Condonation Of Delay Re- Filing S. 34, A&C Act Application Must Be Allowed If Delay Is Procedural And Curable: Delhi High Court

The Delhi High Court single bench of Justice Dinesh Kumar Sharma held that not every defect leads to the dismissal of a petition under Section 34 of the Arbitration and Conciliation Act, 1996 and took a liberal approach for condonation of delay. It held that defects were not fundamental in nature and could be termed as curable or procedural. Brief Facts: The Petitioner approached the Delhi High Court (“High Court”) and filed a petition under Section 34(3) of the Arbitration and Conciliation Act (“Arbitration Act”), seeking condonation of a 23-day delay in filing the petition. The impugned arbitral award was issued on 29.08.2023. According to the Petitioner, the initial filing of the petition took place on 20.12.2023, and after rectifying a defect, the final submission occurred on 16.01.2024. The Petitioner contended that although the petition was lodged within the stipulated 120-day period, a delay ensued after three months, as outlined under Section 34(3) of the Arbitration Act. The delay was attributed to the Petitioner being a government organization, and encountering difficulties in securing necessary authorizations and approvals. However, the Respondent opposed the condonation by contending that the government ought not to be treated differently. The Respondent argued that the reasons provided in the application for condonation were insufficient and did not warrant leniency from the High Court. Observations by the High Court: The High Court referred to the decision of the Supreme Court in ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, and noted the distinction between defects that render an application 'non est' and those that are deemed curable. The High Court clarified that not every defect leads to the dismissal of an application under Section 34 of the Arbitration Act. Instead, the pivotal requirement is that the application must outline the grounds for setting aside the arbitral award and be accompanied by necessary documents, such as a copy of the award and pertinent party information. The High Court held that the defects highlighted by the Respondent, as per the Log Sheet, primarily concern procedural elements such as missing page numbering in the index, incomplete payment of court fees, omission of specified pecuniary value in jurisdictional paragraphs, improper bookmarking as per the Online Portal norms of the High Court, and incomplete details of counsel as per relevant court rules. These deficiencies, upon examination, according to the High Court, did not strike at the core of the petition but rather were procedural and thus can be rectified. “As per the Log Sheet, the defects are with respect to page numbering being missing in the index, court fees and one time pf fees to be paid and specified pecuniary value to be given in the paragraph pertaining to the pecuniary jurisdiction, bookmarking to be done as per the norms of the Online Portal of Delhi High Court and complete details of the counsel to be provided as per the Chapter 3- Form of Pleading, Rule 2 of Delhi High Court (Original Side) Rules, 2018. Hence, it is evident that the defects in the present case are not fundamental in nature and can be termed as curable or procedural in nature as has been pointed out.” Following the principle of allowing liberal interpretation in matters of refiling, the High Court held that it was evident that if the defects are procedural a lenient approach can be adopted. Therefore, the High Court condoned the delay in filing the petition. Case Title: Department Of Transport Govt Of Nct Of Delhi Vs Green City Transport Corporation Pvt LtdCitation: 2024 LiveLaw (Del) 376 Case Number: O.M.P. (COMM) 42/2024, I.As. 1367-69/2024. Advocate for the Petitioner: Mr Darpan Wadhwa, Sr. Adv. with Mr Vanshay Kaul, Mr Sameer Vashisht, ASC, GNCTD, Ms Neelakshi Bhadoria, Advs. Advocate for the Respondent: Mr. Manan Joshi, Mr. Pranav Menon, Mr. Aryan Verma, Advs. Click Here To Read/Download Order

Condonation Of Delay Re- Filing S. 34, A&C Act Application Must Be Allowed If Delay Is Procedural And Curable: Delhi High Court

Rajesh Kumar

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