BOSTON SCIENTIFIC INDIA PVT. LTD. vs ADVANCED MEDTECH SOLUTIONS PVT. LTD
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 371/2023 and I.A. No. 17828/2023
BOSTON SCIENTIFIC INDIA PVT. LTD. …..Petitioner
Through: Mr. Raj Shekhar Rao, Senior Advocate with Ms. Shweta Bharti, Mr. J.K. Chaudhary, Mr. Sumit Malhotra, Ms. Sonali Khanna, Ms. Vishakha Gupta and Mr. Zahid Laiq Ahmed, Advocates
versus
ADVANCED MEDTECH SOLUTIONS PVT.
LTD. …..Respondent
Through: Mr. Naresh Thacker, Mr. Abhishek Kumar Shrivastava and Mr. Aakash Sharma, Advocates
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 05.07.2024
I.A. No. 17828/2023 (condonation of delay in re-filing)
1. This is an application seeking condonation of delay of 28 days in re-filing the petition.
2. The award under challenge was passed on 27 April 2023. There is no dispute about the fact that this petition was first filed on 24 July 2023. Apparently, it was refiled on 27 July 2023. Any which way, it was filed and first re-filed before the expiry of ordinary period of 90 days available under Section 34(3)1 of the Arbitration and Conciliation Act, 19962 for preferring a challenge to the arbitral award.
3. The Registry raised the following defects on 27 July 2023:
1. Each page of pleading be signed by the petitioner/petitioners, blanks be filled in the statement of truth.
2. In case of electronic documents-declaration on oath be filed by the party for electronic record is as per Order XI Rule VI of CPC.
3. One-time pf to be filed by the plaintiff at the time of filing of the plaint/petition/suit and by the defendant at the time of filing of the written statement CH-1, R-13-V1, R-2-2018
4 Certificate to the effect that relevant record of the arbitration proceedings being the relevant pleadings documents depositions etc has been filed
5. Caveat report be obtained and at the time of each subsequent refiling and proof of service be filed.
6. Fresh notice of motion upon counsel for concerned respondant be filed if 3 days have elapsed since the date of last service, any amendments done in the petition should also be informed/served to the opposite/concerned party
7. Service be made to their nominated counsel personally/tracking report/delivery report of speed post/courier be attached
8.
9. Petition/applications/ annexures / order / power of attorney should be stamped/court fees short or missing
10. Petition /Applications/ MOP/ Index/ power of attorney be signed and dated by petitioners and advocate
11. Rest of the objections will be raised later on (after modification)/according to correct classification/ nomenclature of the case
12. Blanks be filled in affidavit
13. Description of any other defects: Total 1691 pages filed, petition be filed as per circular dt 16/12/22, email id of each of the parties be given, petitoner/s and respondents and also of the counsel in the memo of parties. Each page of the petition be signed by the petitioner with complete signature on the petition as per the Commercial Court Act. No court fees paid one time pf fees be paid as per notification dt 23/08/2019. Objections persists
14. Description of any other defects: Total 1726 pages filed, no page numbering mentioned on the index, bookmarking be done as per the norms given for e filing on the web portal of Delhi High Court, petition be filed as per circular dt 16/12/22, ? all petitons which are filed udner the Arbitration and Conciliation Act, 1996/1940 are placed in one consolidated format and in a manner similar to those pertaining to writ petition? All petitons under arbitration and OMP be placed in one consolidated format and in a similar to those pertaining to writ petitions (see circular no 21151-1/original/dhc dt 16/12/22. Page number 4, 66, 68, 70, 72, 74, 76, 78, 80, 82… Blank filed, email ID of each of the parties be given, petitoner/s and respondents and also of the counsel in the memo of parties each page of the petition be signed by the petitioner with complete signature on the petition as per the Commercial Court Act orientation of the documents be corrected.
4. The petition was refiled a number of times and was ultimately registered on 12 September 2023. The period of 90 days which was available for re-filing after objections, first pointed out by the Registry, had expired in the meanwhile. Accordingly, the petitioner has filed IA 17828/2023, seeking condonation of delay in re-filing.
5. Mr. Thacker, learned counsel for the respondent, submits that initial filing of this petition was non est. As such, he submits that the petition has effectively been filed beyond the maximum period of condonable delay under Section 34(3) of the 1996 Act. He submits that no cogent or sustainable ground for condonation of delay has been advanced by the petitioner. He places reliance on the two judgments rendered by Division Benches of this Court in Oil and Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering Enterprises (Sree) and Meghna Engineering & Infrastructure Ltd3 and U.O.I. v. Panacea Biotech Ltd4.
