respondent claimed that compatibility would be achieved during execution of the project but confirmation of compatibility was never received from the Respondent.
19. Later, on the insistence of the Respondent, Petitioner accepted Respondent as a vendor for cold valves as well as Russian make warm valves and FEMA (Italy) make safety valves in the meetings held on 25.02.2008 to 07.03.2008. Various issues arose with respect to the columns, PERT Network, etc. constraining the Petitioner to send letters to the Respondent pointing out delays in performance of the contract and breaches etc. On 09.04.2008, Petitioner sent a detailed letter pointing out various problems faced in the execution of the contract, due to which it had lost confidence that Respondent would be able to meet the contractual timelines. Petitioner asked the Respondent to send a time schedule for implementation within 14 days, failing which risk purchase action as per Clause 37 of GCC would be taken. This was followed by a reminder letter dated 12.04.2008. In response, vide letter dated 14.04.2008, Respondent blamed the Petitioner for delay in resolving the matters, in particular, for not approving the BEDs on time, without which Respondent could not move ahead. Given the lack of progress in 10 months, Petitioner sent a final risk purchase notice dated 07.06.2008 and finding the response dated 19.06.2008 from the Respondent, unsatisfactory, Petitioner terminated the contract under Clause 44.2 of GCC for Respondents default vide letter dated 01.07.2008, spelling out 9 reasons to do so.
20. Respondent replied to the termination notice vide letter dated 09.07.2008 pointing out that contract could not be terminated under Clause 44.2. On 12.07.2008, Petitioner invoked the Performance Bank Guarantee (PBG’). On 15.07.2008, Petitioner paid LC charges of Rs.1,61,916/- for the period 27.05.2008 to 27.08.2008 and on 23.07.2008 wrote to the Bank that contract had been terminated and the LC be closed and directed the Bank not to release any payment against the LC. On 25.02.2009, Petitioner awarded the contract to Air Liquide for completion of the project. By a letter dated 22.10.2010, Respondent sought settlement of disputes and responding thereto on 19.04.2011, Petitioner informed the Respondent that it would be claiming a sum of Rs.67.68 crores from the Respondent on account of the additional burden incurred by it due to risk purchase contract. On 04.07.2012, Respondent filed a Request for Arbitration with the International Chamber of Commerce (ICC) Secretariat and the request was received by the Petitioner on 08.08.2012. Arbitration was kept in abeyance from 12.09.2012 with the consent of the parties. On 29.08.2013, Petitioner sent a notice of dispute to the Respondent claiming Rs.67.68 crores on account of: (a) differential price of contract; (b) differential cost of power consumption; and (c) LC charges for 8 quarters, reduced by the amount of PBG encashed by the Petitioner and sought payment within 30 days, failing which it would invoke Clause 6 of GCC.
21. Respondent filed amended Statement of Claim on 09.12.2016 seeking: (a) USD 1,543,269 for wrongful encashment of PBG; (b) USD 1,489,250 for BEDs and DEDs; (c) USD 2,190,756 towards advance payments made to Vendors; (d) USD 151,016 towards expenses incurred in execution of the project; (e) USD 11,241,713 towards loss of profit and goodwill; (f) Interest @ 18% p.a.; and (g) Costs.
22. On 07.01.2007, Petitioner filed amended Statement of Defence and counter-claim seeking: (a) Rs. 6,24,24,000/- towards the differential contract price; (b) Rs. 67,88,72,880/- towards differential cost of power consumption; (c) Rs. 91,08,62,684/- towards differential cost of Oxygen procured from the market; (d) Rs. 12,32,607/- towards LC charges for 8 quarters; (e) interest @ 18% p.a.; and (f) Costs.
23. The learned Tribunal, by the impugned award dated 20.07.2018 dismissed the counter-claim of the Petitioner and allowed the claims of the Respondent as follows:
(a) USD 1,551,456 for wrongful encashment of PBGs;
(b) USD 2,190,756 towards advance payments made by the Respondent to its vendors;
(c) USD 151,016 towards expenses incurred towards performance of the Contract;
(d) USD 919,209.93 towards loss of profit;
(e) USD 2,722,265 for work done in preparation of BEDs and DEDs;
(f) USD 957,889.38 towards costs; and
(g) Interest @ 12% p.a. for varying periods on different amounts.

24. At this stage, it is pertinent to mention that Respondent has raised a preliminary objection that the present petition under Section 34 of the 1996 Act is time barred and deserves to be dismissed on this ground alone. Arguments canvassed by the Senior counsels on the preliminary objection can be captured as follows:-
Contentions on behalf of the Respondent:
(A) Section 34(3) of the 1996 Act provides a period of 03 months for filing an application for setting aside an arbitral award. Proviso to Section 34(3) of the 1996 Act provides that if the Court is satisfied that applicant was prevented by sufficient cause from making the application within 03 months, it may entertain the application within a further period of 30 days, but not thereafter. In the present case, petition was filed after the prescribed period of 3 months and 30 days and cannot be entertained. Time for filing the petition commenced on 27.07.2018, when an e-mail dated 27.07.2018, sent by ICC Secretariat, was received by all the four persons designated by SAIL to receive such communication as per Articles 3, 23(1)(b) and 34 of the ICC Rules and whose names are also recorded in the Terms of Reference as per Article 23(1)(a). These persons were SAILs top-most legal officers including the present Chief General Manager (Legal) Mr. S.B. Mathur, who is also one of the authorised signatories in the present petition. By this e-mail, Petitioner was informed that the draft award was approved by International Court of Arbitration on 28.06.2018 and ink signed copy of the Award was attached to the e-mail. Complete petition, valid in all respects, was filed on 07.12.2018 and was thus beyond a period of 03 months and 30 days calculated from 27.07.2018, the date of receipt of the Award by the Petitioner. In these circumstances, this Court has no power to condone the delay even under Proviso to Section 34(3) of the 1996 Act, which stipulates that if sufficient cause is made out for not filing the objections within 3 months, delay can be condoned upto 30 days, but not thereafter.
