Petition U/S 34 A&C Act Filed With Deficit Court Fee Is Non-Est Unless Paid Within Limitation Period: Madras High Court

Justice N. Anand Venkatesh held that "filing of a petition with deficit Court fee cannot be construed as proper presentation of the petition. If such presentation of the petition has to be regularized, the deficit Court fee must be paid within the limitation period prescribed under Section 34(3) of A and C Act. If the same is not done, the Court is divested of its power to condone the delay in the light of mandate prescribed under Section 34(3) of A and C Act.”

Background:

Two connected applications were filed seeking condonation of 690 days delay in re-presenting the papers in the petition under section 34 of the Arbitration Act and paying the deficit court fee. The petition had sought to set aside an award passed by the arbitrator arising out of a dispute between the parties relating to quarrying and supply contracts.

The petitioners submitted that they had filed the petition under section 34 on time but due to counsel's negligence they could not deposit the required court fee and enclose the original arbitral award. The papers were represented after nearly two years with proper court fee and award attached.

The petitioner submitted that the initial filing, though defective, stopped the limitation clock under section 34(3) of the Act. The defects were later rectified by re-presentation with proper court fee and documents in 2025. It was further argued that the delay re-presentation does not attract section 34(3) of the Act. It was further contended that filing of a copy of the award should be treated as substantial compliance as the original award was produced at the time of representation. Lastly, it was submitted that deficiency in court fee or minor defects in the documents should not render the petition non-est when bona fide reasons exist and the parties were victims of advocate's misconduct.

Per contra, the Respondents submitted that effective filing occurred 14 months after the limitation period which made the petition non-est. Relying on Pragati Construction, it was argued that filing of a petition without award makes the petition non-est and invalid in law. Lastly, it was submitted that delay in paying deficit court fee cannot be excused.

Findings:

Referring to the Delhi High Court's judgment in Delhi Urban Shelter Improvement Board, the court held that filing of a copy of the award along with the petition was sufficient.It distinguished Pragati Construction from the facts of the present case. In Pragati Construction, the court was dealing with a situation where neither copy nor original award had been filed but in the present case a copy of the award was filed.

It held that “the Full Bench dealt with a case where no award was filed at all. Here, a copy of the award seems to have been filed. The Delhi Division Bench in Delhi Urban Shelter Improvement Board has clarified that if an authentic copy of the award is filed, the absence of a handwritten signature would not render the filing improper.”

Based on the above, the court held that initial filing could not be invalidated solely on the ground that a copy of the award was filed along with the petition provided it was authentic.

The court held that “It is nobody's case that the copy of the award that was originally filed is not in line with the original award which was later filed at the time of representation. Hence, it cannot be held that the original filing of the petition along with the copy of the award on 24.07.2023 is improper filing”.

On deficit of court's fee, the court after copiously referring to multiple judgments held that filing of a petition with deficit court fee does not amount to proper presentation. If the entire court fee is not deposited within the limitation period under section 34(3), the court is divested of its power to condone the delay.

It held that "filing of a petition with deficit Court fee cannot be construed as proper presentation of the petition. If such presentation of the petition has to be regularized, the deficit Court fee must be paid within the limitation period prescribed under Section 34(3) of A and C Act. If the same is not done, the Court is divested of its power to condone the delay in the light of mandate prescribed under Section 34(3) of A and C Act.”

The court further held that section 34(3) does not apply to re-filing and therefore payment of deficit court fee after expiry of the limitation period amounts to fresh filing under section 34 of the Act.

The court expressed disapproval of the misconduct of the advocate who had taken full professional fee from the clients but filed the petition with a stamp duty of only ₹10.

It held that “It is an unfortunate case where the applicants' erstwhile counsel betrayed their trust, resulting in the loss of their valuable right to challenge the award. The applicants are at liberty to initiate professional misconduct proceedings before the Bar Council.”

However, the court observed that the sympathy or counsel's misconduct cannot enlarge the statutory limitation period as the court is bound by the time prescribed under section 34(3).

Accordingly, the court dismissed both the applications holding that improper presentation with deficit court fee does not arrest limitation period. It further held that the delay in paying the deficit court fee cannot be condoned.

Case Title: M. Gajendran & Anr. v. R. Munirathinam & Ors.

Citation: 2025 LiveLaw (Mad) 386

Case Number: Appln.Nos.4872 and 4874 of 2025 in Arb.O.P.(Com.Div.)SR.No.95844 of 2023 and Arb.O.P.(Com.Div.)SR.No.95844 of 2023

Judgment Date: 23/10/2025

For Applicants / Petitioners : Mr.Gopalakrishnan T.C

For Respondents: Mr.D.Shivakumaran

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