It is evident from the nature of defects that they were only technical in nature and otherwise it was a valid filing: Delhi High Court
I.A. No.2572/2021 in O.M.P. (COMM.) No. 70/2021
AIRPORTS AUTHORITY OF INDIA vs M/S TDI INTERNATIONAL INDIA PRIVATE LIMITED
The current application was under Section 5 (Extension of prescribed period in certain cases) of the Limitation Act, 1963. Filed on behalf of the petitioner seeking condonation of one day delay in re-filing the petition. Application before the HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA.
FACTS OF THE CASE
The petitioner had filed the petition under Section 34 (Application for setting aside arbitral awards) of the Arbitration & Conciliation Act, 1996 (A&C Act, 1996) against the order of 17.10.2020 on 14.01.2021 through Diary No. 83064/2021. This was within 90 days from the date of receiving the Award on 17.10.2021.
Certain objections were raised by the Registry, which were removed and the petition was re-filed. Later on further other objections were taken. These were removed and the petition was finally accepted. But here there was a delay of one day in re-filing the petitioner.
The chronology of the filings began from 14th of January 2021 on the first filing. The registry identified and gave notice of the defects on 16th January 2021. The first re-filing was done on 01st February, 2021, and the defects were notified on 11th February, 2021. The second re-filing was done on 15th February, 2021, and the defects were informed on 16th February, 2021. The third re-filing was done on 16th February, 2021, and the defects were communicated on 17th February, 2021. The fourth re-filing was done on 17th February, 2021, and on the same day, the re-filing was accepted, and the case was sent before the court. Therefore, a prayer was made that this delay be condoned.
The Court rendered its orders in light of Section 34(3) of the Arbitration & Conciliation Act, 1996. Which reads, “ 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”
The Court stated the case of Ashok Kumar Parmar vs. D.C. Sankhla 1995 RLR 85. Here, the Single Judge of the Delhi High Court held that the emphasis should be on the nature of defects found in the plaint. It was stated that if the defects would render a plaint a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not affecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit. The Division Bench upheld the same view in D.C Sankhla vs. Ashok Kumar 1995 (1) AD (New Delhi) 753.
The Court further stated the case of DDA vs. Durga Construction Company 2013 SCC OnLine Del 4451. This was a Division Bench of the Delhi High Court judgment. Here, the Court explained the distinction between non-est filing and re-filing. It was observed that the defects may only be perfunctory and not affecting the substance of the application.
For instance an application may be complete in all aspects, but certain documents may not be clear and may require to be retyped. In such a case where the initial filing is within the period of 120 days as specified in Section 34 (3) of theArbitration & Conciliation Act, 1996, but if the re-filing is beyond this period it cannot be stated that the Court lacks jurisdiction to condone the delay in re-filing.
The Court addressing the question whether it can exercise its discretion to condone the delay in re-filing expressed that it 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 Court also made distinctions between the delay in refiling and cases in delay in filing in the first instance.
The Court observed that the nature of defects were only technical in nature and otherwise it would be a valid filing. It stated that the first filing was within the period of limitation.
The Court concluded by considering the initial filing had been done within the prescribed limitation which was not non-est and the defects found were formal in nature. It also noted that consistent steps were taken to remove the defects. Thus, the Court condoned the delay of one day in re-filing of the petition. Therefore the application was allowed.
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JUDGEMENT REVIEWED BY ADITYA G S.
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