The Arbitration and Conciliation Act, 1996, under the requisite provisions of Section 34(3) elucidates or lays down provisions pertaining to providing a time limit within which one of the parties to the dispute or one of the parties who is not satisfied with the Award which is passed by an Arbitral Tribunal, can file an application before an appropriate judicial body in order to challenge the validity of the Award. This can basically be deemed to be regarded as equivalent to filing for an appeal in the higher court if one of the parties to the dispute is not satisfied with the decision passed by the lower court.

The provisions of Section 34(3) of the Arbitration and Conciliation Act, 1996 can be understood as follows, “An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under the provisions of Section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”[1]

The abovementioned provision elucidated under Section 34(3) clearly states that if a party is aggrieved by the Award passed by an Arbitral Tribunal then that party has a time period of ninety days[2] or three months from the date on which the Award was passed by the Tribunal to challenge the said award before an appropriate judicial body. The appropriate judicial body has only been conferred with the powers to extend the said period of 90 days to another 30 days, in which if the aggrieved party fails to file an application, then the Award shall be deemed to be binding on both the parties. The Court can extend the time period to another 30 days if the aggrieved party shows sufficient cause which led to the delay in filing the said application. The extension by the appropriate court is granted after looking into the matter extensively and this is done by the courts in order to ensure that the aggrieved party is not causing a delay in filing the application on purpose, thereby hindering the entire process. The Supreme Court, in the case of Union of India v. Popular Construction[3] and Simplex Infrastructure Limited v. Union of India[4] has elucidated upon this in detail and reiterated that the time period granted under the requisite provisions of Section 34(3) is proper and accurate and it is the duty of the aggrieved party to strictly adhere to the guidelines provided under the provisions of the said section. The Supreme Court in the case of Union of India v. Popular Construction[5] has taken cognizance and deliberated upon the provisions elucidated under the Arbitration and Conciliation Bill, 1995, which laid down that the main point of focus of the Bill is to ensure that the disputes arising between parties are solved in a time bound manner, with minimal interference of the Courts during the pendency of an arbitral proceeding and therefore, it is imperative for the parties to adhere to the provisions pertaining to the time frame within which the disputes need to be disposed of according  to the requisite provisions of Section 34(3).[6]  This simply means that the Courts cannot allow the parties to extend the time period beyond 120 days (90 days plus 30 days combined) under any circumstances.

It is imperative to understand, that the courts also check whether the party is filing for a fresh application and whether the fresh filing can be deemed to be regarded as a means of ‘proper filing’ or whether the party is filing “non-est”. The Courts examine whether such filing made by the aggrieved party is done within the stipulated time frame of 120 days or not. If the party fails to file an application under the requisite time frame as guaranteed under the provisions of Section 34(3), then the Court cannot entertain such an application. Therefore, if the party files an application within the stipulated time frame of 120 days, however, the application suffers from discrepancies, then such an application can be deemed to be regarded as a, “non-est” filing and the Court cannot grant the aggrieved party additional extension in order to rectify the said discrepancies and if the party rectifies the discrepancies in the application and files again, the court cannot accept the rectified application as valid.

“Non-Est” Filing

The aggrieved parties are granted a period of 90 days in order to file an application if they are not satisfied with the Award passed by Arbitral Tribunal. The Court grants an additional extension period of 30 days to the parties within which they are required to file the said application showing their dissatisfaction with regards to the Award passed by the Arbitral Tribunal. However, at times, parties simply file fake or dummy applications within the time span which is provided to them in order to extend the time limit and thereby causing hindrance to the entire process. The Courts, however, have begun to examine each and every application filed by the aggrieved parties in order to ensure that the parties are filing appropriate applications, which are authorized by an authority. The Courts have begun scrutinizing each and every application which they feel is suspicious and the Delhi High Court has dealt with a number of such matters in the following cases: 

1)      In the case of Jay Polychem (India) Ltd. & Ors. v. S.E. Investment Ltd[7], the party aggrieved by the Award passed by the Tribunal, filed an application for appeal exactly before the expiry of the prescribed time limit of 90 days. However, the application filed by the aggrieved party was not signed and the party had even failed to attach the requisite attested documents as per the requirement of the Court. Therefore, the Registry returned the application filed by the aggrieved party on grounds of discrepancies mentioned above. The party, rectified the errors and again filed an application just before the expiry of the extra 30 days which were granted by the Registry to the aggrieved party. After hearing both sides and deliberating upon the said issue, the Court was of the opinion that, “the delay cannot be condoned as the defects that existed in the Objection, accompanies with a statement of truth cannot be considered as a valid objection under the necessary provisions of Section 34 of the 1996 Act and hence ought to be construed as ‘non-est’ in nature.”

