Bliss Abode Prvate Limited & Ors. vs India Bulls Housing Finance Limited And ... 2023 Latest Caselaw 4998 Del

Delhi High Court Bliss Abode Prvate Limited & Ors. vs India Bulls Housing Finance Limited And ... on 12 December, 2023 Author: Sachin Datta Bench: Sachin Datta $~ 41 to 51 * IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 12.12.2023 + O.M.P. (COMM) 295/2023 BLISS HABITAT PVT LTD AND ORS ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 296/2023 IMAGINE REALTY PVT. LTD. AND ORS ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 359/2023 IMAGINE ESTATE PVT LTD & ORS. ..... Petitioners versus INDIABULLS COMMERCIAL CREDIT LTD AND ANR ..... Respondents + O.M.P. (COMM) 360/2023 M/S. IMAGINE HOME PRIVATE LIMITED & ORS. ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR. ..... Respondents + O.M.P. (COMM) 361/2023 BLISS ABODE PRVATE LIMITED & ORS. ..... Petitioners versus INDIA BULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 362/2023 IMAGINE HABITAT PVT. LTD. & ORS. ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 363/2023 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 1 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 IMAGINE ESTATE PVT. LTD. & ORS. ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR. ..... Respondents + O.M.P. (COMM) 364/2023 BLISS AGRI ECO TOURSIM LTD & ORS. ..... Petitioners versus INDIA BULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 365/2023 M/S BLISS HOUSE PRIVATE LIMITED & ORS. ..... Petitioners versus INDIA BULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 366/2023 BLISS VILLA DELHI PVT LTD & ORS. ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents + O.M.P. (COMM) 375/2023 IMAGINE RESIDENCE PVT LTD & ORS. ..... Petitioners versus INDIABULLS HOUSING FINANCE LIMITED AND ANR ..... Respondents Presence: Advocates for petitioners: Mr. Naman Joshi, Mr. Anirudh Singh, Mr. Guneet Sidhu and Ms. Ritika Vohra, Advs. Advocates for respondents: Mr. Rajeev Nayar, Sr. Adv. alongwith Mr. Dayan Krishnan, Sr. Adv., Mr. Dheeraj Nair, Mr. Manish Jha, Ms. Vishrutyi Sahni and Ms. Aishna Jain, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE SACHIN DATTA Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 2 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 JUDGMENT IA No. 14573/2023 (delay of 26 days) and 14576/2023 (delay of 03 days in re-filing the petition) in O.M.P (COMM) 295/2023 IA Nos. 14578/2023 (delay of 26 days) and 14581/2023 (delay of 03 days in re-filing the petition) in O.M.P (COMM) 296/2023 IA Nos. 17601/2023 (delay of 26 days in filing the petition) and 17604/2023 (delay of 32 days in re-filing the petition) in O.M.P (COMM) 359/2023 IA Nos.17606/2023 (delay of 26 days in filing the petition) and 17609/2023 (delay of 32 days in re-filing the petition) in O.M.P (COMM) 360/2023 IA Nos.17611/2023 (delay of 26 days in filing the petition) and 17614/2023 (delay of 32 days in re-filing the petition) in O.M.P (COMM) 361/2023 IA Nos.17616/2023 (delay of 26 days in filing the petition) and 17619/2023 (delay of 32 days in re-filing the petition) in O.M.P (COMM) 362/2023 IA Nos.17643/2023 (delay of 26 days in filing the petition) and 17646/2023 (delay of 32 days in re-filing the petition) O.M.P (COMM) 363/2023 IA Nos.17656/2023 (delay of 26 days in filing the petition) and 17659/2023 (delay of 32 days in re-filing the petition) O.M.P (COMM) 364/2023 IA Nos.17661/2023 (delay of 26 days in filing the petition) and 17664/2023 (delay of 32 days in re-filing the petition) O.M.P (COMM) 365/2023 IA Nos.17715/2023 (delay of 26 days in filing the petition) and 17718/2023 (delay of 32 days in re-filing the petition) O.M.P (COMM) 366/2023 IA Nos.17942/2023 (delay of 26 days in filing the petition) and 17945/2023 (delay of 32 days in re-filing the petition) O.M.P (COMM) 375/2023 1. The present petitions under Section 34 of the Arbitration and Conciliation Act, 1996 (the "A&C Act") seek to assail the validity of 11 arbitral awards dated 28.02.2023. Admittedly, the said petitions were filed before the Registry of this court on 27.06.2023 / 28.06.2023.Various defects Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 3 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 which were pointed out by the Registry from time to time, details whereof shall be set forth in the subsequent parts of this order, were finally cleared on 04.08.2023 in O.M.P (COMM) 295/2023, on 05.08.2023 in O.M.P. (COMM) 296/2023, on 11.09.2023 in O.M.P.(COMM) 359/2023, O.M.P.(COMM) 360/2023, O.M.P.(COMM) 361/2023, O.M.P.(COMM) 362/2023, O.M.P.(COMM) 363/2023, O.M.P.(COMM) 364/2023, O.M.P.(COMM) 365/2023 and O.M.P.(COMM) 366/2023, and on 14.09.2023 in O.M.P.(COMM) 375/2023. 2. The delay in filing that is sought to be condoned in each of the petitions is stated to be of 26 days. However, the delay in re-filing that is sought to be condoned is slightly different. In O.M.P (COMM) 295/2023 and O.M.P. (COMM) 296/2023, the delay in re-filing sought to be condoned is of 3 days, whereas in the rest of the petitions being O.M.P.(COMM) 359/2023, O.M.P.(COMM) 360/2023, O.M.P.(COMM) 361/2023, O.M.P.(COMM) 362/2023, O.M.P.(COMM) 363/2023, O.M.P.(COMM) 364/2023, O.M.P.(COMM) 365/2023, O.M.P.(COMM) 366/2023 and O.M.P.(COMM) 375/2023, the delay in re-filing sought to be condoned is stated to be of 32 days. 3. The objections raised by the respondent no.1 in all 11 interconnected petitions are similar, however, in addition to the said similar objections, the respondent no.1 in O.M.P. (COMM) 359/2023, O.M.P. (COMM) 360/2023, O.M.P. (COMM) 364/2023 and O.M.P.(COMM) 366/2023 has also raised an objection on the ground that in the said 4 petitions, the award that was filed with the original petition was redacted and therefore illegible. 