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2019 SCC OnLine Del 11634

In the High Court of Delhi at New Delhi

(BEFORE JYOTI SINGH, J.)

Oriental Insurance Co. Ltd. … Petitioner;

Versus
Air India Ltd. … Respondent.
O.M.P. (COMM) 400/2019
Decided on September 27, 2019
Advocates who appeared in this case :
Mr. Amit K. Singh, Mr. Apratim Animesh Thakur, Advocates
Mr. Dhanesh Relan, Ms. Gauri Chaturvedi, Advocates
The Judgment of the Court was delivered by
JYOTI SINGH, J. (Oral):—
I.A. No. 13340/2019 (delay 90 days in filing)
1. This is an application filed by the petitioner seeking condonation
of delay of 90 days in filing the petition.
2. The present petition is filed under Section 34(3) of the Arbitration
& Conciliation Act, 1996 (‘Act’) challenging the majority Award dated
09.04.2019.
3. The petitioner has averred in the application that the Majority
Award was passed on 09.04.2019 and received by the petitioner on
11.04.2019. The minority Award was passed on 15.06.2019 and was
received on 20.06.2019. The period of limitation began to run from
20.06.2019 and as such the petition is within time. It is further averred
that even if limitation is counted from 11.04.2019, the petition is still
within a period of 30 days beyond the statutory period of three months
and thus can be condoned. The application filed by the petitioner is a
brief one and is scanned below:—
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4. Learned counsel for the petitioner firstly contends that limitation

would start running from 20.06.2019 when the minority/dissenting
Award was received by the petitioner. Counted from the said date, the
present petition filed on 03.08.2019 is within the statutory period of
three months, as laid down in Section 34(3) of the Act and there is no
delay.
5. Without prejudice to the said contention, it is next contended that
even assuming the limitation was to run from the date of the Majority
Award, the same was received by the petitioner on 11.04.2019 and the
filing is within the 30 days extended period available to the petitioner
by way of proviso to Section 34(3) of the Act. Learned counsel argues
that when the petition under Section 34 of the Act is filed within the
extended period of 30 days, this Court has the discretion to condone
the delay.
6. Learned counsel for the respondent who appears on advance copy
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submits that the petition is barred by limitation. No filing as envisaged

