BHARAT BROADBAND NETWORK LIMITED vs STERLITE TECHNOLOGIES LIMITED
$~ (Full Bench)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.12.2024
Pronounced on:07.02.2025
+ FAO(OS) (COMM) 70/2024 & CM APPL. 21475/2024
PRAGATI CONSTRUCTION CONSULTANTS
Appellant
Through: Mr. S.S. Sastry, Mr. Brijesh Tiwari, Mr.Priyank Garg & Mr.Umesh Kr, Advs.
Versus
UNION OF INDIA & ANR.
.Respondents
Through: Mr.Shashank Garg, Sr. Adv. with Mr.Ripu Daman Bhardwaj, CGSC, Ms.Nishtha Jain, Ms.Aradhya Chaturvedi, Ms.Vidhi Gupta,
Mr.Hussain Taqvi, Advs. for UOI. And Mr.Gurmail, XEN/C/Northern Railway.
Ms.Suparna Jain, Mr.Dushyant K Kaul, Advs. for Intervenor.
+ O.M.P. (COMM) 20/2024 & I.As. 568/2024, 570/2024, 3462/2024 & 9732/2024
BHARAT BROADBAND NETWORK LIMITED ….Petitioner
Through: Mr.Jayant Mehta, Sr. Adv. with Mr.Deepayan Mandal, Mr.Mridul Bansal & Mr.Naman Varma, Ms.Ayushi Kumar, Advs.
Versus
STERLITE TECHNOLOGIES LIMITED
.Respondent
Through: Mr.A.K.Thakur, Mr.Rishi Raj, Mr.Sujeet Kumar & Mr.Ningthem Oinam, Advs.
Ms.Payal Chawla, Ms.Hina Shaheen & Ms.Latika Arora, Advs. for Intervenors
CORAM:
HON’BLE MS. JUSTICE REKHA PALLI
HON’BLE MR. JUSTICE NAVIN CHAWLA
HON’BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T
NAVIN CHAWLA, J.
PREFACE
1. This Full Bench has been constituted to answer the reference made by the learned Single Judge of this Court vide his Order dated 21.03.2024 (hereinafter referred to as Order of the Reference) passed in OMP(COMM) 20/2024 titled Bharat Broadband Network Limited v. Sterlite Technologies Limited.
2. The relevant extracts from the Order of the Reference, which would also indicate the question of law to be determined by this Full Bench, is as under:
4. As far as the Statement of Truth is concerned, it is undisputed that the Statement of Truth was not filed on 27.10.2023, when the petition was first filed. However, learned counsel for the parties have drawn my attention to two Division Benches judgments, which come to different conclusions as to whether the lack of Statement of Truth constitutes a fatal defect in the original filing.
5. The first of these decisions is ONGC v. Sai Rama Engineering Enterprises [2023 SCC OnLine Del 63]. Mr. Jayant Mehta, learned Senior Counsel for the petitioner has drawn my attention to paragraph Nos. 30 to 35 which read as follows:
“30. We concur with the learned Single Judge that certain defects are curable and do not render the application as non est. However, the nature of certain defects is such that it would not be apposite to consider the defective application as an application under Section 34 of the A&C Act, to set aside an arbitral award. Undisputedly, every improper filling is not non est.
31. We are unable to concur with the view that the minimum threshold requirement for an application to be considered as an application under Section 34 of the A&C Act is that, each page of the application should be signed by the party, as well as the advocate: the vakalatnama should be signed by the party and the advocate; and it must be accompanied by a statement of truth. And, in the absence of any of these requirements, the filing must be considered as non est. It is essential to understand that for an application to be considered as non est, the Court must come to the conclusion that it cannot be considered as an application for setting aside the arbitral award.
32. It is material to note that Section 34 of the A&C Act does not specify any particular procedure for filing an application to set aside the arbitral award. However, it does set out the grounds on which such an application can be made. Thus, the first and foremost requirement for an application under Section 34 of the A&C Act is that it should set out the grounds on which the applicant seeks setting aside of the arbitral award. It is also 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. In addition to the above, the application must state the name of the parties and the bare facts in the context of which the applicants seek setting aside of the arbitral award.
33. It is also necessary that the application be signed by the party or its authorised representative. The affixing of signatures signify that the applicant is making the application. In the absence of such signatures, it would be difficult to accept that the application is moved by the applicant.
34. In addition to the above, other material requirements are such as, the application is to be supported by an affidavit and a statement of truth by virtue of Order XI, Section I of the Commercial Courts Act, 2015. It is also necessary that the filing be accompanied by a duly executed vakalatnama. This would be necessary for an advocate to move the application before the court. Although these requirements are material and necessary, we are unable to accept that in absence of these requirements, the application is required to be treated as non est. The application to set aside an award does not cease to be an application merely because the applicant has not complied with certain procedural requirements.
35. It is well settled that filing an affidavit in support of an application is a procedural requirement. The statement of truth by way of an affidavit is also a procedural matter. As stated above, it would be necessary to comply with these procedural requirements. Failure to do so would render an application under Section 34 of the A&C Act to he defective hut it would not render it non est.”
[Emphasis supplied.]
6. In contrast, Mr. Thakur cites a later Division Bench judgment in ONGC V. Planetcast Technologies Ltd., [2023 SCC OnLine Del 8490], in which the Court has held as follows:
“40. It has been argued by the counsel for the appellant that procedural enactments ought not to be considered in such a manner that it would prevent the Court from meeting the ends of justice. The amendments effected in Commercial Courts Act, 2015 to various provisions of CPC as applicable to the commercial disputes have been geared to achieve such object but being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the plaint non-est. Reliance had been placed on Vidyawati Gupta V5. Bhakti Hari Nayak (2006) 2 SCC 777, wherein the Supreme Court after noting the celebrated decision of the Supreme Court in the case of Salem Advocate Bar Association vs. Union of India (2003) I SCC 49, the effect of the amendments introduced in the Code by the amending Act 46 of 1999 and 22 of 2002, reiterated the principle that rules or procedure are made to further the cause of justice and not to obstruct the same.