4. For the sake of convenience, only the facts in O.M.P. (COMM) 359/2023 (I.A. 17601 and I.A 17604) are being referred to, since the delay Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 4 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 sought to be condoned in re-filing of the said petition is stated to be of 32 days and also, there is an objection on behalf of the respondent no.1 on the additional ground that the copy of the award filed with the petition was redacted and illegible. 5. In I.A. 17601/2023, the petitioners have sought condonation of delay of 26 days in filing the present petition. It is submitted that the impugned arbitral award was received on 28.02.2023, and as such, the statutory period of three months expired on 31.05.2023 and the further period of 30 days was due to expire on 30.06.2023. It is further submitted that since the present petition was filed on 27.06.2023, there has been a delay of 26 days beyond the 3 months stipulated in Section 34(3) of the Arbitration and Conciliation Act, 1996 (the "A&C Act"). 6. It is submitted that the petitioners have filed the present petition well within the period of 3 months and 30 days contemplated in Section 34 (3) of the A&C Act, and have attributed the delay beyond the 3 month statutory period to the fact that there was a voluminous record which involved 11 interconnected awards, with respect to which 11 such petitions have been filed before this court. The delay in filing the present petition has been attributed by the petitioners to the fact that an arbitral award dated 28.02.2023 was issued in all 11 interconnected proceedings and that the petitioners are simultaneously contesting all 11 awards passed by the learned arbitrator, and it took the petitioners a considerable amount of time in drafting and finalizing all 11 petitions. 7. The petitioners have also relied upon Notification No. 48/Estt/EI/DHC to contend that the period from 03.06.2023 to 30.06.2023 shall be excluded for the purpose of limitation as the court was on summer Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 5 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 vacation during the said period and the said Notification issued by this court clearly states that limitation shall not run during the vacation period for the purposes of institution of civil and criminal cases. 8. The said application seeking condonation of delay of 26 days in filing the present petition has been opposed by the respondent no.1. It is averred by the respondent no.1 that the original filing of the present petition was a non-est filing and that the petitioners have failed to demonstrate any „sufficient cause‟ to seek extension of 30 days beyond the period of 3 months stipulated in Section 34 (3) of the A&C Act in filing the present petition. It is submitted that the original filing was done without authorization as it did not contain a vakalatnama or a power of attorney executed by petitioner no.4. The respondent no.1 has also raised other technical objections with respect to the vakalatnama including the objection that the same is not in consonance with the Delhi High Court Rules (Original Side) Rules, 2018. 9. The respondent no.1 has also contended that the original filing of the petition was on 28.06.2023, which was on the 120th day (3 months and 30 days) from the date of publishing of the award. It is submitted that the original filing of the petition was a non-est filing since the same was filed without a valid authorization. It is further submitted that the original filing did not have a vakalatnama and board resolution passed by petitioner no.4 in favour of the authorized signatory Mr. Brijpal Singh. It is further submitted that the vakalatnama was not filed in accordance with Chapter V Rule 1 (i) of the Delhi High Court (Original Side) Rules, 2018, because it did not contain the seal of the party and did not contain the enrolment number of the advocate. It is further submitted that a petition filed without a valid Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 6 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 vakalatnama would be considered a non-est filing. Another technical objection raised by the respondent no.1 is that the petitioners did not incorporate a „verification‟ clause after the prayer in the original petition. 10. It is thus contended on behalf of the respondent no.1 that there is no sufficient cause for condonation of delay in filing the present petition/s and therefore, the applications seeking condonation of delay should be dismissed. 11. In rejoinder, it is submitted on behalf of the petitioners that the petition as originally filed contained the names of the parties, from which it was clearly discernible who the parties to the present petition are, and was duly signed by the authorised representative of the parties. It is further submitted that the petition as originally filed enclosed an accompanying affidavit, a statement of truth signed by the authorized representatives which was duly notarised and a vakalatnama signed by the duly constituted attorneys of the petitioners. In O.M.P. (COMM) 359/2023, O.M.P. (COMM) 360/2023, O.M.P. (COMM) 364/2023 and O.M.P. (COMM) 366/2023, the petitioners have stated that a copy of the arbitral award was duly filed and have refuted the objection of the respondent no.1 that a redacted copy of the award was filed. 12. It is submitted on behalf of the petitioners that the impugned arbitral award pertains to several agreements between the parties including sanction letters, loan agreements, mortgage deeds, hypothecation deeds, guarantee deeds and pledge agreements. It is further submitted that owing to voluminous record and the different connotations/references in respect of each of the said agreements, considerable time was spent in verifying the facts pertaining to each of the agreements. It is further submitted that the Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 7 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 delay on the part of the petitioners was neither wilful nor intentional; and that if the delay is not condoned, the petitioners would face a huge financial liability and would be left without any remedy. 