6. According to Mr. Thacker, objections 1, 3, 6, 9, 10 and 13 in the list of defects pointed out by the Registry on 27 July 2023 rendered the first re-filing as non est. I am unable to agree.
7. Non est filing, in my understanding, has to suffer from such factual defects as would render it practically a mala fide attempt at seeking to escape limitation. The nature of the defects which may render filing as liable to be regarded as non est stand captured in para 41 of the report in ONGC, which reads thus :
41. We may also add that 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. 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.
8. Though Mr. Thacker would seek to submit that, of the categories of defects noticed in para 41 of ONGC, at least in the present case, the petition can be treated as not having been filed with authorisation. This Court is unable to accept this submission. The only ground on which Mr. Thacker so submits is that every page of the petition was not signed. That, in my view, does not render the petition as having been filed without authorisation. Mr. Thacker does not seek to submit that the person who had signed the petition was not authorised to sign it. As such, the defects pointed out by the Registry of this Court on 27 July 2023 cannot, in the light of para 41 of ONGC be treated as such as to render the filing non est.
9. Mr. Thacker has also referred to another decision of a Division Bench of this Court in Panacea Biotec Ltd. He has specifically relied on paras 46 to 48, 52, 55 to 58 of the said decision, which read thus:
46. The requirement of filing a complete petition has been amply emphasised in the analysis above. Such incomplete Petitions without a prayer clause which are also unaccompanied by the impugned Award cannot be accepted as a valid filing as the time limit for filing objections under Section 34 of the Act, 1996, is inelastic. Thus, it is beyond any doubt that a complete petition has to be filed within this time frame of 3 months and 30 days under Section 34(3) of the Act, 1996, which the appellant has failed to do.
47. We find it absolutely unacceptable for parties to expect incomplete filings with such fundamental defects to be kept on hold until they are lackadaisically cured by the petitioner way after the limitation period has expired. If even arbitration related proceedings are caught in the cob web of such delays, the whole purpose of choosing arbitration as an alternate dispute resolution, would be rendered otiose.
Whether the Period prescribed under Section 34(3) of the Act, 1996 can be extended on establishing Sufficient reasons for delay:
48. It is pertinent to mention that while three months is given as time for filing the objections as a matter of right, a concession of thirty more days is given but it is circumscribed by the condition that sufficient cause has to be disclosed.
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Application for Dealy in Re-filing:
52. It has been argued by the counsels for the Appellants that the date of first filing ought to be considered as the date of filing for the purposes of limitation and not the subsequent re-filings made after the removal of defects. It had been agitated that in the present case, the delay was not in filing the objections which was within the time period prescribed under Section 34(3) of the Act, but the delay was in re-filing. The question of 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 prevented re-filing the petition/ application within time. The rules for condonation of delay in refiling is not circumscribed by Section 34 of the Act, 1996. Moreover, the stringent rules for considering the reasons for delay under Section 34 of the Act,1996 are not strictly applicable while considering the explanation for re-filing. Also, there is no time frame prescribed for re-filing once the filing has been done within the given time frame.
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55. For the academic purpose, we may consider the reasons given in the condonation Application explaining the delay. It reads as under:
3. It is respectfully submitted on account of several defects point out by registry in voluminous appeal filed it took long time to came the defect and some extra days wore in getting file approved for Union of India. One of the defects pointed out by registry was to give email address the respondents which against took same extra days to objection removed.
56. From the reading of the entire petition including the reasons provided in the application for condonation of delay in re-filing, no cogent reason has been disclosed by the appellants for their inability to file a complete petition with a period of three months. Be that as it may, even if this court were to condone the delay to the extent of granting thirty days beyond the period of three months, then too it would be of no avail to the appellants as the first valid filing was on 31.07.2019, which is beyond the inelastic period of three months and thirty days i.e. beyond 120 days from the date of receipt of a copy of the Award from the learned Arbitrator.
Conclusion:
57. From the above discussion, it is amply established that the law has been crystallised that the requirement of the strict timeline provided in Section 34 of the Act, 1996 has to be abided by filing a complete Petition. The limitation period under Section 34 cannot be stretched by parties through dummy filings which cannot be construed as valid as they are non-est. The object of providing a narrow limitation period under Section 34 was to ensure the expeditious enforcement of Arbitral Awards. If such dummy filings are legitimised, then the whole object of providing a strict limitation period is defeated.