41. Petitions under Section 34 of the Act, 1996 fall within the jurisdiction of the Commercial Division of the High Court, making the Commercial Courts Act, 2015 applicable to such petitions. The pre requisite of filing a Statement of Truth has been emphasised in Order XI Rule 1 C.P.C. as amended under Commercial Courts Act, 2015 which reads as under:
Order XI Rule 1 CPC:
***
(3) The plaint shall contain a declaration on oath from the plaintiff that all documents in the power, possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have any other documents in its power, possession, control or custody.
Explanation.A declaration on oath under this sub-rule shall be contained in the Statement of Truth as set out in the Appendix.”
42. In this regard, it is pertinent to refer to Section I5A of the Commercial Courts Act, 2015 which provides for the verification of pleadings presented to the commercial courts which reads as under:
I5A. Verification of pleadings in a commercial dispute.
(1) Notwithstanding anything contained in Rule 15, every pleading in a commercial dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to this Schedule.
(2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the parties to the proceedings, or by any other on behalf of such party or parties who is proved to the satisfaction of the Court to be acquainted with the facts of the case and who is duly authorised by such party or parties.
(3) Where a pleading is amended, the amendments must be verified in the form and manner referred to in sub-rule (1) unless the Court orders otherwise.
(4) Where a pleading is not verified in the manner provided under sub-rule (1), the party shall not be permitted to rely on such pleading as evidence or any of the matters set out therein.
(5) The Court may strike out a pleading which is not verified by a Statement of Truth, namely, the affidavit set out in the Appendix to this Schedule.”
43. Section 15A of C.P.C as amended under Commercial Courts Act, therefore, requires that a pleading has to be mandatorily supported by a duly attested affidavit by way of verification failing which the said pleading shall not be permitted to be read as evidence of any manner set out therein. It further provides that any pleadings not verified by a Statement of Truth, namely, the affidavit may be struck out by the Court. It is, therefore, evident that the affidavit by way of the Statement of Truth is mandatorily required to be filed along with the petition in order to be a document worth considering under the law.
44. The pre-requisite of filing the Statement of Truth has been reiterated in the case of Jay Polvchem (India) Ltd & Ors. Vs. S.E. Investment Ltd. 2018 SCC OnLine Del 8848, where this Court while dealing with non-filing of Statement of Truth, held that a Statement which is neither signed nor supported by an affidavit cannot be considered as an application under Section 34 of the Act. The Petition thus filed without the Statement of Truth is non-est.
45. Similarly in Director-cum-Secretary, Department of Social Welfare v. Saresh Security Services Pvt. Ltd., (2019 SCC OnLine Del 8503), the petition was filed without a Statement of Truth. The question therefore was whether such a petition could qualify as a filing in law? This question has been a subject matter of several decisions including the one relied upon by the learned counsel for the Respondent. It has been held that such a petition would not qualify as a filing and the Court has discouraged litigants to file such petitions in order to avoid the rigour of strict provision of limitation as stipulated under Section 34(3) of the Act.
46. Suffice is it to say, without the Statement of Truth, the filing of the petitions under Section 34 of the Act, 1996 by the petitioners becomes non-est and is reduced to a sheer futile attempt to pause the limitation period from running out. The appellant cannot claim the benefit of a non-est filing though made within the period of limitation, when the proper filing of the petition was only made after the expiry of the stipulated period of three months and thirty days. ”
[Emphasis supplied.]
7. It may be mentioned that the judgment in Planetcast has noticed the earlier Judgment in Sal Rama, which has been referred to in paragraph 34, albeit in the context of filing of a copy of the award.
8. It appears to me that there is a clear conflict between the views taken by the two Division Benches. In Sal Rama, the requirement of the statement of truth has been described as “procedural” and capable of rectification. A similar argument was taken before the Division Bench in Planetcast (para 40), but rejected.
9. The question of requirement of a valid filing arises in several cases under Section 34 of the Act. The point with regard to non-filing of the
Statement of Truth is one which requires authoritative clarification in view of the conflicting views taken by the Division Benches.
10. In these circumstances, I am of the view that the matter be referred to a Bench of two or more Judges, as provided for under Rule 2, Chapter II of the Delhi High Court (Original Side) Rules, 2018. The Registry is directed to place the matter before Hon’ble the Acting Chief Justice for reference of the matter to an appropriate Bench.
(Emphasis supplied)
3. From a reading of the above, it would be apparent that the learned Single Judge of this Court was of the opinion that there is a conflict of view expressed by the two Division Benches; one in Oil and Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil), 2023 SCC OnLine Del 63, which had held that the non-filing of the Statement of Truth under Order VI Rule 15A of the Code of Civil Procedure, 1908 (in short, CPC), as applicable to the Commercial Courts Act, 2015 (in short, CC Act), will not make a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (in short, A&C Act) as non-est; and in Oil and Natural Gas Corporation Ltd. v. Planetcast Technologies Ltd., 2023 SCC OnLine Del 8490, which had held that a petition filed under Section 34 of the A&C Act without a Statement of Truth or with a Statement of Truth which is neither signed nor supported by an affidavit, shall be non-est.
4. While the above Reference was pending adjudication before the Full Bench, by an Order dated 09.05.2024 passed by the Division Bench of this Court in FAO(OS)(COMM) 70/2024, titled Pragati Construction Consultants v. Union of India, the question whether non-filing of the Arbitral Award itself would render a petition filed under Section 34 of the A&C Act as non-est, was referred also to the Full Bench, by observing as under:
6. The leaned counsel for the appellant submits that the filing as on 01.11.2023 was not non est. It was complete in all respects except that it was not supported by a vakalatnama and the impugned award.