(B) Petitioner did not disclose that the Award was received by e-mail on 27.07.2018 in the petition. It was falsely claimed that the Award was received on 06.08.2018 and importantly, no proof in support of this plea also was filed. Objection with regard to the petition being time barred was promptly raised by the Respondent as a part of its preliminary objections in the reply dated 18.03.2019 and no rejoinder was filed by the Petitioner, controverting the averments in the reply. In Ministry of Youth Affairs and Sports, Dept. of Ports, Govt. of India v. Ernst and Young Pvt. Ltd. (now known as Ernst and Young LLP) and Another, 2023 SCC OnLine Del 5182, this Court held that when service by e-mail is an accepted mode of service, then sending scanned signed copy of the Award of the Arbitral Tribunal to the parties would be a valid delivery as envisaged under Section 31(5) of the 1996 Act.
(C) Section 3 of the 1996 Act contemplates that parties can agree to the manner of receipt of written communications and in consonance with this provision, Petitioner had agreed to be notified of the Arbitral Award by e-mail. This is evident from Clause 6 of GCC, which reads as follows:-
6. Settlement of Disputes: Conciliation & Arbitration
In case of disputes, the matter shall be referred for conciliation before arbitration.
Arbitration with foreign contractor or in consortium contracts (including foreign contractor) where the contract value is more than Rs. 20 crores, shall be governed by the Rules of Arbitration of International Chamber of Commerce (ICC), Paris. The venue of the arbitral proceedings shall be New Delhi. During the pendency of the conciliation or arbitration proceedings, the Employer and the Contractor shall continue to perform their contractual obligations.

(D) ICC Rules contemplate notification of the Award by e-mail, which is substantiated by a bare reading of Articles 3 and 34 of the said Rules, which read as follows:-
Article 3: Written Notifications or Communications; Time Limits

2) All notifications or communications from the Secretariat and the arbitral tribunal shall be made to the last address of the party or its representative for whom the same are intended, as notified either by the party in question or by the other party. Such notification or communication may be made by delivery against receipt, registered post, courier, email, or any other means of telecommunication that provides a record of the sending thereof.
3) A notification or communication shall be deemed to have been made on the day it was received by the party itself or by Its representative or would have been received if made in accordance with Article 3(2).
Article 34: Notification, Deposit and Enforceability of the Award
1) Once an award has been made, the Secretariat shall notify to the parties the text signed by the arbitral tribunal, provided always that the costs of the arbitration have been fully paid to the ICC by the parties or by one of them.

3)By virtue of the notification made in accordance with Article 34(1), the parties waive any other form of notification or deposit on the part of the arbitral tribunal.

(E) The 1996 Act does not stipulate any specified method or mode of delivery or receipt of an Arbitral Award and does not mandate or require receipt of an ink-signed original award in physical form from the Arbitrators. These observations come from the judgment of this Court in Delhi Urban Shelter Improvement Board v. Lakhvinder Singh, 2017 SCC OnLine Del 9810 and of the Calcutta High Court in National Agricultural Cooperative Marketing Federation of Indian Ltd. v. M/s. R. Piyarelall Import & Export Ltd., 2015 SCC OnLine Cal 7198 and therefore, date of receipt of the copy of the Award by e-mail on 27.07.2018 will be the date of commencement of limitation period of 3 months under Section 34(3) of the 1996 Act. Petitioners contention that by virtue of paragraph 141 of Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under the ICC Rules of Arbitration (hereinafter referred to as the ICC Note), courtesy copy of the Award received via e-mail will not trigger time limits under Section 34(3) of 1996 Act, is a misreading of the statutory provisions. Time limits under ICC Rules do not apply to time limits postulated under the 1996 Act and in any case the ICC Rules only govern the conduct of arbitration till the passing of the Award. [Ref. Imax Corporation v. E-City Entertainment (India) Private Limited, (2017) 5 SCC 331]. Paragraph 141 of the ICC Note reads as under:-
141. A courtesy copy of the PDF signed original of the Awards, addenda and decisions will be sent to the parties by email. The sending of a courtesy copy by email does not trigger any of the time limits under the ICC Rules of Arbitration.