13. In I.A. 17604/2023, the petitioners have sought condonation of delay in re-filing under Chapter IV Rule 3 (c) of the Delhi High Court (Original Side) Rules, 2018 (hereinafter referred to as the "2018 Rules") on the ground that after filing of the petition on 27.06.2023, the Registry marked objections on 01.07.2023, after which the rectified petition was re-filed on 28.07.2023. It is submitted that the petitioners re-filed the petition within 30 days of receiving the said objections. Thereafter, multiple defects were pointed out by the Registry on 28.07.2023, which are stated to have been removed on 29.07.2023. Thereafter, further defects were pointed out by the Registry on 01.08.2023, which were removed on 03.08.2023. More defects were pointed out by the Registry on 03.08.2023, whereby the petitioners were directed to file an application seeking condonation of delay in filing / re-filing alongwith an affidavit. It is submitted that finally, all the defects as pointed out by the Registry were rectified and the petition was re-filed alongwith the application for condonation of delay on 04.08.2023. 14. The petitioners have relied upon the 2018 Rules. It is their submission that the 2018 Rules shall be applicable in the present case, as has been held by a Division Bench of this court in Madhyam Agrivet Industries Limited Formerly Known as Prabhat Dairy Limited v. Snup Fresh Milk and Dairy Products Pvt Ltd.1. It is submitted that as per Rule 3 (c) of Chapter IV of the 2018 Rules, if on scrutiny, a pleading is found to be defective, the Deputy Registrar / Assistant Registrar, shall specify the objections and return it for 1 Delhi High Court DB Judgment dated 18.01.2023 in FAO (OS) (COMM) 9/2023 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 8 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. It is further submitted that Rule 3 (c) of Chapter IV of the 2018 Rules provides for condonation of delay in re-filing, according to which the petitioners have duly filed the application seeking condonation of delay in re-filing the present petition. 15. With respect to I.A. 17604/2023, the respondent no.1 has submitted that since the re-filing of the petition has been done beyond the 30-day period stipulated in Rule 5 (3) of Chapter 1 of Volume V of Delhi High Court Rules and Orders, it would be considered as a fresh filing, and therefore, since such fresh filing of the present petition was done beyond the 3 months and 30 days period contemplated in Section 34 (3) of the A&C Act, the delay would be non-condonable. 16. The respondent no.1 has relied upon the Division Bench judgments in Delhi Transco Ltd. & Anr. v. Hythro Engineers Pvt. Ltd.2 and Govt. (NCT of Delhi) v. Y.D. Builders & Hotels Pvt. Ltd.3 wherein Rule 5 (3) of Chapter 1 of Volume V of Delhi High Court Rules and Orders has been applied and it has been held that when a petition is re-filed beyond the aggregate period of 30 days stipulated in the Delhi High Court Rules and Orders, the filing shall be considered as a fresh institution. The respondent no.1 has further relied upon judgments of this Court in ONGC v. Planetcast Technologies Ltd.4, Ircon International Ltd. v. PNC-Jain Construction Co.5, Dy. CE/C/Jalandhar City v. Spaccechem Enterprises6, Union of India v. MPB Construction (P) Ltd.7, Union of India v. Aadhar Stumbh Township8 and 2 2012 SCC OnLine Del 3557 3 2017 SCC OnLine Del 6812 4 2020 SCC OnLine Del 2083 5 2023 SCC OnLine Del 534 6 2023 SCC OnLine Del 978 7 2023 SCC OnLine Del 2556 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 9 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 Omaxe Ltd. v. Joginder Singh Nijjar9, whereby this court has, inter alia, relied upon the judgment in Y.D. Builders (supra) and has applied the „Delhi High Court Rules and Orders‟. 17. The respondent no.1 has relied upon Rule 5 (3) of Chapter 1 of Volume V of the „Delhi High Court Rules and Orders‟ which stipulates as under: "5. (1) The Deputy Registrar/Assistant Registrar, Incharge of the Filing Counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Assistant Registrar, in charge of the filing Counter under sub-rule (1), it shall be registered and listed before the Court for its dismissal for non-prosecution. (3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Assistant Registrar, in charge of the Filing Counter, under sub-rule (1) it shall be considered as fresh institution. Note - The provisions contained in Rule 5(1), 5(2) and 5(3) shall mutatis mutandis apply to all matters, whether civil or criminal.‖ (Emphasis supplied) 18. The respondent no.1, alongwith its reply to the I.A. 17604/2023, has filed a copy of a document showing the re-filing history of the present petition, which has been extracted below: 8 2023 SCC OnLine Del 2557 9 2023 SCC OnLine Del 4284 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 10 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 19. Vide order dated 06.10.2023 passed in the present petitions, the Registry was directed to furnish a report setting out the date of original filing of O.M.P. (COMM) 359/2023, O.M.P. (COMM) 360/2023, O.M.P. Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 11 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 (COMM) 364/2023 and O.M.P.(COMM) 366/2023 along with a copy thereof, and the objections raised thereon. The Registry duly furnished the report setting out the date of original filing and the objections raised thereon. Analysis and Findings 20. This court has perused the record, alongwith the report furnished by the Registry with respect to O.M.P. (COMM) 359/2023, O.M.P. (COMM) 360/2023, O.M.P. (COMM) 364/2023 and O.M.P. (COMM) 366/2023. 