[Arbitration] Initial Filing Without Essential Documents Non Est In Law, Limitation Can't Be Circumvented By Curing Defects: Delhi High Court

It further held that a significant delay in curing the defects cannot be condoned if the subsequent, complete filing occurs after the expiry of the limitation period, as such curing does not retrospectively validate the original defective filing.

Brief Facts:

The dispute arises from a contract between the Union of India (through the Joint Secretary, DPA-3, Ministry of External Affairs) and the respondent, a joint venture of M/s GR-Gawar, for upgrading roads in Nepal's Terai region (Phase-I, Contract Package-01). Following disagreements, an Arbitral Tribunal issued an award on 03.01.2024, later modified by a corrigendum dated 02.03.2024.

The above award was challenged under section 34 of the Arbitration Act. Preliminary objections as to the maintainability of the application were raised by the Respondent.

Contentions:

The Respondent submitted that though the applicant purportedly filed the application on 20.06.2024, such filing was deficient, inter alia, due to the non-filing of the impugned award itself, rendering it non est in the eyes of law. Reliance was placed on the judgment of the Delhi High Court in Pragati Construction Consultants v. Union of India to contend that the failure to attach the impugned award would render the Section 34 application filing as non-est.

Per contra, the Applicant submitted that the application, having been filed on 20.06.2024, suffered with a delay of only 18 days beyond the prescribed limitation period of 90 days, which expired on 02.06.2024.Such delay, being within the additional permissible period of 30 days contemplated under the proviso of Section 34(3) of the Act, is condonable on account of bona fide and exceptional circumstances causing the delay.

Observations:

The court at the outset noted that the final filing dated 20.01.2025 spans 6,677 pages, in stark contrast to the initial 146-page filing. This significant disparity clearly indicates that the initial filing was a mere formality, intended only to halt the limitation period.

It further added that the skeletal nature of the original filing, lacking essential pleadings and annexures, reflects an attempt to bypass the limitation law. Such a filing cannot be regarded as a bona fide institution of proceedings under Section 34 of the Arbitration Act.

The Delhi High Court in Oil and Natural Gas Corporation Ltd. held that in certain cases, individual defects in a filing may not render it non est, but when viewed cumulatively, they may justify such a conclusion. To determine if a filing is non est, the court must assess whether it is intelligible, duly authorised, accompanied by the arbitral award, and contains material particulars such as party names and grounds for challenge.

The court in the above case further held that a party seeking condonation must provide a day-to-day explanation for the delay, especially within the three-month limitation period under Section 34 of the Arbitration Act.

Similarly, the full bench of the Delhi High Court in Pragati Construction Consultants held that the filing of the impugned arbitral award along with an application under Section 34 of the Arbitration Act is not merely a procedural formality but constitutes an essential and mandatory prerequisite.

The court noted that the Supreme Court in Sunny Abraham v. Union of India, while explaining the concept of "non est," held that it refers to something that has no legal existence due to a fundamental defect in the process of its creation. Such a defect goes beyond a mere procedural irregularity and renders the instrument void ab initio. Consequently, no subsequent corrective action can validate or retrospectively revive it, and any acts based on such an instrument cannot confer legitimacy upon it.

The Apex Court held as under: “therefore, filing of the Arbitral Award under challenge along with the application under Section 34 of the A&C Act is not a mere procedural formality, but an essential requirement. Non-filing of the same would, therefore, make the application “non est” in the eyes of the law.”

Having discussed the law on the issue, the court held that a liberal approach must guide the assessment of whether a filing is non est. Minor procedural defects—like missing signatures, affidavit inadequacies, or other curable lapses—alone do not invalidate a filing.

It further held that however, when such defects cumulatively suggest that the filing was made merely to halt the limitation clock, without genuine intent to pursue the matter diligently, the Court is justified, based on a fact-specific analysis, in treating the filing as non est.

Based on the above, the court held that the initial filing on 20.06.2024, which admittedly lacked the copy of the arbitral award, must be treated as non est in law. The eventual filing of the copy of the award between 17.01.2025 and 20.01.2025, being significantly beyond the outer limit of 120 days, cannot retrospectively validate the originally defective application.

It further opined that Rule 5 the Delhi High Court Rules authorizes the Deputy or Assistant Registrar at the Filing Counter to raise objections and return the memorandum of appeal or petition for amendment and re-filing, allowing seven days at a time and thirty days in total for rectification.

It further said that if defects are not corrected within this period, the document may be dismissed for non-prosecution or treated as a fresh institution. In Delhi Transco Ltd. v. Hythro Engineers Pvt. Ltd., it was held that re-filing beyond thirty days constitutes a fresh institution under Rule 5(3).

The court further held that the application was filed on 20.06.2024, and objections were first raised on 29.06.2024. Assuming the 30-day period started on 29.06.2024, the application should have been listed before the Court by 29.07.2024, even with uncured defects, for appropriate orders. This procedure was not followed. The Registry is directed to strictly adhere to the prescribed rules and procedures.

The court concluded that in view of the cumulative defects and the substantial nature of the corrections and additions made post-limitation, this Court is satisfied that the initial filing was merely an attempt to stop the running of limitation and was not a bona fide invocation of Section 34 of the Arbitration Act. Accordingly, the filing must be held to be non est in law.

Accordingly, the present application was dismissed.

Case Title: UNION OF INDIA Versus M/S GR-GAWA R(J.V.)

Citation: 2025 LiveLaw (Del) 565

Case Number: O.M.P. (COMM) 38/2025, I.A. 1632-1633/2025, I.A. 1635/2025 and I.A. 6142/2025

Judgment Date: 24/04/2025

For Applicant: Dr. B. Ramaswamy, CGSC.

For Respondent: Mr.Kapil Arora, Ms.Palak Nagar and Ms.Anmol, Advocates.

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