7. The learned counsel appearing for the appellant has referred to an earlier decision of a Coordinate Bench of this Court in Oil and Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering Enterprises (Sree) & Meglia Engineering & Infrastructure Limited (Meil): 2023 SCC OnLine Del 63 and has submitted that the question whether a filing is non est must be considered by examining all defects cumulatively. It is also pointed out that this Court had held that “/« 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.'” He submitted that none of the said defects could by itself be considered as fatal to the filing.
8. The learned counsel appearing for the respondent has countered the aforesaid submissions. He has also referred to the decision of the Coordinate Bench of this Court in Union of India v. Panacea Biotec Limited: 2023 SCC Online Del 8491 holding that non-filing of the award would render the filing non est. It is also submitted that the rationale for the same is obvious as the grounds urged in the application to set aside the award cannot be examined in a meaningful manner if the application is not accompanied by the arbitral award. He also submitted that the entire object
of reckoning the period for filing the petition after receipt of the signed copy of the award was to enable the parties seeking to challenge the same to make a meaningful challenge. Thus, it would not be in conformity with the scheme of things that an application to set aside the award be then filed without a copy of the same.
9. We have heard the learned counsel for the parties.
10. We have some reservations as to the proposition that non-filing of an award simplicitor would render an application filed under Section 34 of, the A&C Act non est as held by the learned Single Judge. The question whether a filing is non est must be examined from the standpoint of whether it is an intelligible filing and depends on the cumulative effect of the defects. The decision in Oil and Natural Gas Corporation Ltd. (supra) did not hold that non-filing of an award itself would render the filing as non est.
11. In the present case, it is also noticed that although the initial filing was only 111 pages and the filing on 22.12.2023 spanned over 2150 pages. However, the application as initially filed remained unaltered. The date of
the application as well as the affidavit affirming the same, was not altered in any manner. It is apparent that the application was re-filed, albeit, with further documents.
12. In this view, we consider it apposite that the appeal be heard by a Larger Bench. We note that a Larger Bench has been constituted to examine the question whether a defect of non-filing the Statement of Truth along with the application would be an incurable defect rendering the plaint liable to be rejected.
(Emphasis supplied)
RELEVANCE OF THE QUESTION(S) OF LAW REFERRED:
5. The above issues arise for consideration of this Court as Section 34(3) of the A&C Act prescribes a strict period of limitation for filing of a petition under Section 34 of the A&C Act and also restricts the period of delay that can be condoned by the Court.
6. Section 34(3) of the A&C Act reads as under:
34. Application for setting aside arbitral award.
xxx
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal.
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
7. The Supreme Court in Union of India v. Popular Construction, 2001(8) SCC 470, held that the limitation period of 03 months plus 30 days as provided in Section 34(3) of the A&C Act is inelastic and inflexible. Therefore, any delay beyond this period cannot be condoned by the Court. The same view was reiterated by the Supreme Court in Simplex Infrastructure Ltd. v. Union of India, (2019) 2 SCC 455.
8. Keeping in view the above, in Delhi Development Authority v. Durga Construction Co., 2013 SCC OnLine Del 4451, a Division Bench of this Court, while holding that consideration and parameters to be applied in cases of delay in re-filing are different from the cases of a delay in filing of a petition under Section 34 of the A&C Act, further emphasised that in certain cases where the petitions or applications filed by a party under Section 34 of the A&C Act are so hopelessly inadequate and insufficient, or they contain defects which are fundamental to the consideration of the proceedings, then, in such cases, the filing done by the party would be considered non-est and of no consequence. It was held that in such cases, the party cannot be given the benefit of initial filing and the date on which the defects are cured would have to be considered as the date of initial filing. We may quote from the Judgment as under:
17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing.
9. Additionally, the Division Bench in Durga Construction Co. (supra) also emphasised that where the defects are only perfunctory and not affecting the substance of the petition, even though the petition is re-filed beyond the period of 3 months and 30 days, the Court has the jurisdiction to condone the said delay in re-filing. It emphasised that Section 34(3) of the A&C Act only prescribes the limitation with regard to the filing of an application to challenge the Award and has no further application on the delay in re-filing of such petition. We may quote from the Judgment as under:
18. In several cases, the defects may only be perfunctory and not affecting the substance of the application. For example, an application may be complete in all respects, however, certain documents may not be clear and may require to be retyped. It is possible that in such cases where the initial filing is within the specified period of 120 days (3 months and 30 days) as specified in section 34(3) of the Act, however, the re-filing may be beyond this period. We do not think that in such a situation the court lacks the jurisdiction to condone the delay in re-filing. As stated earlier, section 34(3) of the Act only prescribes limitation with regard to filing of an application to challenge an award. In the event that application is filed within the prescribed period, section 34(3) of the Act would have no further application. The question whether the Court should, in a given circumstance, exercise its discretion to condone the delay in re-filing would depend on the facts of each case and whether sufficient cause has been shown which prevent re-filing the petition/application within time.
19. The Supreme Court in the case of Union of India v. Popular Construction Company: (2001) 8 SCC 470 has held that the time limit prescribed under section 34 of the Act to challenge an award is not extendable by the Court under section 5 of the Limitation Act, 1963 in view of the express language of section 34(3) of the Act. However, this decision would not be applicable in cases where the application under section 34 of the Act has been filed within the extended time prescribed, and there is a delay in re-presentation of the application after curing the defects that may have been pointed out. This is so because section 5 of the Limitation Act, 1963 would not be applicable in such cases. Section 5 of the Limitation Act, 1963 provides for extension of the period of limitation in certain cases where the Court is satisfied that the appellant/applicant had sufficient cause for not preferring an appeal or making an application within the specified period. In cases, where the application/appeal is filed in time, section 5 would have no application. The Supreme Court in the case of Indian Statistical Institute v. Associated Builders: (1978) 1 SCC 483 considered the applicability of section 5 of the Limitation Act, 1963 where the objection to an award under the provisions of the Arbitration Act, 1940 was filed in time but there was substantial delay in re-filing the same. The High Court in that case held that there was a delay in filing the objections for setting aside the award and consequently, rejected the application for condonation of delay. An appeal against the decision of the High Court was allowed and the Supreme Court rejected the contention that there was any delay in filing objections for setting aside the award. The relevant extract from the decision of the Supreme Court is reproduced below:-
“9. ….. In the circumstances, it cannot be said that objections were not filed within time or that because they were not properly stamped the objections could not be taken as having been filed at all. Therefore, in our view, there had not been any delay in preferring the objections. The delay, if any, was in complying with the directions of the Registrar to rectify the defects and refiling the objections. The delay, as we have pointed out earlier, is not due to any want of care on the part of the appellant but due to circumstances beyond its control.