21. In the above conspectus, the following issues arise for consideration: (i) Whether the initial filing made by the petitioners on 28.06.2023 was a non-est filing? (ii) Assuming that the filing done on 28.06.2023 was not a non-est filing, whether the delay in re-filing thereafter, is liable to be condoned? The condonation of this delay has been sought vide IA No.17604/2023. (iii) Whether the delay in filing the petition beyond the period of three months specified in Section 34(3), but within the additional period of 30 days as contemplated under proviso to Section 34(3) can be condoned? This is the subject matter of I.A. No.17601/2023. (i) Whether the initial filing was a non-est filing 22. A perusal of the objections raised by the Registry on the initial filing made on 28.06.2023 reveals that the objections were on the following Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 12 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 counts: 23. Recently, in Ambrosia Corner House Private Limited v. Hangro S Foods10, this Court while relying upon the judgments passed by this Court in Oriental Insurance Co Ltd. v. Air India Ltd.11and Oil and Natural Gas Corporation Ltd. v. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE) & M/s Megha Engineering & Infrastructure Limited (MEIL)12 held that a more liberal approach is to be adopted by the Court while considering whether a filing is to be treated as „non-est'. It was inter alia observed as under: ―18. From the above judgments, it is clear that a more liberal approach is to be adopted by the Court while considering whether the filing should be treated as ‗non-est'. In Oriental Insurance Co. Ltd. (Supra), it has been held that a filing can be considered as ‗non-est' if it is filed without signatures of either the party or its authorized or appointed counsel. Though in Oil and Natural Gas Corporation Ltd. (Supra), it has further 10 2023 SCC OnLine Del 517 11 2021/DHC/3840-DB 12 2023/DHC/135 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 13 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 been held that the filing may be considered as ‗non-est' where the application as filed is intelligible or is not accompanied with a copy of the Impugned Award or does not set out the material particulars, including the names of the parties and the grounds for impugning the Award, it has been clarified that the Court must assess the facts of each case while determining the issue of the filing being considered as ‗non- est'.‖ 24. In Oriental Insurance (supra), the Division Bench of this court inter alia held as under: ―10. Pertinently, under the relevant High Court Rules, there is no clear and definite guideline to show as to when a petition -when originally filed, would be considered as non-est, or otherwise. The nature of defects - which would render an initial filing as non-est, is not clearly set out. Therefore, it would not be fair to a party - who files a petition before a Court, to be told that his initial filing was non-est due to certain defects. That declaration or pronouncement by the Court - in each case, would be subjective and ad-hoc. 11. In our view, a filing can be considered as non-est, if it is filed without any signatures of either the party or its authorised and appointed counsel. Therefore, if a petition - as originally filed, bears the signatures of the party, or its authorised representative, in our view, it cannot be said that the same is non-est. So also, if it is signed by the counsel, and the Vakalatnama appointing the counsel, duly signed by both - the party and the counsel, is filed at the initial stage, the filing cannot be said to be non-est. This is because the ownership of the document/ petition filed is fixed. Also, the factum of filing the document/petition by the party or on its behalf becomes a matter of record. 12. The right to prefer objections to assail the arbitral award under Section 34 of the Arbitration and Conciliation Act is a valuable right. It is the only limited right that a party aggrieved of an arbitral award, has. The said right, in our view, cannot be denied unless the party concerned has clearly failed to file the objection petition within the strict period of limitation prescribed under the Act. The objections to the arbitral award - under Section 34 of the Act, should necessarily be filed within three months, or within 30 days thereafter with justification i.e. sufficient cause, for such delay. No doubt, if they are filed even beyond that period, they cannot be entertained under any circumstance. However, when the objections are initially filed within the period of 3 months plus 30 days, the approach of the Court while dealing with an application to seek condonation of delay cannot be too tight fisted. If the party concerned inhibits careless attitude even after the first filing and causes delay which is disproportionately large to the period of limitation prescribed under Section 34 of the Act, the delay in filing and refiling may be fatal. (See: Executive Engineer v Shree Ram Construction Co., (2010) 120 DRJ 615 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 14 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 (DB) and Delhi Transco Ltd. &Anr. vs Hythro Engineers Pvt. Ltd., 2012 SCC OnLine Del 3557). However, where they party - after the initial delay in filing (which is within the 30 days period of the expiry of the 3 month period of limitation), exhibits a sense of urgency in refiling(s), then a more favourable view should be taken by the Court to condone the delay. In such cases, it is always possible to put such a party to terms.‖ 25. In Oil and Natural Gas Corporation (supra), another Division bench of this court inter alia held as under: ―31. We are unable to concur with the view that the minimum threshold requirement for an application to be considered as an application under Section 34 of the A&C Act is that, each page of the application should be signed by the party, as well as the advocate; the vakalatnama should be signed by the party and the advocate; and it must be accompanied by a statement of truth. And, in the absence of any of these requirements, the filing must be considered as non est. It is essential to understand that for an application to be considered as non est, the Court must come to the conclusion that it cannot be considered as an application for setting aside the arbitral award. 