(F) The Award was received by the Petitioner on 27.07.2018 and the 3 months period prescribed under Section 34(3) of the 1996 Act expired on 27.10.2018 and further period of 30 days expired on 26.11.2018. Petition was filed on 12.11.2018 for the first time after 3 months and 16 days starting from 27.07.2018 and without any application for condonation of delay. On this ground alone, the petition deserves to be dismissed. Assuming that the date of receipt of the Award is taken as 06.08.2018 and the filing on 12.11.2018 is within 3 months, the filing being non-est would not stop limitation in the present case. The nature of defects pointed out by the Registry while marking objections, reflect that the defects were fatal inasmuch as petition was filed without the copy of the Award and the Power of Attorney authorizing Petitioners signatory to file the petition; blanks were visible in the Statement of Truth; verification was done with respect to paragraphs 1-214 and 216 of the petition, which was different from the verification in the petition ultimately filed on 07.12.2018 wherein contents of paragraphs 1-211 and 213-214 were verified; 300 pages were filed in total without bookmarking and pagination while the index reflected 1901 pages and the petition filed on 07.12.2018 had over 2000 pages; Statement of Truth was not filed as per the Commercial Courts Act, 2015; caveat report was not taken; Court fees was short/missing; and affidavits were incomplete. It is thus obvious that the petition was filed on 12.11.2018 only to stop limitation and this act is an abuse of process of the law. The defect of non-filing of the Award goes to the root of the matter and this becomes important since Petitioner had admittedly received the Award before 12.11.2018 but has offered no explanation for not filing the same at the time of initial filing. Petitioner admits that multiple conferences were held post the filing of the petition on 12.11.2018 amongst the officers of SAIL and the counsels to understand the documents, which reflects that the petition filed on 12.11.2018 was not intended to be final. Since the petition, complete in all respects, was filed only on 07.12.2018, which was beyond 03 months and 30 days from date of receipt of the Award, delay cannot be condoned. Without prejudice, even if date of 06.12.2018 is taken as the date when complete petition was validly filed, Petitioner has failed to make out a sufficient cause that prevented it from filing the petition within 3 months. Reliance was placed on the following judgments in support of the plea of non-est filing:-
(a) Delhi Development Authority v. Durga Construction Co., ILR (2014) 1 Del 153
Defects: Award to be re-typed on legal size paper.
Observations:
The Court has jurisdiction to condone the delay in refiling of the objections beyond the statutory period prescribed, however, this is not to be exercised liberally, in view of the object of the Act to ensure that proceedings are concluded expeditiously. The delay in refiling cannot be permitted to frustrate the object of the Act and defeat the purpose of specifying an inelastic time period [para 25].
To condone the delay, the party must satisfy the court that the matter was pursued diligently, and delay is beyond his control and unavoidable [para 25].

(b) Sravanthi Infratech Private Limited v. Greens Power Equipment (China) Co. Ltd., 2016 SCC OnLine Del 5645
Defects: No document filed, no vakalatnama, no resolution/authority, no application for condonation of delay, no affidavit, no signature of party on the petition.
Observations:
When the defects were cured and the petition was re-filed, the date of the supporting affidavit and the signing of the petition were ante-dated. This is prima facie an attempt to falsify the record [para 18].
The court is not expected to mechanically condone the delay in filing the petition in terms of the proviso to Section 34(3) of the Act. It can only be upon the petitioner satisfying that the delay was for bona fide reasons can the court proceed to condone the delay [para 19].
By filing a petition with just 66 pages to start with (which later on – refiling grew to 859 pages) with no signature of the petitioner, without affidavit, without vakalatnama, the petitioner sought to defeat the whole object of section 34(3) of the Act. This Court is statutorily mandated to take a strict view of the outer limit within which petitions under section 34 of the Act have to be filed [para 20].
(c) SKS Power Generation (Chhattisgarh) Ltd. v. ISC Projects Private Limited, 2019 SCC OnLine Del 8006
Defects: The petition contained only 29 pages, without any affidavit, vakalatnama and impugned award.
Observations:
In view of the above defects, the filing was merely a bunch of papers to stop the period of limitation from running [para 11].
While courts have the jurisdiction to condone the delay in refiling a petition, the approach of the court cannot be liberal and the conduct of the applicant will have to be tested on the anvil of whether the applicant acted with due diligence and dispatch [para 13].
Distinguishes Uday Shankar Triyar vs. Ram Kalwar & Anr, (2006) 1 SCC 75. The non-filing was clearly deliberate and mischievous as it was intended only to stop the period of limitation from running and thereafter the petitioner took no steps to have the petition re-filed expeditiously [para 16].
(d) Director Cum Secretary, Department of Social Welfare v. Sarvesh Security Services Pvt. Ltd., 2019 SCC OnLine Del 11593
Defects: Petition did not bear the signatures, it was not accompanied with an affidavit, the statement of truth was not filed, and the advocate did not have a vakalatnama on record.

Observations:
The above defects indicate that only a sheaf of papers bunched together were filed and the original petition was a sheer paper formality undertaken by to save the period of limitation. [paras 13 and 14].
(e) Union of India v. Bharat Biotech International Ltd., 2020 SCC OnLine Del 483, (upheld by the Division Bench in appeal being FAO(OS)(COMM) 82/2020 filed by Union of India, decided on 19.12.2023)
Defects: No copy of award, original application only contained 83 pages, no signatures on each page, documents not annexed, no court fees, blanks in the statement of truth, re-filed with drastic alterations running into 430 pages, then again re-filed with 441 pages.