in law was done by the petitioner even within the extended period of 30
days and thus the delay cannot be condoned and the application
deserves to be dismissed. Consequently, the petition also deserves to
be dismissed as delay cannot be condoned.
7. Learned counsel for the respondent points out that although the
petition was initially filed on 03.08.2019, but on checking by the
Registry, several defects were raised and some of them were very vital
such as affidavits and statement of truth not signed and attested;
Award not filed; no documents filed, which would be evident from a
perusal of the scrutiny sheet.
8. Learned counsel further contends that while the petition is filed on
03.08.2019, the Court fees itself has been purchased on 03.09.2019
and thus apparently, the petition was filed without affixing the Court
fees. Learned counsel further points out that the Certificate appended
to the petition as well as the applications and the petition itself are
dated 31.08.2019 and this is clearly evident from the index filed along
with the said pleadings. He contends that above all, even the
Vakalatnama bears the date of 31.08.2019. Learned counsel further
points out that the affidavits filed in support of the applications are
verified and attested on 03.09.2019. The submission therefore is that
what was filed on 03.08.2019 as initial filing was not a proper petition
but only a ‘bunch of 70 pages’ wherein the following documents were
admittedly missing:—
(i) Vakalatnama
(ii) Court fees
(iii) Impugned Award
(iv) Requisite documents
(v) Signed and Attested Statement of Truth
(vi) Affidavits in support of the applications
9. Learned counsel for the petitioner in rejoinder, has sought to
justify the said filing by stating that all the defects were subsequently
cured and the petition was re-filed within a period of 30 days permitted
under Rule 3 of the Delhi High Court Rules. Learned counsel submitted
that the rigors and technicalities of initial filing should not apply to
cases of re-filing.
10. Reliance has been placed on the judgment of the Apex Court in
the case of Northern Railway v. Pioneer Publicity Corporation Private
Limited, (2017) 11 SCC 234.
11. Learned counsel has also placed reliance of the judgment in the
case of Alka Kasana v. Indian Institute of Technology, 2015 SCC OnLine
Del 11455 for the proposition that where the Statute provides a
consequence for its breach, only those consequences can be enforced
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and where the Statute does not envisage any consequence for non-
compliance of its provisions, the petition cannot be dismissed on
account of such non-compliance. Arbitration and Conciliation Act, 1996
does not provide for any consequences of non-filing the above stated
documents at the time of initial filing and this petition cannot be
dismissed on account of their non-filing.
12. I have heard the learned counsels for the parties and examined
their respective contentions.
13. The contention of the petitioner that the limitation for filing a
petition under Section 34 of the Act would run from the date of receipt
of the Minority Award is without any merit. The limitation would
necessarily run from the date the Majority Award is received by the
petitioner. This issue is no longer res integra and has been clearly
settled by the judgment of the Division Bench of this Court in the case
of Government of India Bharat Sanchar Nigam Limited v. Acome, AIR
2009 Del 102, where it was held as under:
“6. On the other hand, the contention of the appellant was that
unless all the arbitrators give their reasoned award it cannot be said
that there is an arbitral award. According to the appellant the
limitation did not begin to run for filing objections to the majority
th
award till the decision of the dissenting arbitrator, dated 18
September, 2002, was received by the appellant, which was received
by the appellant on 24th September, 2002. If limitation is computed
from that date, the petition under Section 34 is well within time.
7. The learned single Judge on exhaustive consideration of the Act
held that the award of a multi-member arbitral tribunal comes into
force on making and publishing of the majority award, provided the
reason for omission of the signature of the minority arbitrator is
contained in the majority award itself. Consequently, the petition
under Section 34 of the Act was dismissed as barred by limitation.”
14. A detailed reasoning by the learned Single Judge in the above
mentioned matter is as under:—
“28. Section 31 (1) of the Act makes it clear, and this is the
common case of both the parties, that the law contemplates the
passing of only one arbitral award. Reading of Section 31(2)
makes it clear that in an arbitral proceedings before a Tribunal
consisting of more than one arbitrator, the award of the Tribunal
would be sufficiently made, if it is signed by the majority of
arbitrators, so long as the reason for the omission to sign by other
arbitrators who are in minority is so stated in the award itself. It
therefore follows, that a document containing the opinion of a
minority of arbitrators cannot be called an award within the
meaning of Section 31 of the Act. Apart from the decisions cited
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by the Respondent, I find that a Division Bench of this Court in

Fertilizer Corporation of India Ltd. v. IDI Management (USA), AIR
1984 Del 333 has held that opinion of a minority of arbitrators
cannot be looked at for any purpose. The award with which the
law is concerned is the award of the majority. Reasons given by
the minority are not reasons of the majority and as such does not
form part of the majority.
xxx xxx xxx
31. Where the Tribunal is a multi member body (it can only be
an odd number under Section 10) and there is unanimous award
by all the membersof the Tribunal, it does not raise any difficulty
of the kind presented in this case. However, there is a possibility
that a majority of the arbitrators agree on a particular form of
award, and a minority does not. In that situation the minority is
not obliged to sign an award prepared by the majority of
arbitrators. It is open to the minority of arbitrators to prepare
their own opinion and communicate it to the parties. This may
happen either before, simultaneously with, or after the award of
the majority is made and communicated to the parties. It is also
open to the minority of arbitrators not to pen down their opinion
at all. Where the minority gives its opinion even before the
majority award is made and communicated, since it is only an
opinion and not an arbitral award, it has no efficacy as an award
and it cannot be enforced. It has no bearing on the rights and
obligations of the parties as determined by the majority of
arbitrators. Consequently, it is incapable of, and not required to
be challenged or objected to as an award under Section 34 of the
Act. Only when the award of the majority of arbitrators is
received, which is the award of the Tribunal, it would give a cause
to the aggrieved party/parties to object to the same. Limitation
would therefore begin to run from the time the majority award is
communicated to the party concerned.
32. In a case where the minority of arbitrators choose not to
give their opinion unless agreed to by the parties, in my view
should not prevent the making of a majority award by the
Tribunal. By preferring not to sign the majority award, or by
failing or refusing to give its opinion altogether, the minority of
arbitrators cannot defeat or frustrate an arbitral proceeding. This
appears to be the reason why the law states that it “shall be
sufficient” for the majority of the Arbitral Tribunal to sign the
award, so long as they disclose the reasons for the omission of
signatures of the minority of arbitrators.
33. Once the award is signed and communicated by the
majority of arbitrators, (since the decision of the panel of
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arbitrators is to be governed by majority under Section 29, unless