10. The High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in representation of the objection petition after rectifying the defects. Section 5 of the Limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower court for condonation of the delay in preferring the objections and the order of the court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be represented.”
20. It follows from the above that once an application or an appeal has been filed within the time prescribed, the question of condoning any delay in re-filing would have to be considered by the Court in the context of the explanation given for such delay. In absence of any specific statute that bars the jurisdiction of the Court in considering the question of delay in re- filing, it cannot be accepted that the courts are powerless to entertain an application where the delay in its re-filing crosses the time limit specified for filing the application.
10. The Supreme Court in Northern Railway v. Pioneer Publicity Corporation Pvt. Ltd., (2017) 11 SCC 234, has also held that Section 34(3) of the A&C Act has no application while considering an application seeking condonation of delay in re-filing of the petition, as the said Section applies only to the initial filing of the application under Section 34 of the A&C Act. We may quote from the Judgment as under:
4. We find that said Section 34(3) has no application in re-filing the petition but only applies to the initial filing of the objections under Section 34 of the Act. It was submitted on behalf of the respondent that Rule 5(3) of the Delhi High Court Rules states that if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to re-filing.
5. We are not inclined to accept this contention, particularly since the petitioner has offered an explanation for the delay for the period after the extensions.
11. From the above, it would be evident that for purposes of stopping the period of limitation for filing of an application under Section 34 of the A&C Act, it is the date of the filing of such petition which would be relevant. If the date of the filing is within the period of 3 months, it is within the period of limitation as prescribed under Section 34(3) of the A&C Act. If the application is not filed within 3 months of the receipt of the Arbitral Award, it is beyond the period of the limitation. In such a case, delay in filing of the application under Section 34 of the A&C Act can be condoned by the Court, however, only upto a period of 30 days, and that too on sufficient cause being shown. In essence, if an application under Section 34 of the A&C Act is not filed within the period of 3 months and 30 days, the Court has no jurisdiction to condone the delay in filing of such an application, and it shall have to be dismissed for being barred by limitation.
12. The Court, however, was repeatedly confronted with a situation wherein, though the application under Section 34 of the A&C Act was filed within the period of limitation, however, after removing the defects in such filing, the application came to be re-filed only beyond the period of 3 months and 30 days as prescribed under Section 34(3) of the A&C Act. It was held that in such a situation, the power of the Court to condone the delay in re-filing of the application, will not be curtailed by Section 34(3) of the A&C Act, and the Court shall have the power to condone such delay in re-filing even though the re-filing has occurred beyond the period of 3 months and 30 days.
13. The Court was, however, also confronted with situations wherein, the Court, on considering the nature of the application initially filed under Section 34 of the A&C Act within the period of 3 months or within the period of 3 months and 30 days (which is the maximum condonable period for filing of an application under Section 34(3) of the A&C Act), formed an opinion that the application so filed was lacking the basic attributes of an application under Section 34 of the A&C Act and was, therefore, non-est. In such a case, it was held that the date of re-filing of the application would be considered as the date of the first filing of the application under Section 34 of the A&C Act, and the period of limitation shall stop running only on that date, with no benefit being extended to the applicant of the initial date of filing of the application for the purposes of limitation under Section 34(3) of the A&C Act. In such a case, if the date of re-filing of the application was beyond the period of 3 months and 30 days, as prescribed under Section 34(3) of the A&C Act, the application shall be considered as being not only barred by time, but also, as being filed beyond the maximum period by which the delay in filing can be condoned.
14. Though not in relation to the A&C Act, in Sunny Abraham v. Union of India, (2021) 20 SCC 12, the Supreme Court has held that the term non-est conveys the meaning of something that is treated to be not in existence because of some legal lacuna in the process of creation of subject instrument which goes beyond remedial irregularity. It refers to a case where a legal instrument is deemed to be not in existence because of certain fundamental defects in its issuance and subsequent action cannot revive its existence and rectify acts done in pursuance. Such instruments are treated as invalid, that is, what is non-existent in the eyes of law and cannot be revived retrospectively.
15. The prime consideration in such cases, therefore, is as to what is or what is not a non-est filing of the application under Section 34 of the A&C Act, and this is what has been referred in the above two proceedings to us for adjudication; one is on the effect of the absence or defect in the Statement of Truth (in OMP(COMM) 20/2024), and the other of the effect of non-filing of the Arbitral Award (in FAO(OS)(COMM) 70/2024).
SUBMISSIONS OF THE PARTIES:
16. Mr. Jayant Mehta, the learned senior counsel appearing for the petitioner in OMP(COMM) 20/2024, titled Bharat Broadband Network Limited v. Sterlite Technologies Limited, has submitted that Order VI Rule 15A of the CPC, as applicable to the CC Act, which mandates the filing of the Statement of Truth, in fact, has no application as far as an application under Section 34 of the A&C Act is concerned. He submits that the said provision applies only to a pleading, which is defined in Order VI Rule 1 of the CPC to mean a plaint or the written statement. As the application filed under Section 34 of the A&C Act challenging an Arbitral Award is not in form of a plaint, Order VI Rule 15A of the CPC, shall have no application thereto. Placing reliance on the Judgment of the Supreme Court in P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., 1995 Supp(2) SCC 348, he submits that the use of the word mean in Order VI Rule 1 of the CPC indicates that the definition is exhaustive and consequently, cannot be extended to a pleading beyond a plaint or a written statement. He submits that the CC Act uses the expressions Application, Suit, and Appeal, distinctly from one and another, and as held by the Supreme Court in Bihar Public Service Commission v. Saiyed Hussain Abbas Rizvi & Anr., (2012) 13 SCC 61, the use of distinct expressions in law refers to matters which are distinct from one another. The application filed under Section 34 of the A&C Act, therefore, cannot be equated to a pleading under Order VI Rule 1 of the CPC, to which alone Order VI Rule 15A of the CPC applies.