Observations:
At the time of re-filing, not only were documents spanning over 350 pages added to the petition, but even the framework of the petition was changed, yet the last page of the re-filed petition continued to reflect the date of filing as 31.05.2019; which is patently untrue, in the light of the petitioner’s admission that it had made changes in the body of the petition at the time of re-filing. This is an entirely unacceptable practice [para 18].
A petition seeking to assail an award without even annexing a copy thereof cannot be claimed to be a valid filing and that too without even moving an application seeking exemption from filing a copy of the impugned award [para 18].
Failure to file the impugned award along with the petition at the time cannot be underplayed as a trivial defect but is a defect of such gravity that it would render the original filing as a dummy filing [para 19].
The original petition, only running into 83 pages was a careless and deliberate attempt on the petitioner’s part to somehow stop the clock on limitation amounting to a clever manoeuvre to buy time. In fact, even after the original petition was received by the petitioner’s counsel with defects being pointed by the registry, the petitioner did not take any steps to file a copy of the impugned award while re-filing the petition within the extended period of limitation of 3 months and 30 days [para 19].
(f) Oil and Natural Gas Corporation Ltd. v. Planetcast Technologies Ltd., 2020 SCC OnLine Del 2083 (Upheld by the Division Bench in Oil and Natural Gas Corporation Limited v. Planetcast Technologies Ltd., 2023 SCC OnLine Del 8490)
Defects: Non-filing of award and statement of truth.
Observations:
The holistic picture that emerges is that to be termed as a proper petition, it must be accompanied at least by a statement of truth, vakalatnama and the Award impugned therein, in the absence of all these vital documents, the filing constitutes a bunch of papers [para 27].
Permitting a party, aggrieved by an award, to file inadequate petitions to stop limitation and then argue that the defects are curable will also put the intent of the Legislature, to provide a strict and inelastic limitation period, to a naught [para 34].
(g) Oriental Insurance Co. Ltd. v. Air India Ltd., 2021 SCC OnLine Del 5139
Defects: Non-filing of award, vakalatnama, signed & attested statement of truth and affidavits in support of the application.
Observations:
If the party concerned exhibits careless attitude even after the first filing and causes delay which is disproportionately large to the period of limitation prescribed under Section 34 of the Act, the delay in filing and refiling may be fatal. However, where they party – after the initial delay in filing (which is within the 30 days period of the expiry of the 3 month period of limitation), exhibits a sense of urgency in refiling(s), then a more favourable view should be taken by the Court to condone the delay [paras 12 and 14].
A filing can be considered as non-est, if it is filed without any signatures of either the party or its authorised and appointed counsel [para 11].
(h) Ircon International Ltd. v. Reacon Engineers (India) Pvt. Ltd., 2022 SCC OnLine Del 1860
Defects: Non-filing of award, vakalatnama, no statement of truth, initial filing was only 73 pages, while the final filing spanned over 1325 pages.
Observations:
An increase in the number of pages from 73 to 1325 indicates that the entire framework of the petition was changed at the time of re-filing [para 14].
The absence of the Award and vakalatnama indicates that the filing was not valid and is nonest [para 15].
(i) Oil and Natural Gas Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) & M/s Megha Engineering & Infrastructure Limited (MEIL), 2023 SCC OnLine Del 63
Defects: Affidavits were not attested.
Observations:
It is necessary that the application be accompanied by a copy of the Award as without a copy of the Award, which is challenged, it would be impossible to appreciate the grounds to set aside the Award [paras 32 and 41].
In given cases there may be a multitude of defects. Each of the defects considered separately may be insufficient to render the filing as non-est. However, if these defects are considered cumulatively, it may lead to the conclusion that the filing is non-est [para 41].
In order to consider the question whether a filing is non-est, the court must address the question whether the application, as filed, is intelligible, its filing has been authorised; it is accompanied by an award; and the contents set out the material particulars including the names of the parties and the grounds for impugning the Award [para 41].
(j) Brahmaputra Cracker and Polymer Ltd. v. Rajshekhar Construction Pvt. Ltd., 2023 SCC OnLine Del 516
Defects: Non-filing of impugned award, statement of truth, and vakalatnama
Observations:
Non-filing of award alone amounts to a fundamental defect which renders the filing to be non-est [para 15].
The filing of a petition or an attempted filing of a petition under section 34 of the Act unaccompanied with a statement of truth or the Award should not be lightly countenanced especially where the same may be merely presented in order to stall the limitation period prescribed in section 34 of the Act from commencing [para 16].
(k) Ambrosia Corner House Private Limited v. Hangro S Foods, 2023 SCC OnLine Del 517
Defects: Not filing the documents in a separate folder as prescribed in the Delhi High Court (Original Side) Rules, 2018 [para 19].
Observations:
The court must assess the facts of each case while determining the issue of the filing being considered as non-est [para 18].
The conduct of the petitioner clearly evidences its endeavour to file a proper petition under Section 34 of the Act on the date of re-opening of the court for the purposes of limitation in terms of Section 4 of the Limitation Act, 1963 [para 20].
