Filing a dummy appeal u/s 34 of Arbitration and Conciliation Act, 1996 without the copy of Impugned Award amounts to non-est filing and cannot be treated as filed within the limitation period.

The High Court of Delhi in the case of Union of India vs Bharat Biotech International Ltd. (O.M.P. (COMM) 399/2019) on 18.03.2020 held that though the Court is empowered to condone delay beyond the extended period of limitation of 3 months and 30 days, it is requisite for the party seeking the condonation to show that despite his diligence, the rectification of defects and re-filing could not be carried out within the limitation period, for bonafide reasons beyond his control.

Facts :
A petition was filed u/s 34 of Arbitration and Conciliation Act, 1996 by the petitioner within statutory period of 90 days along with an affidavit, a statement of truth and a duly executed vakalatnama. The petitioner places reliance on Chapter IV of Delhi High Court (Original Side) Rules, 1967 that failure to file a copy of the impugned Award was not fatal to the petition as it was never the intention of the legislature to insist on a copy of the arbitral award at the very first instance. He further contended that Delhi High Court (Original Side) Rules 2018, did not necessitate appending the copy of Arbitral Award to the Sec. 34 petition.

The petitioner further placed reliance on several judgments stating that the parameters for condonation of delay in re-filing a petition differ from those applicable for condonation of delay in filing the petition and the Court ought to apply a liberal yardstick while considering the prayer for condoning the delay in re-filing the same.

The respondent on the other hand argued that the petition which had been filed at the first instance was merely a “bunch of papers as it suffered from critical deficiencies which cannot be disregarded by this Court”. He contended that the initial filing was a dummy filing which bore references to documents which were completely alien to the dispute at hand. He further place reliance on several judgments and argue that the initially filed petition was a mere skeletal filing, could not be treated as a valid filing in the eyes of law.

Issue:
Petitioner contended that re-filing was done before the Statutory period of limitation (i.e. 90 days) prescribed under section 34(3) of the Act.
Respondent contended that the petition filed within the statutory period were merely a “bunch of papers comprised of 83 pages” and could not be treated as valid in eyes of law. Subsequently, the petition was refiled along with 441 pages after the limitation period had expired.

Ratio:
The Court relied upon the principles laid down in DDA v. Durga Construction Co. wherein it was held that a party cannot be given the benefit of initial filing if the petitions or applications filed are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings. The Court further observed that the petition initially filing “was a careless and deliberate attempt to somehow stop the clock on limitation amounting to clever manoeuvre to buy time”. Therefore, the failure to annex the copy of the impugned award “cannot be underplayed as a trivial defect but is a defect of such gravity that it would render the original filing as a mere dummy filing”.
The Court further cited several judgments wherein it was held that non-filing of the impugned award would be fatal. The Court further opined that this Court does not have the power to condone delay caused beyond 30 days after the expiry of the limitation period of three months”. Reference was made to decision in Union of India v. Popular Construction Co. wherein the Supreme Court had held that the Court cannot entertain an application to set aside the award beyond the extended period under proviso to Section 34(3) of the Act.
The Court held that though the Court is empowered to condone delay beyond the extended period of limitation of 3 months and 30 days, it is requisite for the party seeking the condonation to show that despite his diligence, the rectification of defects and re-filing could not be carried out within the limitation period, for bonafide reasons beyond his control.
The court held that the petitioner had failed to provide any justifiable reason, much less a sufficient reason to seek condonation of delay, hence, his petition cannot succeed.