17. Mr. Mehta further submits that the Statement of Truth, as required under Order VI Rule 15A of the CPC, is only a verification of pleadings, and an absence thereof, is only a procedural defect, curable at a later stage. Therefore, even where the application under Section 34 of the A&C Act is filed without a Statement of Truth, or is filed with a Statement of Truth which is not properly signed or attested, it would only be a curable defect and would not make the application filed under Section 34 of the A&C Act as non-est. In support of his submission, he places reliance not only on the Judgment of this Court in Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil) (supra), which is a subject matter of the Reference, but also on the Judgment of the Supreme Court in Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors., (2006) 2 SCC 777; of this Court in Prayag Polytech Pvt. Ltd & Anr. v. Raj Kumar Tulsian, 2023 SCC OnLine Del 6058, and in Unilec Engineers Ltd. HPL Electric and Power Ltd., 2023 SCC OnLine Del 5162; of the Calcutta High Court in Harji Engineering Works Pvt. Ltd v. Hindustan Steelworks Construction Ltd., 2021 SCC OnLine Cal 2457; and, of the Bombay High Court in Haier Telecom (India) Pvt. Ltd. v. Drive India Enterprise Solutions Ltd., 2018 SCC OnLine Bom 2829.
18. Placing reliance on the Judgment of the Supreme Court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr., (2006) 1 SCC 75, he submits that procedural defects and irregularities which are curable, should not be allowed to defeat substantial rights or cause injustice. He submits that the objections filed under Section 34 of the A&C Act is the only remedy available to a party against the Arbitral Award, and same should not be defeated on mere procedural irregularities.
19. Placing reliance on the Judgment of the Supreme Court in PASL Wind Solution Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd., (2021) 7 SCC 1, he submits that the A&C Act is a self-contained exhaustive Code. He submits that Section 34 of the A&C Act does not prescribe a format or compulsory requirements of an application filed thereunder, and in absence thereof, the Court should not assume certain conditions to be pre-requisites to such an application, non-compliance whereof would make such an application non-est.
20. He submits that even, the Delhi High Court (Original Side) Rules, 2018 (hereinafter referred to as the DHC Rules) do not prescribe any format or essential requirements of an application under Section 34 of the A&C Act. Therefore, in absence of such stipulation, it would not be justified to non-suit a litigation by prescribing some procedural requirement as an essential element, absence whereof makes the application filed non-est.
21. On our pointed query of what may or may not constitute an essential pre-requisite to an application filed under Section 34 of the A&C Act, he fairly produced before us two charts of precedents where the Courts have held certain essential attributes of an application under Section 34 of the A&C Act, absence whereof would make an application filed under Section 34 of the A&C Act to be declared as non-est, while on the other hand where the Courts have held the absence of certain requirements to be only procedural in nature and, therefore, curable, thus not warranting the filing to be declared as non-est. We reproduce these charts as under:
22. On the other hand, Mr. A. K. Thakur, the learned counsel appearing for the respondent in OMP(COMM) 20/2024, by placing reliance on the Judgment of this Court in Planetcast Technologies Ltd. (supra), reiterates that non-filing of a Statement of Truth is a fundamental defect in the application filed under Section 34 of the A&C Act, which cannot be cured later. In absence of a Statement of Truth, the application filed under Section 34 of the A&C Act would be considered non-est and would not stop the period of limitation from running. In support, he places reliance on the Judgments of this Court in Director-cum-Secretary, Department of Social Welfare v. Sarvesh Security Services Pvt. Ltd., 2019 SCC OnLine Del 8503; Jay Polechem (India) Ltd. & Ors. v. S.E. Investment Ltd., 2018 SCC OnLine Del 8848; and, in Ircon International Ltd. v. Reacon Engineers (India) Pvt. Ltd., 2022 SCC OnLine Del 1860.
23. He also sought to distinguish the Judgments relied upon by Mr. Mehta by submitting that the same are in relation to commercial suits and not with respect to the applications under Section 34 of the A&C Act.
24. He submits that the necessity of the Statement of Truth, especially for an application under Section 34 of the A&C Act, cannot be undermined as the intention of the Legislature is to expedite the arbitration and the adjudication of any challenge to the Arbitral Award. In the Statement of Truth, the objector therefore has to, on affidavit, state that the objector has filed all the documents in its power and possession and has not concealed any documents from the Court, which alone can expedite the adjudication of such an application. Therefore, the importance of the Statement of Truth cannot be undermined or be treated as merely procedural in nature.
25. He further submits that in the present case, not only was the Statement of Truth not filed by the applicant, but there were also substantial changes made in the application that was filed initially under Section 34 of the A&C Act. He drew our attention to the changes made by the applicant to its application under Section 34 of the A&C Act initially filed by it. We are intentionally refraining ourselves from narrating the same, as we shall confine ourselves only to the question of law to be adjudicated without going into the merits of two cases before us. The factual matrix shall have to be considered by the concerned Benches upon the question of law being answered by us in this Judgment. Suffice here to say, the learned counsel for the respondent has submitted that where there are substantial changes made in the application post its initial filing, it shall be considered as a new application and the period of limitation shall stop only when the application with all its changes is eventually filed to be listed before the Court.