(l) National Highways Authority of India v. Patel-KNR (JV), OMP (COMM) 516/2018, decided on 23.02.2023
Defects: Non-filing of the Award, blanks in affidavit and statement of truth, and non-attested affidavit.
Observations:
A wholistic view of the filing as done is to be taken to determine whether in spite of the petition carrying the signatures of the party or its counsel it can still be termed as a non-est filing [paras 16 18].

(m) Steel Strips Wheels Limited v. Tata Aig General Insurance Company Limited, FAO(OS) (COMM) 178/2020, decided on 06.02.2023.
Defects: Blanks in Statement of Truth, no verification, vakalatnama not properly executed (without welfare stamp), no enrolment numbers, dates on memo of parties, urgent application, notice motion etc. all different from each other.
Observations:
Vakalatnama did not contain the alleged blanks and the requisite information was filled; the only defect that remained was the blank in para 6 of the statement of truth; therefore, the filing cannot be termed as non-est. However, delay was caused due to carelessness of the petitioner, therefore, costs imposed and delay in re-filing condoned [paras 8.1-11].
(n) Viceroy Engineering v. Smiths Detection Veecon Systems Private Limited, OMP (COMM) 302 of 2019, decided on 04.12.2023
Defects:
Wrong format of the petition was filed at first. Later, 174 pages were filed without bookmarking and incomplete pagination.
Affidavit and statement of truth were not attested.
Subsequently, there was an increase in number of pages, which the petitioner explained was on account of filing of true-typed copies of documents such as TDS certificates.

(G) It was emphasized that non-filing of the Award is not a curable defect and on this ground alone, filing has to be treated as non-est on 12.11.2018. In this context, reliance was placed on the judgment of the Supreme Court in Vidya Drolia and Others v. Durga Trading Corporation, (2021) 2 SCC 1, where the Supreme Court held that a party intending to object to an Award, is required to file an application under Section 34(1) indicating the objections along with the copy of an Award and such complete petition indicating the grounds of challenge is required to be filed within the time prescribed under Section 34(3) of the 1996 Act. Reference was also made to the judgments of two Division Benches of this Court in Union of India v. Panacea Biotec Limited, 2023 SCC OnLine Del 8491 and Planetcast Technologies Ltd. (supra).
(H) Petitioners contention that the judgments relied on by the Respondent are per incuriam as the earlier judgment by the Division Bench of this Court in Oriental Insurance (supra), was not considered, is misconceived. In the said judgment, this Court found that filing was delayed as the minority Award was passed later and therefore, Petitioner therein was under an impression that limitation period had not commenced but when advised correctly, he approached the Court and filed the petition diligently, as soon as possible. Moreover, the filing was not beyond the statutory period of 03 months 30 days. Petitioner is also wrong in contending that the observations of the Supreme Court in Vidya Drolia (supra), would not apply to the present case as they were rendered in a different factual scenario and/or the judgment was in the context of non-arbitrable dispute. It is settled law that even the obiter dicta of the Supreme Court is binding on lower Courts. For this proposition, judgment of this Court in this context in Larsen & Toubro Limited v. Experion Developers Pvt. Ltd. and Others, 2019 SCC OnLine Del 11549, was cited. Judgment in Ambrosia Corner (supra) cannot aid the Petitioner inasmuch as in the said case, the Court found as a matter of fact that Petitioner had filed the requisite documents including copy of the impugned Award but inadvertently in the same folder, which was against the Delhi High Court (Original Side) Rules, 2018, which require documents to be filed in a separate folder.
Contentions on behalf of the Petitioner in response to Preliminary Objection:

(A) It is wrong to contend that limitation of 3 months prescribed under Section 34(3) of the 1996 Act for filing objections to an Arbitral Award commenced on 27.07.2018 and is consequently, time barred. On 27.07.2018, a courtesy copy of the Award dated 20.07.2018 was sent by the ICC. The e-mail stated that receipt of the courtesy copy would not trigger the time limits under the ICC Rules. Notification of the Award was under ICC Notes 140 and 141 read with Article 34 of the ICC Rules. Note 141 clearly states that A courtesy copy of the PDF signed original of the Awards, Addenda and decisions will be sent to the parties by e-mail. The sending of a courtesy copy by e-mail does not trigger any of the time limits under the ICC Rules of Arbitration. If the contention of the Respondent is accepted, it would render Notes 140/141 otiose. Reliance by Respondent on Articles 3 and 23 of the ICC Rules, to contend that Arbitral Award was received by the Petitioner on the date on which the e-mail was sent by the Tribunal with the courtesy copy, is equally misplaced. These Articles deal with pleadings and ordinary communications and not with the delivery of the Award and notification of the Award is covered under Notes 140 and 141. Article 34(1) is also incorrectly relied upon as the same prescribes notification of the text of the Award and does not deal with the mode of delivery of the Arbitral Award. It provides that once an award has been made, the Secretariat shall notify to the parties the text signed by the Arbitral Tribunal, provided always that the costs of arbitration have been fully paid to the ICC by the parties or one of them. The language demonstrates that parties are only made aware of the text and not the final award so as to propose corrections, modifications and alterations to the text. Section 3 of the 1996 Act does not aid the Respondent as the provisions are subject to the agreement between the parties and secondly, the it deals with ordinary communications, while delivery of Award is governed by Section 31(5) of the 1996 Act, which stipulates that after the Award is made, a signed copy shall be delivered to each party. Conjoint reading of Sections 3 and 31(5) of the 1996 Act shows that the agreement between the parties with respect to what would constitute delivery of the Award would have an overriding effect and therefore, once ICC Rules envisage and provide that courtesy copy will not trigger time limits, it means and connotes that delivery of the Award under Section 31(5) would have to be understood as delivery of original signed copy and not courtesy copy. Section 31(5) itself cannot be interpretated to mean that any kind of copy of the Award served on the party to the Award will be treated as service. In State of Maharashtra and Others v. Ark Builders Private Limited, (2011) 4 SCC 616, the Supreme Court held that the petition under Section 34 of the 1996 Act was within limitation even though photocopy of the Award was available with the Petitioner a year earlier.