otherwise agreed) the parties are put to notice, and are aware of
the determination made by the Arbitral Tribunal. Each party
knows his rights and obligations as crystalised in the award of the
majority and the consequences flowing therefrom. If a party is
aggrieved by the majority award, he can and must challenge the
same within the time provided for the purpose. His grounds of
challenge have to be gathered from the majority award and the
arbitral proceedings. They are not dependent upon the giving of
the minority opinion by the minority of arbitrators. If and when it
is given, such a minority opinion(s) may be used by a party
challenging the award to bolster his challenge. However, the
aggrieved party cannot await the giving of the minority opinion to
challenge the majority award, which binds him and affects his
rights.
34. Consequently, it is immaterial whether the opinion of the
minority of arbitrators, if any, is made available to the parties at
the same time as the award of the majority or not. From the
decisions cited above, it is evident that it has always been the law
that an award which is signed by the majority of arbitrators is a
valid and enforceable award. The contention of the petitioner that
an award, of necessity, has to be signed by all the arbitrators, or
that even if there are two or more opinions, they should all be
expressed in writing and communicated by the arbitrators before
a valid and binding arbitration award comes into being, therefore,
does not appear to be correct and is rejected. This submission is
also not in consonance with Section 31(2) of the Act, which
provides that the signature of the majority of all arbitrators of the
Arbitral Tribunal shall be “sufficient”. The language used by the
legislature in Section 31 of the Act is clear, and on a plain reading
of the section no other reasonable conclusion can be reached. It
may be noted that in spite of the language used by the Parliament
in Section 10 read with Section 14 of the Arbitration Act, 1940,
the Madras High Court in R. Dashratha Rao (supra) took the view
that an award might be pronounced by a majority of arbitrators,
and the failure of the minority to sign the Award does not affect
the validity of the Award. Under the 1996 Act, the Parliament has
made it explicit and clear that it shall be “sufficient” if the award
is signed by the majority of arbitrators and the reasons for the
omission of the minority to sign are stated in the award.
35. In my view the limitation for filing of objections would
begin to run from the date the parties are put to notice of the
majority award. That to my mind is also the purposive
interpretation of the provisions of the Act. The party succeeding
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before the Arbitral Tribunal, in whose favour the award has been
rendered, would be left high and dry if it is taken that the
majority award cannot be challenged or executed unless all the
arbitrators give their respective opinions. Such an interpretation
would have the potential to frustrate the scheme of the Act
whenever there is a multi-member Arbitration Tribunal
constituted. The object of the Act is to provide speedy and
alternative resolution of disputes. This would be defeated if one or
more arbitrators in minority choose to either delay the publication
of their opinion, or choose not to give it at all.”
15. Seen in the light of this settled position of law, the delay would
have to be examined taking 11.04.2019 as the date from which the
limitation would start i.e. when admittedly, the Majority Award was
received by the petitioner. Under Section 34 of the Act, the limitation
period for filing objections against the Award is three months. Proviso
to Section 34(3) of the Act provides an extended period of 30 days
within which the objections can be filed and on a sufficient cause being
shown by the party which prevented it from filing the objections within
a period of 3 months, the Court on being satisfied, can in its discretion
condone the delay. However, in case the delay is even one day more
than the total period of 120 days then the Court has no power to
condone the delay. This law is also now well settled and relevant
portions of some of the judgments on this aspect are being quoted
hereinafter.
16. The Apex Court in the case of Union of India v. Popular
Construction Company, (2001) 8 SCC 470 held as under:
“14. Here the history and scheme of the 1996 Act support the
conclusion that the time-limit prescribed under Section 34 to
challenge an award is absolute and unextendible by court under
Section 5 of the Limitation Act. The Arbitration and Conciliation
Bill, 1995 which preceded the 1996 Act stated as one of its main
objectives the need “to minimize the supervisory role of courts in
the arbitral process”. This objective has found expression in
Section 5 of the Act which prescribes the extent of judicial
intervention in no uncertain terms:
5. Extent of judicial intervention.- Notwithstanding anything
contained in any other law for the time being in force, in matters
governed by this Part, no judicial authority shall intervene except
where so provided in this Part.”
17. The Apex Court in the case of Simplex Infrastructure Ltd. v.
Union of India, (2019) 2 SCC 455 has clearly held as under:
“18. A plain reading of sub-section (3) along with the proviso
to Section 34 of the 1996 Act, shows that the application for
setting aside the award on the grounds mentioned in sub-section
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(2) of Section 34 could be made within three months and the