26. Mr.S.S. Sastry, the learned counsel appearing for the appellant in FAO(OS)(COMM) 70/2024, submits that the appellant has been non-suited by the learned Single Judge on the ground of non-filing of both the Impugned Arbitral Award and the Vakalatnama executed in favour of the learned counsel for the appellant with the initial application filed under Section 34 of the A&C Act.
27. As far as the non-filing of the Arbitral Award is concerned, he submits that Section 34 of the A&C Act does not mandate filing of the Arbitral Award which is in challenge. He submits that wherever the Legislature required the Impugned Order to be necessarily filed, it has specifically stipulated the same in the provision itself, like in Order XLI Rule 1 of the CPC and Section 423 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (in short, BNSS).
28. He submits that even the DHC Rules do not prescribe that the Impugned Arbitral Award has to be necessarily filed along with an application under Section 34 of the A&C Act. He submits that, therefore, the filing of the Impugned Arbitral Award cannot be considered as an essential condition, absence whereof shall render the application so filed to be declared as non-est.
29. Placing reliance on the charts filed by Mr. Jayant Mehta, Mr. S.S. Sastry submits that it has consistently been held that non-filing of the Vakalatnama is a curable defect and not filing the same would not make the application to be declared as non-est.
30. He submits that even otherwise, the same counsel, who was appearing for the appellant before the Arbitrator, had filed the application before this Court. Placing reliance on the Judgment of the Supreme Court in Uday Shankar Triyar (supra), he submits that in such a situation, non-filing of Vakalatnama is not a fatal defect.
31. Controverting the above submission, Mr. Shashank Garg, the learned senior counsel appearing for the respondent in FAO(OS)(COMM) 70/2024, submits that this Court has almost consistently held that non-filing of the Impugned Arbitral Award, would make the application filed under Section 34 of the A&C Act as non-est, as without the same, the Court would be in no position to appreciate a challenge thereto. He submits that it would, therefore, be a basic and bare minimum requirement of an application filed under Section 34 of the A&C Act. For this, he places reliance on the Judgments of this Court in SKS Power Generation (Chhattisgarh) Ltd. v. ISC Projects Pvt. Ltd., 2019 SCC OnLine Del 8006; Brahamputra Cracker and Polymer Ltd. v. Rajshekhar Construction Pvt. Ltd., 2023 SCC OnLine Del 516; Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil) (supra); Union of India v. Panacea Biotec Ltd., 2023 SCC OnLine Del 8491, Planetcast Technologies Ltd. (supra), Union of India v. NCC Ltd., 2024 SCC OnLine Del 5878; and, Steel Authority of India v. JSC Cryogenmash, 2024 SCC OnLine Del 3271.
32. On the question of non-filing of the Vakalatnama, he submits that an application filed under Section 34 of the A&C Act is not an appeal against the Arbitral Award. He submits that, therefore, a comparison drawn by the learned counsel for the appellant with Order XLI Rule 1 of the CPC and Section 423 of the BNSS is not apposite. He submits that on the other hand, this Court has, in various Judgments, held that non filing of a Vakalatnama would make the application under Section 34 of the A&C Act as non-est. In support, he places reliance on the judgment of SKS Power Generation (Chhattisgarh) Ltd. (supra).
33. He submits that as this Full Bench is to determine the question of law of what would render an application filed under Section 34 of the A&C Act to be declared as non-est filing, he would also make a reference to other attributes that such an application must possess, which according to him are mandatory and absence whereof would make an application to be declared as a non-est filing.
34. He submits that the Statement of Truth, signature of the party on the application, and proper prayer clause, are mandatory requirements of a petition under Section 34 of the A&C Act. He submits that where the grounds of the challenge to an Arbitral Award are later changed in a substantial manner, the earlier filing would be treated as non-est.
35. As we are to determine the question of law in these References, we also allowed other counsels, who wished to assist us, to intervene and make submissions on the same.
36. Ms. Payal Chawla, Advocate, submits that filing of a Statement of Truth is mandatory. She submits that while Order VI Rule 15(1) of the CPC, which is applicable to the Ordinary Civil Suit, may be directory in nature. The Legislature having introduced Order VI Rule 15A of the CPC for commercial disputes of a specific value, the same has to be treated as mandatory in nature and not as an empty formality or a curable defect.
37. She submits that similarly, the signature of a party challenging the Arbitral Award, or its pleader, is also mandatory for a petition filed under Section 34 of the A&C Act. In support, she places reliance on the Judgments of this Court in Sarvesh Security Services (supra); Joint Venture of Sai Rama Engineering Enterprises & Megha Engineering & Infrastructure Ltd. (Meil) (supra); Planetcast Technologies Ltd. (supra); and, in Oriental Insurance Co. Ltd. v. Air India Ltd., 2021 SCC OnLine Del 5139.
38. She submits that the same strict rule, however, shall not apply to a case of non-filing of Vakalatnama, which according to her, is a curable defect. In support, she places reliance on the Judgments in Kodi Lal v. Ahmad Hasan Ch. and 32 Ors. 1945 SCC OnLine Oudh CC 22, Uday Shankar Triyar (supra); Bihar State Electricity Board v. Bhowra Kankanee Collieries Ltd., 1984 (Supp) SCC 597; and, Shastri Yagnapurushdasji & Ors. v. Muldas Bhundardas Vaishya & Anr. 1966 SCC OnLine SC 198.
39. She submits that filing of the Impugned Arbitral Award would also be mandatory, as held by this Court in Brahamputra Cracker and Polymer Ltd (supra).
40. She submits that while an application under Section 34 of the A&C Act must contain the grounds of challenge to the Arbitral Award, minor modifications therein, correcting typographical errors or adding a few words or correcting a few mistakes, can be made during the re-filing. However, in view of Paragraph 6 of the Statement of Truth, the total pages of a pleading cannot be changed.