(B) The argument of the Respondent, if accepted, would lead to a precarious position in law. From a reading of ICC Rules, it is evident that a courtesy copy would not trigger the timeline to apply to the Arbitral Tribunal for correction of errors etc. in the Award under the ICC Rules or under Section 33 of the 1996 Act and this position is uncontroverted. In this scenario, it is inconceivable that receipt of courtesy copy would trigger commencement of limitation for filing objections against the Award under Section 34 of the 1996 Act while the party will wait to receive the original to apply for correction of the Award, if any, in a given case. As per the scheme of the 1996 Act, timelines under Sections 33 and 34 commence simultaneously only after receipt of original signed copy of the Award under Section 31(5) as held by the Division Bench of this Court in DUSIB (supra) and relevant observations are ..Based on deliberations on this premise, the Commission did not adopt the proposal. The same approach was adopted in Section 31(5) of the Act where the arbitral award becomes binding when the party receives a signed copy of the Award and the same receipt becomes relevant for purposes of Section 33(1), (4) and 34(3)
(C) Respondent is not right in its contention that once an Award was signed, Rules of the Institution conducting the arbitration, ICC Rules in the present case, shall cease to apply and provisions of the 1996 Act will take over. The 1996 Act itself contemplates that after the Award has been made, signed copy shall be delivered to each party under Section 31(5). Section 32 deals with termination of proceedings and comes into play when the entire procedure under Section 31 is complete. In Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, the Supreme Court held that delivery of an Arbitral Award under Section 31(5) is not a mere formality. Even Section 32(1) is subject to Section 32(3) and therefore, mere signing of the Award does not terminate the arbitral proceedings. In the present case, parties had categorically agreed that arbitration shall be governed by ICC Rules and the same would continue to govern all related aspects, including delivery of award, until termination of arbitration under Section 32, which stage would come later. There is no inconsistency between ICC Rules and provisions of the 1996 Act on the question involved in this case i.e whether courtesy copy of the Award triggered commencement of limitation period under Section 34(3) of the 1996 Act. Hence the limitation period to file the present petition did not commence on 27.07.2018.
(D) Party autonomy is the overarching principle of arbitration and is crystalized in Section 2(6) of the 1996 Act. The provision allows parties to determine the relevant law and procedure that will govern the arbitration. In the present case, parties had agreed that arbitration shall be governed by ICC Rules till proceedings are terminated under Section 32. In Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, 2022 SCC OnLine SC 1122, the Supreme Court restated that party autonomy is a cardinal principle underlying arbitration.
(E) Even otherwise, service of award by e-mail would not amount to compliance with Section 31(5) of the 1996 Act. If the Legislature envisaged that sending a scanned/photocopy/e-mail copy, then the expression signed copy would not have been used and merely the word copy would have found place in Section 31(5). Illustratively, scanned copy of a signed cheque is not a signed cheque. Unamended Section 7(4) provided for execution of an arbitration agreement in the following manner:-
7(4). An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement.

The Legislature amended Section 7(4) in the year 2015, which now reads as under:-
7(4). An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication (including communication through electronic means) which provide a record of the agreement.

As per the amendment, communication through electronic means would now constitute an arbitration agreement and if the Legislature intended that delivery of the Award could be made through electronic means, Section 31(5) would have been amended, which was not done. Law so far does not recognize communication by electronic means as an accepted mode of delivery of signed copy of the Award. [Ref. G. Narayanaswami v. G. Pannerselvam and Others, (1972) 3 SCC 717]. It is not open to this Court to accept delivery of the Award by electronic mode as a legally acceptable mode as that would amount to amending Section 31(5), which the Legislature chose not to.