32. It is material to note that Section 34 of the A&C Act does not specify any particular procedure for filing an application to set aside the arbitral award. However, it does set out the grounds on which such an application can be made. Thus, the first and foremost requirement for an application under Section 34 of the A&C Act is that it should set out the grounds on which the applicant seeks setting aside of the arbitral award. It is also necessary that the application be accompanied by a copy of the award as without a copy of the award, which is challenged, it would be impossible to appreciate the grounds to set aside the award. In addition to the above, the application must state the name of the parties and the bare facts in the context of which the applicants seek setting aside of the arbitral award. 33. It is also necessary that the application be signed by the party or its authorised representative. The affixing of signatures signify that the applicant is making the application. In the absence of such signatures, it would be difficult to accept that the application is moved by the applicant. 34. In addition to the above, other material requirements are such as, the application is to be supported by an affidavit and a statement of truth by virtue of Order XI, Section 1 of the Commercial Courts Act, 2015. It is also necessary that the filing be accompanied by a duly executed vakalatnama. This would be necessary for an advocate to move the application before the court. Although these requirements are material and necessary, we are unable to accept that in absence of these requirements, the application is required to be treated as non est. The Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 15 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 application to set aside an award does not cease to be an application merely because the applicant has not complied with certain procedural requirements. 35. It is well settled that filing an affidavit in support of an application is a procedural requirement. The statement of truth by way of an affidavit is also a procedural matter. As stated above, it would be necessary to comply with these procedural requirements. Failure to do so would render an application under Section 34 of the A&C Act to be defective but it would not render it non est. xxx xxx xxx 41. 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.‖ 26. In Durga Construction Co. (supra), a Division Bench of this Court has observed that in certain cases where a petition or a replication filed by a party is so hopelessly inadequate and insufficient or contains defects which are fundamental to the institution of the proceedings, then in such cases, the filing done by a party would be considered non-est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured would have to be considered as the date of initial filing. 27. In the present case, it cannot be said that the initial filing made by the petitioners was an unintelligible bunch of papers or that it was lacking in material respects so as to be treated as a non-est filing. 28. A perusal of the objections raised by the Registry does not indicate that the copy of the award was not filed/redacted copy of the award was filed, or that the petition as originally filed was not accompanied by an affidavit, signatures of the parties or vakalatnama. Further, with respect to Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 16 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 the averment of the respondents that there was no vakalatnama accompanying the original petition, the filing history as filed on behalf of the respondents also does not indicate that there was no vakalatnama filed alongwith the petition. Further, in Para 21 of the reply to I.A. 17601/2023, it has been averred that the vakalatnama on the original filing is different from the vakalatnama in the re-filed version, which confirms that there was infact a vakalatnama filed with the petition as originally filed. 29. Even if the vakalatnama was initially filed with some defects, a filing of a fresh vakalatnama cannot be treated as a deficiency of a threshold which could lead to dismissal of the petition as non-est, as held by this Court in Sharma Kalypso Pvt. Ltd. v. Engineers India Limited.13 30. In the report furnished by the Registry in O.M.P. (COMM) 364/2023 and O.M.P. (COMM) 366/2023, the Registry has marked objections on 03.07.2023, inter alia, stating that "Vakalatnama be filed / dated and signed by the counsel and all the petitioners". This objection was cleared by the petitioners and the said petitions were re-filed on 02.09.2023 and 01.08.2023 respectively. However, the said petitions were duly signed on all pages and verified by the authorised representatives of the petitioners and were also accompanied by affidavits and statements of truth. The said petitions also contained a copy of the impugned award/s and the relevant documents. Therefore, as per the judgment of this court in Oil and Natural Gas Corporation (supra), since the application under Section 34 was signed on all pages and was accompanied by a statement of truth and affidavits and was intelligible, the non-filing / defective filing of the vakalatnama is only a 13 2020 SCC OnLine Del 2408 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 17 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 procedural defect which was subsequently cured and although rendered the filing as defective, did not render the filing as non-est. 31. Upon perusal of the report furnished by the Registry and the details of re-filing, and in the facts and circumstances of the present case, this