"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, February 13, 2025

Defective Petitions to Challenge Arbitral Awards: Delhi High Court Settles the Law

 There have been numerous judgments on whether particular classes of defects in petitions under Section 34 of the Arbitration and Conciliation Act, 1996 (1996 Act) for challenging arbitral awards make the petitions "non-est" in the eyes of law. Consequence of holding a petition invalid in the eyes of law means that time specified for filing challenge petitions in S. 34 would continue to run, notwithstanding filing of such incurably defective petitions. 

A Full Bench of the Delhi High Court has, on 07.02.2025, settled the law in Pragati Construction Consultants v UoI, 2025:DHC:717-FB. Para 97 of the judgment summarises the decision of the Full Bench on points of law and is quoted below:

"97. We summarise our answer to the Reference, as under:

a) Non-filing of the Arbitral Award alongwith an 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 nonest;

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."   

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