(F) Reliance by the Respondent on the judgment in Imax Corporation (supra) is misplaced, as in the said case, the Supreme Court held that since the seat of arbitration was London, objections to the Award could not be filed in India. Judgment is inapplicable to the proposition that ICC Rules will cease to apply after signing of the Award. Judgment in Hindustan Petroleum Corporation Ltd. v. Delhi Transport Corporation, 2021 SCC OnLine Del 3189, is of no assistance to the Respondent because it is not under the ICC Rules; does not lay down any legal principle that sending an award by e-mail is sufficient compliance of Section 31(5); and it was a case of gross laches where Section 34 petition was filed six months after the signed copy was couriered and 9 months after the e-mail copy was sent. Judgment in National Agricultural Cooperative Marketing Federation of Indian Ltd. (supra), is against the Respondent. The said case was dealing with arbitration under ICA Rules, 1968 which provided that after the Award was made, Registrar shall furnish a true copy of the Award to the parties by registered post. Accordingly, ICA sent a certified copy of the Award under a covering letter signed by Registrar, ICA. Petitioner had acted on this copy and filed petition under Section 34 almost after 7 months from the date of receipt. Similarly, the case under DUSIB (supra) was not under the ICC Rules. The hard copy of the Award was sent by the Arbitrator, which bore his stamp on every page with the Arbitrators name and covering letter was signed in original by the Arbitrator. Having received this award in March, 2016, DUSIB falsely pleaded ignorance of the Award and filed a petition 5 months later on 23.08.2016.
(G) Original copy of the Award was first received by counsel for the Petitioner on 02.08.2018 but this cannot be treated as delivery of the Award under Section 31(5) of the 1996 Act so as to trigger commencement of limitation period prescribed under Section 34(3) of the 1996 Act. In Benarsi Krishna Committee and Others v. Karmyogi Shelters Private Limited, (2012) 9 SCC 496, the Supreme Court observed that receipt of an Award by the counsel is not proper compliance and signed Award must be served on the party to the arbitration agreement. Party would mean a party which executed the contract and was a party to the arbitration agreement. In Benarsi Krishna (supra)¸the Supreme Court held as follows:-
15. The expression party, as defined in Section 2(1)(h) of the 1996 Act, clearly indicates a person who is a party to an arbitration agreement. The said definition is not qualified in any way so as to include the agent of the party to such agreement. Any reference, therefore, made in Section 31(5) and Section 34(2) of the 1996 Act can only mean the party himself and not his or her agent, or advocate empowered to act on the basis of a vakalatnama. In such circumstances, proper compliance with Section 31(5) would mean delivery of a signed copy of the arbitral award on the party himself and not on his advocate, which gives the party concerned the right to proceed under Section 34(3) of the aforesaid Act.

In Tecco Trichy (supra), the Supreme Court, in the context of one of the parties i.e. Southern Railways, held that the term party as defined in Section 2(h) of the 1996 Act would mean a party to an arbitration agreement and service of award on General Manager would not constitute starting point of limitation as it was the Chief Engineer who had executed the contract and was a party to the agreement. Present matter involves SAIL, which has steel plants throughout the country, one of which is BSP. BSP is the employer and party to the contract dated 31.07.2007 and the arbitration clause/agreement contained in the contract as well as a signatory thereto. Plant is headed by the CEO, who had the power to decide whether the Award was to be challenged or accepted. The agreement was signed by the Executive Director (Projects) of BSP, who was under the CEO. As per Section 2(h), BSP through its Executive Director and CEO was a party to the arbitration agreement and therefore, on a conjoint reading of Sections 31(5), 34(3) and 2(h) along with the observations of the Supreme Court in Tecco Trichy (supra) and Benarsi Krishna (supra), only when the original signed copy of the Award was received by the ED/CEO of BSP, limitation for challenging the Award under Section 34 commenced. Signed copy of the Award in the present case was received by the counsel on 02.08.2018 and was thereafter sent to the Legal Department of the Petitioner at its Corporate office in Delhi, where it was received on 06.08.2018. Legal Department called upon the counsel handling the arbitration to give an opinion, which was received on 17.08.2018. After studying the opinion to challenge the Award, the original award along with the opinion was sent to BSP in 4th week of August, 2018. All documents were put in a note-sheet for consideration of ED, BSP on 01.09.2018 and before CEO, BSP, the Competent Authority on 05.09.2018 to take a final decision and therefore, the limitation will start either on 01.09.2018 or 05.09.2018. Period of 3 months would thus expire on 02.12.2018 or 05.12.2018 and since the present petition was filed on 12.11.2018, it was within limitation.
(H) Without prejudice, even if receipt of the Award by the Legal Department on 06.08.2018 is considered as starting point of limitation, petition was filed within 3 months. The period of 3 months expired on 06.11.2018 but the High Court was closed on account of Diwali break from 04.11.2018 to 11.11.2018 and the petition was filed on the date of re-opening i.e. 12.11.2018. Period from 04.11.2018 to 11.12.2018, when the Court was closed, is to be excluded as per Section 4 of the Limitation Act, 1963.
(I) Argument of the Respondent that the initial filing of the petition on 12.11.2018 was non-est cannot be accepted for more than one reason. Respondent, for the first time, after one and a half years from receiving notice and when the opening arguments on merits were concluded by the Petitioner, raised the issue of non-est filing, though not pleaded in reply to the petition. Therefore, Respondent cannot be allowed to raise this argument. [Ref. Thonikkudam Bhagwati Mills v. Reena Ravindra Khona & Ors., 2007 SCC OnLine Bom 448]. This is more so when the Registry of this Court did not point out this objection.