41. Mr. Dushyant K Kaul, Advocate, also intervened and was heard on the question of law. He reiterated the submission of Mr. Jayant Mehta, the learned senior counsel appearing for the petitioner in OMP(COMM) 20/2024 and submitted that Order VI Rule 15A of the CPC applies only to pleadings, which in terms of Order VI Rule 1 of the CPC is only a plaint or a written statement. He submits that the same is distinct from an application under Section 34 of the A&C Act and, therefore, Order VI Rule 15A of the CPC would not be applicable to such an application.
42. He submits that even otherwise, non-filing of the Statement of Truth is a curable defect and would not render an application filed under Section 34 of the A&C Act without the same, to be declared as non-est. In support, he places reliance on the Judgments of this Court in Kailash Chand Gain Chand Jain v. Union of India, 2024 SCC OnLine Del 3598; CEPCO Industries Pvt. Ltd. v. Tewari Restaurant Pvt. Ltd., 2023 SCC OnLine Del 87; and, in Prayag Polytech Pvt. Ltd & Anr. (supra).
43. He further submits that a challenge to an Arbitral Award may not necessarily be a commercial dispute as defined under the CC Act, and therefore, there cannot be two different yardsticks for the necessary compliances to be made while filing an application under Section 34 of the A&C Act; one being for challenge to an Award under the CC Act, while the other being challenge to an Award which does not qualify as a commercial dispute of a specific value. He submits that therefore, filing of the Statement of Truth cannot be considered as an essential pre-requisite to an application under Section 34 of the A&C Act.
44. Ms.Hina Shaheen, Advocate, also intervened, and submitted that though the A&C Act was amended on more than one occasion, the requirement of filing of the Impugned Arbitral Award was not mandated. She submits that this in itself would imply that the non-filing of the Impugned Arbitral Award would not make an application filed under Section 34 of the A&C Act to be declared as non-est. She reiterates that where the Legislature wants for a party to necessarily file the Impugned Judgment or Order, it expressly provides the same. She places reliance on Order XLI Rule 1 of the CPC and Section 423 of the BNSS to support her contention.
45. She further reiterated the submissions that were made by Mr.Jayant Mehta, the learned senior counsel appearing for the petitioner in OMP(COMM) 20/2024.
ANALYSIS AND FINDINGS:
46. We have considered the submissions made by the learned counsels.
47. As is noted hereinabove, Section 34(3) of the A&C Act prescribes a strict period of limitation within which a challenge to an Arbitral Award can be filed. It also restricts the power of the Court to condone the delay in filing the same, by providing that a delay of not more than 30 days can be condoned by the Court. For this, there are different parameters that are to be adopted while considering a delay in filing of a petition under Section 34 of the A&C Act as against a delay in re-filing of the same. While for a delay in filing, the power of the Court is restricted and it cannot condone a delay of beyond 30 days, however, the power of the Court for condoning the delay in re-filing is not so restricted and a delay in re-filing of the application, even if it is of a period of more than 30 days, can be condoned.
48. In answering the question referred to us, we must also keep in mind the two cardinal principles that are applicable to a petition under Section 34 of the A&C Act;
(a) Firstly, arbitration being an alternate dispute resolution mechanism, has to have its efficacy in expeditious disposal. It is for this reason that not only the extent of judicial intervention is curtailed, as would be evident from Section 5 of the A&C Act as also Section 34 of the A&C Act, but also a stricter timeline is provided under Section 34(3) of the said Act. This object cannot be defeated by allowing a party to file an application under Section 34 of the A&C Act without the basic attributes, with an intent to merely stall the period of limitation from running;
(b) Secondly, the only remedy available against a domestic Arbitral Award is an application under Section 34 of the A&C Act. This right, therefore, should not be negated on mere technicalities, and the procedural requirements should not be allowed to trump the substantive rights of a party.
49. Keeping the above cardinal principles of law in mind, the Courts have adopted the test of non-est filing, wherein the Courts considered if the initial filing of the application under Section 34 of the A&C Act is so deficient so as not to be considered as a filing at all. Resultantly, even if such deficient filing is made within the period of limitation as prescribed in Section 34 of the A&C Act, the Court will not consider the same to have been filed in law, and the period of limitation for filing the same shall not stop and shall continue to run.
50. We now need to determine as to what would constitute a non-est filing.
51. As observed earlier, is Sunny Abraham (supra), the Supreme Court has held that the term non-est refers to a legal instrument that is treated to be not in existence in the eyes of the law as it goes beyond remedial irregularities. Therefore, for an application filed under Section 34 of the A&C Act to be declared as non-est, it must be beyond remedial irregularities in the eyes of law.
52. Section 34 of the A&C Act reads as under:
34. Application for setting aside arbitral award.(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if
the party making the application [establishes on the basis of the record of the arbitral tribunal that]
a party was under some incapacity, or
the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that
the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
the arbitral award is in conflict with the public policy of India.
[Explanation 1.For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,
the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or
it is in contravention with the fundamental policy of Indian law; or
it is in conflict with the most basic notions of morality or justice.
Explanation 2.For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.
53. Further, a reading of the above provision would show that it does not expressly lay down a format or specify the essential requirements that an application filed under Section 34 of the A&C Act must meet or comply with. It simply lays down the grounds on which the Arbitral Award may be set aside by a Court.
54. Similarly, even the DHC Rules do not lay down the necessary requirements of an application under Section 34 of the A&C Act. A Division Bench of this Court in Air India (supra) taking note of the above, observed as under:
10. Pertinently, under the relevant High Court Rules, there is no clear and definite guideline to show as to when a petition -when originally filed, would be considered as non-est, or otherwise. The nature of defects – which would render an initial filing as non-est, is not clearly set out. Therefore, it would not be fair to a party – who files a petition before a Court, to be told that his initial filing was non-est due to certain defects. That declaration or pronouncement by the Court – in each case, would be subjective and ad-hoc.
