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TMI Blog2018 (5) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Section 34(3) of the Act, 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 and this Court would not have jurisdiction to condone this delay. 3. Learned counsel for the petitioner is not in a position to contest the submission of the respondents that the copy of the petition(s) was served on the respondents for the first time on 19.04.2018. 4. Section 34 (5) of the Act has been introduced into the Act by way of the Arbitration and Conciliation (Amendment) Act, 2015. The same is reproduced herein below: "Section 34(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement." 5. A reading of the above provision would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us problems including those of high costs and delays, making it no better than either the earlier regime which it was intended to replace; or to litigation, to which it intends to provide an alternative. Delays are inherent in the arbitration process, and costs of arbitration can be tremendous. Even though courts play a pivotal role in giving finality to certain issues which arise before, after and even during an arbitration, there exists a serious threat of arbitration related litigation getting caught up in the huge list of pending cases before the courts. After the award, a challenge under section 34 makes the award inexecutable and such petitions remain pending for several years. The object of quick alternative disputes resolution frequently stands frustrated. 4. There is, therefore, an urgent need to revise certain provisions of the Act to deal with these problems that frequently arise in the arbitral process. The purpose of this Chapter is to lay down the foundation for the changes suggested in the report of the Commission. The suggested amendments address a variety of issues that plague the present regime of arbitration in India and, therefore, before setting out the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept in mind, there can be no denial of the conclusion that the condition of issuance of prior notice contained in Section 34(5) of the Act is mandatory in nature. 12. In Bihar Rajya Bhumi Vikas Bank Samiti v. The State of Bihar & Ors., (Judgment dated 28.10.2016 passed in Letters Patent Appeal No. 1841/2016 in Civil Writ Jurisdiction Case No. 746/2016), the Patna High Court has considered Section 34(5) of the Act and has held as under: "82. The right to file an application in Sub-Section (5) of Section 34 of the 1996 Act (since after the 2015 amendment), arises only when a notice has preceded and an affidavit is filed in support of issuance of such notice. The notice ought to have been issued prior to filing of the application and the issuance of notice by the learned District Judge cannot obviate the initial error. The right to proceed with an application, under Section 34 of the 1996 Act, presupposes the sending of a notice under Section 34 of the 1996 Act and, unless the same is issued, there cannot be an inherent right to file the application and, if so filed, to entertain the same by the Court before whom the same has been filed. The present notice, correctly submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validly filed only after the issuance of a prior notice to the other party and has to be accompanied by an affidavit by the applicant endorsing the compliance of the said requirement, the petitions can be deemed to be filed only on 19.04.2018. 15. It is also to be noted that this condition of issuance of prior notice is at the stage of filing of the petition under Section 34 of the Act as distinguished from the date when such application is "entertained" by the Court. The word "entertained" has been used in Section 8(2) of the Act in contra-distinction to word "filed" in Section 34(5) of the Act. The legislature has intentionally drawn this distinction as the word "entertain" has been construed to denote a stage when the Court considers an application and not when such application is filed. (Refer to Ananthesh Bhakta & Ors. v. Nayana S. Bhakta & Ors. AIR 2016 SC 5359). 16. In the case of Lakshmi Rattan Engineering Works Ltd. v. Asstt. Commr. Sales Tax, Kanpur & Anr. the Supreme Court has distinguished between the expressions 'file' and 'entertain' in the following words:- "8. To being with it must be noticed that the proviso merely requires that the appeal shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to s. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words 'accompanied by' showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under O. 41 of the Code of Civil Procedure, the expression "appeal" and "memorandum of appeal" are used to distinct two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as he judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed time, it may entertain the application within a further period of thirty days 'but not thereafter'. (vide State of Arunachal Pradesh v. Damini Construction Co. (2007) 10 SCC 742). The words 'but not thereafter' in the proviso are of mandatory nature, and couched in the negative, and leave no room for doubt. Proviso to Section 34 gives discretion to the court to condone the delay for a sufficient cause, but that discretion cannot be extended beyond the period of thirty days, which is made exclusively clear by use of the words 'but not thereafter'." 21. In view of the above, the present petitions along with pending applications are dismissed on the ground of delay with no order as to cost. 22. It is made clear that this order has not made any observation on the merits of the claims of either party. 23. It is found that in the present case the Registry had raised an objection only with respect to re-filing of the petitions without realising the import of Section 34 (5) of the Act. The Registry should take note that no petition under Section 34 of the Act can be filed without giving advance copy of the same to the other party. Incase such application ..... 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