court finds no merit in the contention of the respondents that initial filing made by the petitioners on 28.06.2023 was a non-est filing. As held in Ambrosia Corner House Private Limited (supra), a more liberal approach is to be adopted by the Court while considering whether the filing under Section 34 (3) of the A&C Act should be treated as non-est. Therefore, with respect to issue (i) enumerated above, it is held that the original filing done on 28.06.2023 was not a non-est filing. (ii) Whether the delay in re-filing is liable to be condoned 32. The next issue that arises for consideration is whether the delay in re- filing is liable to be condoned in the present case. 33. In O.M.P. (COMM) 359/2023, the report furnished by the Registry suggests that the objections with respect to the said petition were first marked on 01.07.2023. The 30 day aggregate period for re-filing prescribed in the 2018 Rules would therefore end on 31.07.2023. Various defects were notified by the Registry from time to time and the petition was finally re- filed after removing objections on 11.09.2023. 34. A Division Bench of this Court in Delhi Development Authority (supra) has held that the delay in re-filing is necessarily required to be assessed and viewed differently vis-à-vis cases of delay in filing inasmuch as in such cases, the party has already evinced its intention to take recourse to remedies available in Courts and has also taken steps in this regard. 35. Again, in Delhi Development Authority (supra), the Division Bench Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 18 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 of this Court held that filing of an application and re-filing the same after removing defects stand on completely different footings as far as the provisions of limitation are concerned. 36. In Ambrosia Corner House Private Limited (supra), relying upon a judgment of the Division Bench of this Court in Oriental Insurance Company Limited (supra), it has been held that the right to prefer objections to assail an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996, though extremely limited, is a valuable right and the same cannot be denied unless the party concerned has clearly failed to file the objection petition within the strict period of limitation prescribed under the Act. The said judgment also emphasizes the necessity of viewing delays in re-filing liberally vis-à-vis the strict approach i.e., mandated under Section 34(3) of the A&C Act. 37. There is a controversy between the parties as to which Rules shall be applicable in deciding if the delay in re-filing can be condoned, i.e., Delhi High Court Rules and Orders or the Delhi High Court (Original Side) Rules, 2018. 38. The contention of the respondent no.1 is that on an application under Rule 5, Chapter I, Volume 5 (hereinafter referred to as "Rule 5") of the Delhi High Court Rules and Orders, any re-filing beyond an aggregate period of 30 days from the initial filing, has to be construed as a fresh institution. 39. Resultantly, it is submitted that since Section 34(3) of the A&C Act affords a maximum period of 03 months plus 30 days for filing the petition, and since Rule 5 affords a maximum aggregate period of 30 days in re- filing, the total time limit for assailing an arbitral award is 150 days from the Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 19 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 date of the award. According to the respondent no.1, the breakup of 150 days is as follows:- 3 months (under Section 34(1) of the Arbitration Act) + 30 days (under Section 34(3) of the Arbitration Act) +30 days (re-filing). 40. On behalf of the respondent no.1, reliance has been placed on Delhi Transco Ltd. &Anr. v. Hythro Engineers Pvt. Ltd.14, Govt. (NCT of Delhi) v. Y.D. Builders & Hotels Pvt. Ltd. to contend that Rule 5 of Delhi High Court Rules and Orders is applicable to filings made under Section 34 of the A&C Act and therefore, any filing beyond the maximum period contemplated under the said Rule 5 has to be construed as a fresh filing and not a re-filing, therefore it would be impermissible to condone such delay. 41. Reliance has also been placed on the judgments of a co-ordinate bench of this Court in ONGC v. Planetcast Technologies Ltd.15, Ircon International Ltd. v. PNC-Jain Construction Co.16, Dy. CE/C/Jalandhar City v. Spaccechem Enterprises17, Union of India v. MPB Construction (P) Ltd.18, Union of India v. Aadhar Stumbh Township19 and Omaxe Ltd. v. Joginder Singh Nijjar20 which follow dicta laid down in Y. D. Builders (supra). 42. The judgments in Delhi Transco (supra) and Y. D. Builders (supra) were rendered prior to the promulgation of the 2018 Rules. Chapter IV Rule 3 of the said 2018 Rules reads as under: ―[3. Defective pleading/ document.- (a) Upon scrutiny, if any 14 2012 SCC OnLine Del 3557 15 2020 SCC OnLine Del 2083 16 2023 SCC OnLine Del 534 17 2023 SCC OnLine Del 978 18 2023 SCC OnLine Del 2556 19 2023 SCC OnLine Del 2557 20 2023 SCC OnLine Del 4284 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 20 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 pleading(s)/document(s) are found defective, the Deputy Registrar/ Assistant Registrar, Incharge of the Filing Counter, shall specify the objection(s), a copy of which will be kept for Court Record, and return for removal of objection(s) and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. On every re-filing caveat clearance shall be taken. In addition, the party must again serve the corrected copy upon the caveator(s) who had a valid caveat at the time of the first filing. (b) If the pleading(s)/document(s) are not taken back for removal of objection(s) within 30 days time allowed under sub-Rule (a), it shall be listed before the Court for appropriate orders. The 30 days' period for the purpose of (a) and (b) above, shall commence from the date when the Registry raises the objections on the pleading/document filed. (c) If the pleading(s)/ document(s) are filed beyond the time allowed under sub-Rule (a) it shall be accompanied with an application for condonation of delay in re-filing.]