period can only be extended for a further period of thirty days on
showing sufficient cause and not thereafter. The use of the words
“but not thereafter” in the proviso makes it clear that the
extension cannot be beyond thirty days. Even if the benefit of
Section 14 of the Limitation Act is given to the respondent, there
will still be a delay of 131 days in filing the application. That is
beyond the strict timelines prescribed in sub-section (3) read
along with the proviso to Section 34 of the 1996 Act. The delay of
131 days cannot be condoned. To do so, as the High Court did, is
to breach a clear statutory mandate.”
18. The Apex Court in Bharat Barrel and Drum Mg. Co. Ltd. v. ESI
Corpn., (1971) 2 SCC 860 explained the rationale of prescribing the
period of limitation as under:—
“7. The necessity for enacting period of limitation is to ensure
that actions are commenced within a particular period, firstly to
assure the availability of evidence documentary as well as oral t
enable the defendant to contest the claim against him; secondly
to give effect to the principle that law does not assist a pardon
who is inactive and sleeps over his rights by allowing them when
challenged or disputed to remain dormant without asserting them
in a court of law. The principle which forms the basis of this rule is
expressed in the maximum vigilantibus, non dermientibus, jura
subveniunt (the laws give help to those who are watchful and not
to those who sleep). Therefore the object of the statutes of
limitations is to compel a person to exercise his right of action
within a reasonable time as also to discourage and suppress stale,
fake or fraudulent claims”
19. Thus, what the objector has to show to the Court is that the
petition has been filed within 30 days extended period beyond the
three months statutory limitation as also satisfy the Court that there is
sufficient cause for delay. Tested on this touchstone, no doubt that
even when counted from 11.04.2019, the petition in the present case
was filed within the 30 days extended period. To this aspect, there is no
dispute even by the respondent. Thus, if the petitioner satisfies the
Court that there is sufficient cause for condonation, the Court has the
power to exercise the discretion and condone the delay.
20. The issue in the present case, however, is on a different
pedestal. The question that falls for consideration before this Court is
whether the petition initially filed on 03.08.2019 was a proper petition
in the eyes of law or a ‘non-est filing’.
21. The Registry while entertaining the e-filing maintains a system
of generating scrutiny sheets as well as log information. In addition,
the Registry maintains a list of defects which have certain prescribed
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Codes. When a petition is checked for defects, depending on the

