Mr. Ashish Kothari, Adv v. BLACKLEAD INFRATECH PVT. LTD

Judgment

1. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 Act1, assailing judgment dated 29 October

2024 passed by a learned Single Judge of this Court in OMP (Comm) 419/2023.

2. Given the limited scope of controversy, it is not necessary to delve deep into the facts.

3. Suffice it, therefore, to state that arbitral proceedings between the appellants and the respondent culminated in an award dated 24 1 “The 1996 Act” hereinafter FAO(OS) (COMM) 288/2024 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.05.2025 19:53:44 May 2023, which was adverse to the appellants. The appellants, therefore, challenged the said award by way of a petition under Section 34 of the 1996 Act. The purported Section 34 petition was first filed by the appellants before this Court on 21 August 2023. 65 pages were filed, without any documents and without any copy of the award under challenge. The said papers were returned under defects. The appellants filed the Section 34 petition with the award and with all documents on 25 September 2023.

4. The law with respect to Section 34 and limitation in that regard is well-settled. The Supreme Court has held, in UOI v Popular Construction2, that the normal period of three months and the extendable period of 30 days envisaged in Section 34(3)3 of the 1996 Act are non-compromisable and that the Section 34 petition cannot be filed beyond 3 months and 30 days of the receipt of the award under challenge.

5. As already noted, the Section 34 petition was first presented to the Registry on 21 August 2023. That petition was, however, not accompanied by any documents. No copy of the award under challenge accompanied the petition. A Full Bench of this Court has, in its judgment in Pragati Construction Consultants v UOI4, clearly held that a Section 34 petition, unaccompanied by the award under 2 (2001) 8 SCC 470 3 (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 2025 SCC OnLine Del 636 FAO(OS) (COMM) 288/2024 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.05.2025 19:53:44 challenge, cannot be regarded as having been filed at all, and that the filing is, therefore, non est. We may reproduce the relevant passages from the decision in Pragati Construction Consultants, thus: “97. We summarise our answer to the reference, as under: Non-filing of the arbitral award along with an (a) application under the Section 34 of the A & C Act would make the said application liable to be treated and declared as non est, and the limitation prescribed under Section 34(3) of the A & C Act shall continue to run in spite of such filing. (b) Mere non-filing of the statement of truth or a defect in statement of truth being filed, that is, including with blanks or without attestation, would not ipso facto, make the filing to be non est. However, if accompanied with other defects, the court may form an opinion, based on a cumulative list of such defects, that the filing was non est. (c) Similarly, non-filing or filing of a defective vakalatnama; the petition not being signed or properly verified; changes in the content of petition being made in form of addition/deletion of facts, grounds, or filing of additional documents from arbitral record, or filing with deficient court-fee, each of these defects, individually would not render to filing of an application under Section 34 of the A&C Act to be treated and declared as non est. However, presence of more than one of such defects may, in the given set of facts involved in a case, justify the conclusion of the court that filing of the application was never intended to be final and therefore, is liable to be declared non est.” (Emphasis supplied)

6. Categorizing the filing as non est, in plain terms, means that the document is to be treated as non-existent, i.e., as never having been filed at all. In law, therefore, no Section 34 petition was filed on 21 August 2023. FAO(OS) (COMM) 288/2024 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:05.05.2025 19:53:44

7. The sequitur is that the Section 34 petition was first filed on 25 September 2023.

8. The extendable period of 30 days envisaged under the proviso to Section 34 of the 1996 Act beyond the normal period of three months admittedly expired on 24 September 2023. The petition had, therefore, to be filed on or before 24 September 2023.

9. The contention of the appellants before the learned Single Judge was that 24 September 2023 was a Sunday and that, therefore, by applying Section 105 of the General Clauses Act, 1897, the filing of the Section 34 petition on 25 September 2023 had to be treated as within time.

10. The learned Single Judge has rejected this contention, placing reliance, while doing so, on the following passages from the judgments of the Supreme Court in Assam Urban Water Supply & Sewerage Board v Subash Projects & Mktg Ltd6, Bhimashankara Sahakari Sakkare Karkhane Niyamita v Walchandnagar Industries Ltd7 and Shahgufa Ahmed v Upper Assam Polywood Products Pvt Ltd8 as well as on a judgment of a Division Bench of this Court in Mypreferred Transformation and Hospitality Pvt Ltd v Faridabad 5 10. Computation of time.— Where, by any 48[Central Act] or Regulation made after the commencement of this Act, (1) any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.