‖ 43. It can be seen that in contradistinction to Rule 5, Rule 3 (c) of Chapter IV of the 2018 Rules specifically contemplates that if the pleadings/documents are filed beyond the time contemplated under Rule 3(a) (i.e., beyond the aggregate period of 30 days prescribed thereunder), the same shall be accompanied with an application for condonation of delay in re-filing. Thus, unlike Rule 5 where any filing after an aggregate period of 30 days is reckoned to be a fresh filing, Rule 3(c) of the 2018 Rules contemplates condonation of delay even if the re-filing is made after the aggregate period of 30 days, subject to an application for condonation of delay being filed. 44. At this stage, it is relevant to refer to Section 7 of the Delhi High Court Act, 1966 which is in the following terms :- ―7. Practice and procedure in the High Court of Delhi.--Subject to the provisions of this Act, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, with the necessary modifications, apply in relation to the High Court of Delhi and accordingly the High Court of Delhi shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 21 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction: Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi as if made by that High Court.‖ 45. It can be seen that Section 7 specifically confers the power on the High Court of Delhi to "make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction". The proviso to Section 7 essentially provides that till framing of such rules and orders for the purpose of exercise of ordinary original civil jurisdiction, the default position is that the rules in force in the High Court of Punjab shall continue to apply. 46. A reading of Section 7 leaves no manner of doubt that once the High Court of Delhi has framed specific rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction, the same shall occupy the field and are mandatorily required to be applied. The 2018 Rules have themselves been specifically framed in exercise of power conferred by Section 129 of the Code of Civil Procedure, 1908 and Section 7 of the Delhi High Court Act, 1966, and in supersession of Delhi High Court Original Side Rules, 1967. It is notable that in the Delhi High Court Original Side Rules, 1967, there was no provision pari materia to Rule 3(c) and it is obviously for this reason, that Rule 5 of Delhi High Court Rules and Orders was held to be applicable in Y. D. Builders (supra) and Delhi Transco (supra) for the purpose of adjudging whether the delay of re-filing, beyond an aggregate period of 30 days from the date of the original filing was condonable or not. Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 22 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 47. Unlike under Rule 5 of the Delhi High Court Rules and Orders, Rule 3 (c) of the 2018 Rules does not contemplate an outer limit for the purpose of re-filing. As per the 2018 Rules, as such, it is possible to seek condonation of delay in this regard if the same is justified in the facts and circumstances of a particular case. 48. The applicability of Rule 3 (c) of the 2018 Rules as opposed to the applicability of Rule 5 of the Delhi High Court Rules and Orders has been put beyond the pale of doubt by virtue of a judgment of a Division Bench of this Court in Madhyam Agrivet (supra) rendered on 18.01.2023, wherein, it has been, inter alia, held as under :- "18. Insofar as the reference made by the learned Single Judge to the judgment in the case of Government of NCT of Delhi vs. Y.D Builders & Hotels Pvt. Ltd., 2017 SCC OnLine Del 6812 is concerned, we find that in that case, the Division Bench had referred to Rule 5 of the Delhi High Court Rules to hold that the re-filing therein was to be considered as a fresh institution. The said judgment was rendered in the year 2017. Subsequent thereto, Delhi High Court (Original Side) Rules, 2018 (hereinafter ‗Rules of 2018') have been notified which are applicable to petitions filed under the Act of 1996. Chapter IV Rule 3 thereof stipulates as under:- ―(a) If on scrutiny, the pleading/ document is found defective, the Deputy Registrar/ Assistant Registrar, Incharge of the Filing Counter, shall specify the objections, a copy of which will be kept for the Court Record, and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate (b) If the pleading/ document is not taken back for amendment within the time allowed under sub-rule (a), it shall be registered and listed before the Court for its dismissal for nonprosecution. (c) If the pleading/ document is filed beyond the time allowed under sub rule (a) the pleading/ document must be accompanied with an application for condonation of delay in re-filing of the said pleading/ document. (d) Any party aggrieved by any order made by the Registrar under this Rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers.‖ 19. The Rules of 2018 do not contemplate that if a pleading / document is filed after the aggregate of 30 days then it shall be treated as a fresh filing. It was by relying on the Delhi High Court Rules, the Division Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 23 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 Bench in Govt. of NCT of Delhi (supra) has held that any filing beyond a period of 30 days, shall be treated as fresh filing. But such a stipulation is not to be found in the Rules of 2018. Rather Chapter IV Rule 3 contemplates, after a period of 30 days, if the objections are not taken back by the party, then the case shall be placed before the Court for orders. As such, the judgment in the case of Govt. of NCT of Delhi (supra) is clearly distinguishable on facts....." 