defects that are found, the Code numbers are indicated depicting the
nature of defects. In addition, the details of the defects are also
indicated. From a perusal of the scrutiny sheet/log information, it can
be easily deciphered as to what were the defects raised by the Registry
when the petition was filed or re-filed.
22. A perusal of the log information in the present case indicates
that when the petition was filed on 03.08.2019, several defects were
marked by the Registry while checking on 06.08.2019. These defects
were indicated with details and code numbers were clearly reflected.
Amongst other defects, the main defects that emerged when the
petition was initially filed were as under:
(i) 70 pages filed
(ii) Affidavit and Statement of Truth not signed and attested
(iii) Award not filed
(iv) No documents filed
(v) Vakalatnama not filed
(vi) Court fees missing
(vii) Pecuniary jurisdiction not mentioned
23. Scanned copy of the log-in information is as under:—
24. As rightly pointed out by the learned counsel for the respondent,
the dates appearing on the Court fees, Vakalatnama and Affidavits, are
indicative of the fact that they were not filed on 03.08.2019 along with
the petition. This was the 116th day from the date of start of the
limitation period. Thereafter, the petition was refiled only on
th
31.08.2019, which was far beyond the 120 day, upto which this Court
has the power to condone the delay, on sufficient cause being shown by
the party.
25. Since the petition filed on 03.08.2019 is a non-est petition, it
cannot be argued by the learned counsel for the petitioner that a proper
petition was filed within the extended 30 days available to it under
Section 34(3) of the Act and the delay be condoned.
26. This Court in the case of SKS Power Generation (Chhattisgarh)
Ltd. v. ISC Projects Private Ltd. in OMP (Comm) 132/2019 decided on
03.04.2019, has clearly termed such a petition as nothing more than a
mere ‘Bunch of Papers’, relying on the judgment of a Division Bench of
this Court in Delhi Development Authority v. Durga Constructions Co.,
(2013) 139 DRJ 133 [DB] as affirmed by the Apex Court. Relevant
portion of the judgment of a coordinate Bench of this Court in SKS
Power Generation (supra) is as under:—
“11. I have considered the submissions made by the learned
counsels for the parties. It is not contested by the petitioner that
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the original petition filed on 14.01.2019 contained only 29 pages

with blanks and with no signature of the petitioner or its
authorized representative. There was no vakalatnama filed
authorizing the advocate to file the said bunch of papers. I am
intentionally using the words “bunch of papers” as what was filed
was nothing more than that. The petition sought to impugn the
Arbitral Award and the Additional Award without even annexing
the same. Clearly what was filed was merely a ‘bunch of papers’
to somehow stop the period of limitation from running. The
petitioner thereafter made no endeavour to refile the petition with
expedition once the same had been returned back under objection
on 15.01.2019. The petitioner took another two months to refile
the petition only on 26.03.2019, albeit, still under defects. This
filing was beyond a period of 30 days from three months of
receipt of the Additional Award by the petitioner.
12. In my view, while considering the application seeking
condonation of delay in refilling, the above is a very relevant
criteria and consideration to be kept in mind. As held by this
Court in Durga Construction Co. (supra), where the petitions or
applications filed by a party are so hopelessly inadequate and
insufficient or contain defects which are fundamental to the
institution of the proceedings, then in such cases the filing done
by the party would be considered non est and of no consequence.
This was reiterated by this Court in Sravanthi Infratech Pvt. Ltd.
(supra), where the petition had been filed without documents,
vakalatnama, affidavit or authority.”
27. The judgment of Durga Construction (supra), in my opinion,
completely covers the present case. The relevant paras are quoted as
under:
“17. The cases of delay in re-filing are different from cases of
delay in filing inasmuch as, in such cases the party has already
evinced its intention to take recourse to the remedies available in
courts and has also taken steps in this regard. It cannot be, thus,
assumed that the party has given up his rights to avail legal
remedies. However, in certain cases where the petitions or
applications filed by a party are so hopelessly inadequate and
insufficient or contain defects which are fundamental to the
institution of the proceedings, then in such cases the filing done
by the 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 the initial filing….”
28. Keeping in view the entire conspectus of the law as
aforementioned, the delay in filing the present petition cannot be
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condoned. It may also be highlighted that the petitioner has not even
laboured to explain in its application seeking condonation of delay,
either the chronology or the narrative of the facts and dates of filing
and refiling. No efforts worth mentioning have been made to even set
up a ‘sufficient cause’, if any. The application is completely silent on the
dates when the affidavits and the statement of truth or the
vakalatnama were signed. Even the date of purchasing the Court Fees
has not been mentioned, to say the least.
29. This Court finds no merits in the various contentions raised by
the petitioner. The application is dismissed.
O.M.P. (COMM) 400/2019 with I.A. No. 13338/2019 (Stay) and
I.A. 13341/2019 (delay 18 days in re-filing)
30. Since the application seeking condonation of delay in filing the
petition is dismissed, the present petition is dismissed along with the
above applications.
———
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