(J) The filing on 12.11.2018 was valid and all the defects marked by the Registry were curable. Petition filed on 12.11.2018 was a detailed petition with exhaustive grounds signed by the Authorised Representative of the Petitioner on every page of the pleading. Petition contained verification and was also signed by the counsel and was accompanied by Statement of Truth and vakalatnama duly authorising the counsel to file the petition and was signed by the party. All essential requirements of vakalatnama were fulfilled and only the welfare stamp was missing. The same does not make the authorisation given to the counsel defective. [Ref. Delhi High Court (Original Side) Rules, 2018, Chapter V, Rules 1 and 3]. The alleged defect in the Statement of Truth was curable. Requirement of filing the Statement of Truth was introduced through the Commercial Courts Act, 2015 whereby certain provisions of CPC were amended in its applicability to commercial suits. Section 16 of the said Act makes CPC as amended by the Schedule to the said Act applicable only to suits in respect of a commercial disputes of a specified value and a petition under Section 34 is not a suit. [Ref. M/s Dwivedi and Sons v. Bharat Petroleum Corporation and Ors., Civil Writ Jurisdiction Case No. 11279 of 2019 High Court of Judicature at Patna para 20; M/s Janaki Spinning Mills Ltd. v. K. Ganeshan, 2018 SCC OnLine Mad 3420 para 13; and Lilawati Gupta v. Union of India, MANU/GH/0070/2004 para 14-16]. Even assuming that filing of a Statement of Truth with a petition under Section 34 is a mandate, the defects pointed out were merely procedural and curable. The Division Bench of this Court in Oriental Insurance (supra), held that even where impugned award, Statement of Truth, vakalatnama and Court fees were not filed with a petition, the same would not render the petition non-est. The same view was taken by another Division Bench of this Court in Steel Stripes Wheels Ltd. (supra). The Court held that as long as the ownership of the documents/petition can be established, filing cannot be termed as non-est and rest of the defects were curable. Filing will be non-est only when it is without signatures of either party or appointed counsels. In the present case, pleadings were duly signed by both the counsels and the Authorized Representative of the Petitioner and ownership was clearly identifiable and filing was valid.
(K) The Supreme Court in Vidyawati Gupta and Others v. Bhakti Hari Nayak and Others, (2006) 2 SCC 777, held that requirements of Orders VI and VII CPC are directory and not mandatory and are procedural in nature. Therefore, any omission in respect of affidavit, verification etc. would not render the plaint invalid as these are curable defects. [Ref. Alka Kasana v. Indian Institute of Technology, 2015 SCC OnLine Del 11455]. The Supreme Court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another, (2006) 1 SCC 75, observed that appeal filed without signature is not a defect which can lead to consequences of dismissal of the appeal, unless the Rules say so. Recently, this Court has reiterated that in case the defects in the initial filing were procedural, a mere increase in the number of pages would not render the filing non-est and therefore, even this argument of the Respondent that the number of pages increased from the date of filing to the final petition is no consequence. [Ref. Viceroy Engineering (supra)].
(L) If the Court comes to a finding that the filing on 12.11.2018 was non-est and re-filing was done on 06.12.2018, which was proper in all respects, then there is a delay of 1-4 days, if counted from 01.09.2018/05.09.2018 or of 23-29 days, if counted from 06.08.2018. In both the scenarios, delay is condonable as it falls within the 30 days condonable period under Proviso to Section 34(3) of the 1996 Act. Supreme Court has interpreted and held that the period of 3 months stipulated in Section 34(3) is 3 months and not 90 days. [Ref. State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another, (2010) 12 SCC 210]. Petitioner has filed a detailed affidavit setting out sufficient cause for condonation of delay in filing the petition within 3 months and the delay deserves to be condoned. Signed copy of the Award received by the Legal Department at Delhi on 06.08.2018 was sent for legal opinion, which was received on 17.08.2018 and after carefully studying the Award and the documents etc., matter was placed before the ED on 01.09.2018 and before CEO on 05.09.2018. The CEO approved the proposal to challenge the Award on the same day. Thereafter, counsels were engaged and after completion of formalities, the case was entrusted to the counsels in the first week of October, 2018. The files were voluminous with thousands of pages of documents and the new counsel took time to understand the case and go through them. Multiple trips had to be made by the concerned officers of BSP to Delhi to have conferences with the counsels for preparing the petition, as the subject matter was highly technical in nature.
Contention on behalf of the Petitioner on merits of the Award:
(a) The impugned award is in conflict with public policy of India, being contrary to the contractual terms agreed upon between the parties, containing findings based on unintelligible reasons and no evidence and importantly, Tribunal has re-written the contract between the parties. The impugned award, whereby exorbitant damages, heavy costs and high rate of interest has been awarded in favour of the Respondent, deserves to be set aside on all scores.
(b) Pursuant to amendment in the 1996 Act by the Amendment Act of 2015, admittedly, ground of patent illegality is no longer available for challenging the present award, passed in an International Commercial Arbitration, but an arbitral award is not wholly insulated from challenge. The Supreme Court in Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI), (2019) 15 SCC 131, while dealing with an International Commercial Arbitral Award, where the Appellant was registered in Korea, has laid down the contours and confines of examining and adjudicating objections in relation to contravention of public policy and upon examination of the provisions of Section 34(2) of the 1996 Act, held as follows:-
76. However, when it comes to the pu