58. We thus, conclude that Learned Single Judge has rightly concluded that the initial filing on 31.05.2019 was non-est for the reasons of being without Award, filing of unsigned Petition, subsequent substantial increase in number of pages and, Petition not supported by Statement of Truth. The first valid filing has been done only on 31.07.2019, which is beyond the time frame prescribed under Section 34(3) of the Act, 1996 i.e. 120 days from receipt of a copy of the Award from the learned Arbitrator, which is not extendable under any circumstances.
10. In para 46, the Division Bench refers to an incomplete petition, which cannot be treated as valid petition, as one which does not contain a prayer clause or is unaccompanied by the impugned award. These are the nature of defects which, in the succeeding para 47 have been treated as fundamental defects. The initial filing of this petition does not suffer from either of these defects.
11. The Division Bench in Panacea Biotec Ltd has also examined the aspect of condition of delay in re-filing. That, however, was in the backdrop of a situation in which the initial filing was beyond the period of 90 days available for filing the petition. The Division Bench has taken the view that if the petition is filed beyond 90 days, even if it is filed within the subsequent 30 days available for condonation, every days delay has to be explained. If, thereafter, the petition has to be re-filed, the Court has taken the view that the petitioner has to explain the delay in re-filing.
12. In the present case, the initial filing was within the ordinary period of 90 days. The defects which have been pointed out by the Registry are not, in my view, so fundamental as would render the filing non est. To particularize, among the defects to which Mr. Thacker drew attention are
(i) the absence of signatures by the petitioner on every page of the pleadings,
(ii) blanks in the statement of truth,
(iii) non-filing of one time process fee at the time of filing of the petition, and
(iv) failure to serve a fresh notice of motion on counsel for the respondent consequent on expiry of more than three days from the date of last service.
Of the remaining, the objections at S. Nos 9, 10 and 13 are completely vague. It is not clear as to whether the objection is that the petition was not properly stamped, or that the court fees were not properly affixed, or something else altogether.
13. Though Mr. Rao has been fair enough to submit that this Court may call for the original filing to satisfy itself as to the nature of the objections which existed on 27 July 2023, I am of the opinion that they, in any case, cannot be treated as so serious as to render the filing as non est. They cannot at all be analogized with filing without a prayer clause, or failure to file the impugned award or the statement of truth accompanying the petition. Though Mr. Thacker also sought to contend that that the existence of certain blanks in the statement of truth amount to the petition not being accompanied by a statement of truth, I am unable to subscribe to that view. Filing of a commercial case without a statement of truth is a serious defect, for which there is a specific provision in the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015. Filing of a petition, in a commercial case, unaccompanied by a statement of truth, cannot be equated to filing of a petition with a statement of truth which contains certain blanks.
14. The defects pointed out by the Registry were, in any case curable. They were, in fact, cured, and, even thereafter, the delay in re-filing is only of 28 days.
15. It would be a travesty of justice if this Court were to adopt a view that, in such a case, the petition should itself not be heard on merits and should be thrown out at the threshold.
16. Moreover, this Court has consistently held that the approach in considering a prayer for condonation of delay in refiling has to be more liberal than the approach while considering a prayer for delay in filing of the petition.5
17. In this case, the initial filing was within the ordinary period of 90 days available to challenge the award under Section 34(3). The submission of Mr. Thacker that the filing should be treated as non est does not impress the Court. The Court is therefore only concerned with whether delay in re-filing should be condoned. Even after all defects were removed, the delay in re-filing is only of 28 days.
18. In the circumstances of the case, I am of the opinion that the Court would not be justified in dismissing this petition on the ground of delay in filing or in in re-filing. I.A. 17828/2023 is accordingly allowed.
O.M.P. (COMM) 371/2023
19. Both sides are directed to place on record short notes of their respective submissions not exceeding five pages each after exchanging copies with other at least a week in advance of the next date of hearing.
20. The submissions of the petitioner would precisely set out
(i) the exact nature of the dispute before the learned Arbitral Tribunal,
(ii) the decision of the learned Arbitral Tribunal qua claims/counter-claims with which the petitioner is aggrieved,
(iii) the reasoning of the learned Arbitral Tribunal in arriving at the said decision claim wise/counter-claim wise, and
(iv) why this Court should interfere with the award given under the parameters of Section 34 of the 1996 Act.
21. Renotify on 3 September 2024.
C.HARI SHANKAR, J
JULY 5, 2024/yg
Click here to check corrigendum, if any
1 (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.
2 The 1996 Act, hereinafter.
3 2023 SCC Online Del 63
4 Order dt. 19 December 2023 in FAO(OS)(COMM) 81/2020
5 Competent Placement Services v. D.T.C., (2010) 120 DRJ 323 (Del) (DB), D.D.A. v. Durga Construction Co., ILR (2014) 1 Del 153 (DB)
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