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M/S. CONTAINER CORPORATION OF INDIA LIMITED vs M/S. SHIVHARE ROAD LINES

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$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 25th April, 2024

+ O.M.P. (COMM) 441/2023 & I.A. 21172/2023, 21175/2023, 23396/2023, 9136/2024
M/S. CONTAINER CORPORATION OF
INDIA LIMITED ….. Petitioner
Through: Mr. Sudhir Nandrajog, Senior Advocate with Mr. C.P. Rajwar and Mr. Savyasachi Rawat, Advs. (M: 9811016352)
versus
M/S. SHIVHARE ROAD LINES
….. Respondent
Through: Mr. Avneesh Garg with Mr. Parv Garg and Mr. K.S. Rekhi, Advs. (M: 9711903476)
CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.
I.A. 21175/2023 (for delay)
2. This is an application for condonation of delay in filing the present Petition. For the reasons stated in the application, the delay is condoned. Application is disposed of.
O.M.P. (COMM) 441/2023 & I.A. 21172/2023, 23396/2023, 9136/2024
3. The present petition challenges the impugned award dated 22nd December, 2022, corrected on 9th March, 2023 passed by the ld. Sole Arbitrator.
4. The Petitioner in the present case is engaged in the business of providing services of handling and transportation of the containers belonging to it as well as to various shipping lines. The Petitioner invited tenders regarding cargo and container handling operations as also terminal and road Transportation of ISO- DSO Containers at Inland Container Depot, Malanpur. The Petitioner accepted Respondent’s tender and a letter of intent was issued on 1st December, 2005.
5. The case of the Petitioner is that the equipment’s/vehicles deployed by Respondent to carry the capacity, did not met the ISO standards. Further, the Contract was concluded on 6th April, 2008. The Respondents thereafter invoked arbitration. The ld. Sole arbitrator vide order dated 22nd December, 2022, passed the award wherein claims 1, 2 and 4 to 6 were decided in favour of the Respondent. As per the award the Petitioner had to deposit certain amount with respect to each claim.
6. Vide order dated 20th October, 2023 the Court directed the Petitioner to deposit the awarded amount with upto date interest with the Registrar General of the Court. Thereafter I.A. 23396/2023 has been filed by the Respondent objecting the maintainability of the present petition on the aspect of non-est filing.
7. The stand of the Respondent is that the filing of the Section 34 petition is a non-est filing as the initial filing on 8th June, 2023 was not accompanied with the arbitral award. Ld. counsel submits that as per the filing logs of the Registry, the initial filing did not even have the attestation of the affidavits, no vakalatnama was filed and even the copy of the award itself was absent. The matter was refiled on 21st September, 2023 along with the award, by which time, the limitation for filing the Section 34 petition has already come to end. He relies upon the decisions in Union of India v. Panacea Biotech and National Research Development Corporation & Anr. v. Chromous Biotech Pvt. Ltd..
8. Mr. Nandrajog, ld. Sr. counsel submits that the Registry’s report may be perused by the Court.
9. The Court has vide order dated 23rd November, 2023 called for a report from the Registry. The said report shows that on the date when the petition was first filed i.e., 8th June, 2023, the petition was only running into 42 pages and the following defects were raised:
“DESCRIPTION OF ANY OTHER DEFECTS:TOTAL 42 PAGES FILED, NO PAGE NUMBEIRNG MENTIONED ON THE INDEX, NO AWARD FILED, NO DOCUMENTS FILED, AFFIDAVIT NOT ATTESTED, NO VAKALTNAMA FILED. BOOKMAKRING BE DONE AS PER THE NORMS GIVEN ON THE WEB PORTAL OF DELHI HIGH COURT,”

10. The Court has perused the decision of the Ld. Division Bench in Union of India v. Panacea Biotech which in turn relies upon the decision of the Division Bench in Oil and Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering Enterprises. The said decision is categorical to the effect that the petition under Section 34 would have to be accompanied with the arbitral award. Though, there are certain defects that could be considered as curable defects, the non-filing of the award would be a fatal defect and would make the filing as a non-est.
“31. The pre-requisite of filing a copy of the impugned Award along with the Petition under Section 34 of the Act, 1996 has been emphasised by this Court in Executive Engineer v. Shree Ram Construction, (2010) 120 DRJ 615 (DB) and SKS Power Generation (Chhattisgarh) Ltd. v. ISC Projects Private Limited, 2019 SCC OnLine Del 8006.
32. The Division Bench of this Court in Oil and Natural Gas Corporation Ltd. v. Joint Venture of Sai Rama Engineering Enterprises & Megha Engineering and Infrastructure Limited, 2023 SCC OnLine Del 63 had observed that though Section 34 of the Act, 1996 does not prescribe any particular procedure for filing an application to set aside an award, it definitely has to set out the grounds on which the application is made. It was also held that the application has to be accompanied by the impugned Award as it would otherwise be impossible to appreciate the grounds upon which the Award is challenged. It was observed as under:
“42. 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.”
XXX
36. 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…..”

11. The petition is, accordingly, liable to be dismissed, being beyond the period of limitation as prescribed under Section 34(3) of the Arbitration and Conciliation Act. The amount lying deposited in the Registry along with the accrued interest (minus TDS on the interest component) be released in favour of the Respondent. The Respondent is free to enforce the award in accordance with law for the remaining unpaid portion of the awarded amount.
12. The petition is disposed of. All pending applications are disposed of.

PRATHIBA M. SINGH
JUDGE
APRIL 25, 2024
dj/ks

O.M.P. (COMM) 441/2023 Page 2 of 2