2018 (5) TMI 1749 - HC - Indian Laws

Condonation of delay in filing petition - relevant time - the copy of the petition(s) was served on the respondents for the first time on 19.04.2018 - case of respondents is that as the petitions could not be filed without service of a copy thereof on the respondents the date of filing of the present petitions has to be considered as 19.04.2018 - the petitions were filed beyond the period of 30 days after the expiry of three months from the date of the receipt of the Arbitral Award - condonation of such delay - Section 34 (5) of the Arbitration and Conciliation Act 1996. Held that - Section 34 (5) of the Act clearly show that the service of a prior notice on the other party is a mandatory requirement before filing of an application under Section 34 of the Act. Not only is such notice to be given but also the application itself has to be accompanied by an affidavit of the applicant endorsing the compliance of said requirement. This requirement of the service of prior notice therefore cannot be said to be a mere formality or directory in nature. Taking the date of filing as 19.04.2018 the petitions would be beyond the period of 30 days after the expiry of three months from the date of the receipt of the Arbitral Award and this Court would not have the power to condone the delay even if the petitioner is able to make out a sufficient cause for this delay - It was incumbent on the petitioner to have served a copy of the petition(s) on the respondents before filing the present petition. In absence of such prior notice to the respondents the filing itself cannot be considered as valid in law so as to stop the period of limitation. Petition dismissed.

Summary

Issues Involved:
1. Validity of the petitions challenging the Arbitral Award due to non-compliance with Section 34(5) of the Arbitration and Conciliation Act, 1996.
2. Jurisdiction of the Court to condone the delay in filing the petitions under Section 34(3) of the Act.

Issue-wise Detailed Analysis:

1. Validity of the petitions challenging the Arbitral Award due to non-compliance with Section 34(5) of the Arbitration and Conciliation Act, 1996:

The petitions were filed challenging the Arbitral Award dated 10.11.2017. The respondents argued that the petitions were served on them for the first time on 19.04.2018, and thus, the date of filing should be considered as 19.04.2018. Section 34(5) mandates that an application under this section must be filed only after issuing a prior notice to the other party, accompanied by an affidavit endorsing compliance with this requirement. The court emphasized that this requirement is mandatory, not merely a formality, as indicated by the legislative intent to avoid unnecessary delays and ensure expeditious adjudication of objections to arbitral awards. The court cited previous judgments, including those from the Patna and Kerala High Courts, which held that the absence of a prior notice invalidates the filing of the petition under Section 34.

2. Jurisdiction of the Court to condone the delay in filing the petitions under Section 34(3) of the Act:

The court noted that Section 34(3) allows an application to set aside an arbitral award to be filed within three months from the date of receipt of the award, with a possible extension of 30 days for sufficient cause. However, beyond this period, the court has no jurisdiction to condone the delay. In this case, taking the date of filing as 19.04.2018, the petitions were beyond the permissible period, and thus, the court could not condone the delay. The court referenced the Supreme Court's decision in Anil Kumar Jinabhai Patel v. Pravinchandra Jinabhai Patel, which reinforced the mandatory nature of the time limits set out in Section 34(3).

Conclusion:

The petitions were dismissed on the ground of delay, with no order as to costs. The court made it clear that this order did not address the merits of the claims of either party. Additionally, the court advised the Registry to ensure compliance with Section 34(5) by considering the date of filing as the date when the copy of the petition has been served on the other side and thereafter filed or re-filed by the petitioner.