55. However, in our view, the above cannot mean that there are no mandatory requirements of an application under Section 34 of the A&C Act, and that a challenge to an Arbitral Award may be made in any form or manner, and the Court would be helpless even if the application filed is not intelligible at all or lacks even the very basic attributes and form of an application. Taking a crude example, let us assume that an application is filed challenging an Award dated 01.01.2025 on 03.01.2025, annexing therewith a copy of some other Arbitral Award totally unconnected with the proceedings, without signatures of the applicant or his advocate, without affidavit, without Vakalatnama, without any grounds of challenge, without back-ground of facts, etc., however, clearly saying that the application is under Section 34 of the A&C Act challenging the Arbitral Award dated 01.01.2025. The application also bears the required Court Fee. Would this be a filing that would stop the limitation under Section 34(3) of the A&C Act from running? Our answer has to be in the negative. Accepting such a suggestion, in our view, would negate the restriction of limitation that has been placed under Section 34(3) of the A&C Act. It will be like mocking the system of the Court and the provisions of the A&C Act and the legislative intent behind it. The Courts, to answer such situation, have devolved the concept of non-est filing or a filing not recognised by law.
56. Having held the above, we now need to consider as to what those basic and essential ingredients of an application under Section 34 of the A&C Act are.
NON-FILING OF THE ARBITRAL AWARD
57. As noted hereinabove, a challenge to an Arbitral Award is maintainable on very limited grounds; it is not in form of an appeal against the Arbitral Award.
58. Section 34(2)(a) of the A&C Act states that an Arbitral Award may be set aside by the Court only if the party making the application establishes on the basis of the record of the Arbitral Tribunal that a party was under some incapacity; or the Arbitration Agreement is not valid; or the party making the application was not given proper notice of appointment of an Arbitrator or the arbitral proceedings; or was otherwise unable to present its case; or the Arbitral Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration for it contains a decision on matters beyond the scope of submission to arbitration; or the composition of the Arbitral Tribunal or the arbitral procedure, was not in accordance with the agreement of the parties. The Court may under Section 34(2)(b) of the A&C Act, also set aside an Arbitral Award if it finds that the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being enforced, or the Arbitral Award is in conflict with the public policy of India. Under Sub-Section 2A of Section 34 of the A&C, an Arbitral Award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the Award is vitiated by patent illegality appearing on the face of the Award.
59. In our opinion, none of the above conditions can be satisfied unless the Arbitral Award under challenge is placed before the Court. Therefore, filing of the Arbitral Award under challenge along with the application under Section 34 of the A&C Act is not a mere procedural formality, but an essential requirement. Non-filing of the same would, therefore, make the application non-est in the eyes of the law.
60. In fact, we find that this Court has almost consistently held that non-filing of the Arbitral Award would make the petition non-est. Reference in this regard may be made to: SKS Power Generation (Chhattisgarh) Ltd.,(supra), SPML Infra Ltd. v. Graphite India Ltd., 2020 SCC OnLine Del 2808, Air India Ltd.,(supra), Reacon Engineers India Pvt. Ltd., (supra), Executive Engineer National Highway Division v. S&P Infrastructure Developers (P) Ltd., 2022 SCC Online Del 1859, ITDC v. Bajaj Electricals Ltd., 2023 SCC Online Del 158, NHAI v. KNR Constructions, 2023 SCC Online Del 519, Brahamputra Cracker and Polymer Ltd. (supra), Panacea Technologies Ltd., (supra), Delhi Development Authority v. Gammon Engineers & Contractors Private Limited, 2024 SCC Online Del 5154, Container Corp. of India v. Shivhare Road Lines, 2024 SCC Online Del 5490, and, Good Health Argo Tech Pvt. Ltd. v. Haldiram Snacks Pvt. Ltd., 2024 SCC Online Del 6050.
61. Even in both the Judgments which led to the present Reference, that is, in Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil) (supra), and in Planetcast Technologies Ltd. (supra), both the Division Benches have held that the filing of the Impugned Arbitral Award is not an empty procedural requirement and is, therefore, absolutely essential. We may first quote from Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Ltd. (Meil), (supra) as under:
32. It is material to note that Section 34 of the A&C Act does not specify any particular procedure for filing an application to set aside the arbitral award. However, it does set out the grounds on which such an application can be made. Thus, the first and foremost requirement for an application under Section 34 of the A&C Act is that it should set out the grounds on which the applicant seeks setting aside of the arbitral award. It is also 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. In addition to the above, the application must state the name of the parties and the bare facts in the context of which the applicants seek setting aside of the arbitral award.
(Emphasis Supplied)
62. In Planetcast Technologies Ltd. (supra), the requirement of filing of the Impugned Arbitral Award was reiterated as under:
37. Therefore, it has been consistently held that non filing of the Award along with the Petition under Section 34 of the Act, 1996 is a fatal defect, making such filing as non-est. The objections under Section 34 must be on justiciable grounds as prescribed under Section 34(2) as such grounds can be ascertained only by referring to the Award made by the learned Arbitrator. The filing of an Award is not an empty procedural requirement since sans the Award, the Court is left absolutely clueless to comprehend the grounds taken in the objection Petition and thereby unable to decide whether the Petition merits Notice to be issued or out-right rejection. In the absence of the Award, the grounds on which the objections have been taken cannot be appreciated and considered if they are within the scope of Section 34(2) and thus, such filing of objections without the impugned Award render the entire objections incomprehensible for consideration under Section 34 of the Act.
(Emphasis Supplied)
63. Consequently, we have no hesitation in holding that for an application under Section 34 of the A&C Act, non-filing of the Impugned Arbitral Award is a fatal defect, making the application non-est.
64. We may, herein, itself note that the only Judgment which may be read as dispensing with the requirement of filing of the Arbitral Award was in Ambrosia Corner House Pvt. Ltd. v. Hangro S Foods, 2023 SCC OnLine Del 517, of which one of us namely (Navin Chawla, J) was the author. However, the same has been rightly distinguished by the Division Bench of this Court in Planetcast Technologies Ltd. (supra), by observing as under:
36. To further clarify the law on the indispensable requirements while filing a Petition under Section 34 of the Act, 1996, it is pertinent to refer to the judgment o