49. As such, in the light of the change brought about by virtue of Chapter IV of the 2018 Rules, the judgment in Y. D. Builders (supra) and Delhi Transco (supra) would no longer hold the field. None of the judgments relied upon by the respondents take note of the judgment of the Division Bench in Madhyam Agrivet (supra). The judgment rendered in the case of Omaxe Ltd. (supra) rendered by a Co-ordinate Bench of this Court takes note of Chapter IV, Rule 3 of the Delhi High Court Original Side Rules, 2018, however, it does not take note of the judgment of the Division Bench in Madhyam Agrivet (supra). 50. Also, eventually, in Omaxe Ltd. (supra), it was in the light of the facts and circumstances of those cases that the Court was disinclined to condone the delay in re-filing. 51. The attempt on the part of the respondents to distinguish the judgment in the case of Madhyam Agrivet (supra) on the ground that the re-filing was done within the outer limit of 150 days, has no bearing on the issue at hand i.e., whether any delay in refiling beyond an aggregate period of 30 days can be condoned or not. The said issue stands categorically answered by the Division Bench of this court in Madhyam Agrivet (supra) and by virtue of Chapter IV Rule 3 (c) of the Delhi High Court (Original Side) Rules, 2018. 52. It is also noteworthy that in Northern Railway v. Pioneer Publicity Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 24 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 Corporation Private Limited21 which was an appeal before the Supreme Court against an order of this court whereby this court had refused to condone the delay of 65 days in re-filing, the Supreme Court rejected the interpretation of Rule 5 (3) of the Delhi High Court Rules and Orders that any filing beyond the time granted by the Deputy Registrar shall be considered as a fresh filing and inter alia held as under: ―4. We find that said Section 34(3) has no application in re-filing the petition but only applies to the initial filing of the objections under Section 34 of the Act. It was submitted on behalf of the respondent that Rule 5(3) of the Delhi High Court Rules states that if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to re-filing. 5. We are not inclined to accept this contention, particularly since the petitioner has offered an explanation for the delay for the period after the extensions.‖ 53. In view of all the above-mentioned judgments, and in view of the averments made in the application, I find that there is adequate justification to condone the delay in re-filing. Considering the earlier finding of this court that the original filing on 28.06.2023 was not a non-est filing or a mere bunch of papers, the delay in re-filing must be viewed liberally as held by this Court in Ambrosia Corner House Private Limited (supra). Consequently the I.A. No. 17604/2023 in O.M.P. (COMM) 359/2023 is allowed. (iii) Whether the original filing is barred by limitation 54. As regards issue (iii), i.e., whether the original filing made on 28.06.2023 is barred by limitation or not, it is relevant to note that the award 21 (2017) 11 SCC 234 Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 25 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 in this case was rendered on 28.02.2023. The three-month period prescribed under Section 34 of the A&C Act would be calculated from 01.03.2023 and would expire on 31.05.2023. Accordingly, 30 days from 31.05.2023 would expire on 30.06.2023. The petition being filed on 28.06.2023, would therefore fall within the extended 30 day period prescribed in Section 34 (3) of the A&C Act. 55. Further, in the Notification No. 48/Estt/EI/DHC dated 17.05.2023, it has been clearly mentioned as under: ―5. Limitation will not run during the vacation period for purposes of institution of Civil and Criminal cases.‖ 56. The said Notification dated 17.05.2023 also observes that this court was shut for summer vacation from 03.06.2023 till 30.06.2023 and that for the purpose of limitation, this court re-opened on 01.07.2023. The said Notification dated 17.05.2023, read with Section 4 of the Limitation Act, 1963 clearly leads to the conclusion that the present petition was filed within the period of 3 months and 30 days as contemplated in Section 34 (3) of the A&C Act. 57. In view of the finding of this Court that the original filing of the present petitions on 27.06.2023 / 28.06.2023 was not a non-est filing and given the fact that the period from 03.06.2023 till 30.06.2023 was exempted for the purpose of limitation, the delay sought to be condoned is reasonable and not excessive. Moreover, the petitioners are justified in contending that the record of the present petitions is voluminous since 11 interconnected awards forming the subject matter of the present petitions are being challenged by the same petitioners simultaneously. Accordingly, the delay in filing the present petitions stands condoned and therefore, I.A. 17601/2023 in O.M.P. (COMM) 359/2023 also stands allowed. Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 26 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16 58. IA No.14573/2023 & IA No.14576/2023 in O.M.P (COMM) 295/2023, IA No. 14578/2023 & IA No.14581/2023 in O.M.P (COMM) 296/2023, IA No.17606/2023 & IA No.17609/2023 in O.M.P (COMM) 360/2023, IA No.17611/2023 & IA No.17614/2023 in O.M.P (COMM) 361/2023, IA No.17616/2023 & IA No.17619/2023 in O.M.P (COMM) 362/2023, IA No.17643/2023 & IA No.17646/2023 in O.M.P (COMM) 363/2023, IA No.17656/2023 & IA No.17659/2023 in O.M.P (COMM) 364/2023, IA No.17661/2023 & IA No.17664/2023 in O.M.P (COMM) 365/2023, IA No.17715/2023 & IA No.17718/2023 in O.M.P (COMM) 366/2023, IA No.17942/2023 & IA No.17945/2023 in O.M.P (COMM) 375/2023, also stand allowed for the same reasons, as enumerated hereinabove. SACHIN DATTA, J DECEMBER 12, 2023 rp/dk Signature Not Verified Digitally Signed O.M.P. (COMM) 295/2023 & Connected Matters Page 27 of 27 By:KAMLA RAWAT Signing Date:12.12.2023 20:20:16