2)      The next case in which the Delhi High Court presided over was the case of SKS Power Generation (Chhattisgarh) Ltd. v. ISC Projects Private Limited[8], in this case, the aggrieved party not satisfied with the arbitral award passed by the Tribunal filed an application during the 90 days period, however, failed to submit the necessary documents such as the affidavit and the Vakalatnama. Apart from that, the party submitted a document containing only 29 pages which did not have any markings, or pagination and the party did not attach a copy of the Arbitral Award which the party was aggrieved with and wished to challenge before the Court. With regards to these defects pertaining within the application, the Registry returned the application to the aggrieved party asking the party to make the necessary amends and resubmit the same within a period of 30 days. However, the aggrieved party filed the amended application, two months after the date on which the application was returned by the Registry, which was way beyond the time granted to the party. The Court heard the contentions raised by both the parties to the dispute and after due deliberations passed a Judgement relying upon the cases of, Delhi Development Authority v. Durga Construction Co.[9], Sravanthi Infratech P. Ltd. v. Greens Power Equipment (China) Co. Ltd.[10] and reiterated that the said application filed by the aggrieved party can be deemed to be regarded as a ‘non-est’ filing because the application filed by the party aggrieved with the Award passed by the Arbitral Tribunal was insufficient and lacked the basic documents which are extremely crucial for filing an application for challenging an Arbitral Award.

3)      In another case, titled, Director-Cum-Secretary, Department of Social Welfare v. Sarvesh Security Pvt.Ltd.[11], the objection was filed by the aggrieved party within the stipulated period as provided under the provisions of Section 34(3), i.e. within 90 days, however, the application contained innumerable issues and the documentation was incomplete. The application did not contain the signatures of the necessary parties, nor did the application have a proper affidavit attached, or Vakalatnama which authorizes the lawyer to sign the petition.[12]  As a matter of fact, the aggrieved party took approximately 118 days to re-file the said application challenging the Arbitral Award. The Court, in this case, rejected the application filed by the aggrieved party, despite it being re-filed within the stipulated time-frame and reiterated that the filing made by the party to the dispute cannot be deemed to be regarded as a proper means of filing and does not meet the basic criterions that enable the Court to regard such an application as proper. Vide this judgement, the Delhi High Court laid down certain guidelines which the parties need to strictly adhere to whilst filing for an application challenging an Arbitral Award passed by an Arbitral Tribunal. The Court elucidated that it is necessary for the parties to submit: a) the signatures of all the parties on all the necessary documents; b) Affidavits which need to be annexed along with the petitions; and c) Vakalatnama duly executed and signed.

4)      Next, in the case of Oil and Natural Gas Corporation Ltd. V. Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Limited (Meil)[13], the Delhi High Court in this case reiterated further upon what can be deemed to be regarded as the basic requirements when it comes to properly filing an application challenging the validity of an Arbitral Award. In this case, the application challenging the arbitral award was filed within the stipulated time-frame of 90 days, however the application had a lot of discrepancies. The application did not contain proper signatures, the affidavits annexed thereto were not properly signed and attested by the parties and the lawyer and the party had failed to execute the Vakalatnama as well. The party had even failed to pay the requisite court fees and at the same time the caveat report wasn’t served to the respondent. The Registry returned the application, granting a further 30-day extension to the party challenging the said award, however, the parties paid no heed to the amendments and the aforementioned defects were not rectified by the aggrieved party. Therefore, after listening to both the sides, the High Court opined that the aforementioned filing made by the aggrieved party can be deemed to be regarded as a, ‘non-est’ filing and provided that the said filing cannot be barred by the limitation provided under the requisite provisions of Section 34(3) and such a filing can surely be no ground for causing a delay in the filing process. It further reiterated that, “the parties need to fulfil the following requirements which are essential to be fulfilled/complied with, in order for a filing to be constituted as a ‘proper’ filing and be treated as a petition in the eyes of the law:

i)                   Each page of the Petition along with the last page ought to be signed by the concerned party as well as the Advocate;

ii)                 Vakalatnama ought to be signed by the party and the Advocate along with the signatures of the party be identified by the Advocate;

iii)               Statement of Truth/Affidavit should be signed by the Party and attested by the oath commissioner; [14]

Therefore, this simply means that for an application or a filing to be not regarded as a, ‘non-est’ filing, the application filed by the aggrieved party needs to contain the aforementioned documentations in place. Furthermore, it is imperative to understand that an application cannot be accepted by the Court on the grounds that it was filed within the stipulated time-frame of 90-days, if the Court has sufficient reason to believe that the said application is a ‘non-est’ application or a ‘non-est’ filing.

There have been other instances too, wherein the parties have filed an application challenging an Arbitral Award after the lapsing of the 120-days period. However, the Courts have taken enough steps in order to ensure whether the said application falls under the ambit of a ‘proper filing’ or not. It is imperative to throw light upon the case of Sravanthi Infratech P. Ltd. v. Greens Power Equipment (China) Co.Ltd.[15], wherein the application was filed by the aggrieved party within the stipulated period of 90-days as provided under the provisions of the Act, however, the concerned party took no measures in order to rectify the mistakes which prevailed in the application within the outer limit of 120 days (90 days plus 30 days). The Delhi High Court, in this case reiterated that the discrepancies found by the Registry, i.e., there being no documents, no Vakalatnama, no application for condonation of delay, no authority and no affidavit annexed, at the time when the application was filed cannot be deemed to be regarded as a ‘proper filing’.[16] The Court further emphasized upon the following aspects: “a) that the initial objection that had been filed consisted only of 66 pages and what was eventually filed after a substantial delay, was an objection containing 859 pages. On a comparison of the two, the Court noted that this confirmed the suspicion that, what had been filed earlier was neither comprehensive nor properly executed. b) an objection that is filed without any affidavit, but is re-filed with ante-dated affidavit can also be deemed to be regarded as an attempt to falsify the record and thus cannot be accepted.[17]

Therefore, with regards to the discrepancies which were made by the parties while filing the requisite documents, the Division bench provided that according to the necessary provisions of Section 34(3), the parties need to strictly adhere to the time period which is enumerated therein and the parties shall under no circumstances file the said application before the stipulated time-frame guaranteed to them under the provisions of Section 34(3). The Court held that, “a strict view needs to be taken with regards to the delay in filing Objections beyond 90 days and the Court ought not to be expected to mechanically condone the delay in filing an objection even if there is a delay of only a few days.”[18]

Analysis and Conclusion

From judgements enumerated above, it can be said that all the judgements have one thing in common and that is the Courts have carefully scrutinized each and every document to identify whether the filing made by the aggrieved parties is a “non-est” filing or not. It can be said that the Court, in all the above mentioned cases has passed a judgement stating that the application or the filing made by the parties originally can just be deemed to be regarded as an incomplete application and cannot be deemed to be regarded as an application falling under the scope of a proper filing. The Courts all the above mentioned cases have regarded such filings as non-est filings which lacked certain requisite documentations which were essential in order to successfully challenge an Arbitral Award. The Courts have carefully scrutinized applications filed by the parties, ensuring that the objective or the aim of the Act, which is to solve the disputes in a time-bound manner is not diminished.

It is imperative to understand that Section 34(3) of the Arbitration and Conciliation Act, 1996, specifically enumerates a stipulated time-frame of 90 days within which the parties who are aggrieved with an Award passed by the Arbitral Tribunal can file an application challenging the said Award. It is imperative for the parties to adhere to the necessary guidelines while filing an application in order for the application to fall under the scope of a proper filing, however, if the parties fail to adhere to the requisite provisions, then under such case, the filing can be deemed to be regarded as a non-est filing.