Section 34(3) of the Arbitration and Conciliation Act, 1996 prescribes a period of time during which a party who is aggrieved by an Award issued by the applicable Arbitral Tribunal should seek redress in the proper legal forum. Section 34(3) reads 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 has received the arbitral award or, if a request had been made under 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”
As a result, as the bare text of the Act indicates, an application for setting aside an arbitral award (“Objection”) must be filed within three months, i.e., 90 days, from the date of receipt of the award 2, and if the same is not filed within the prescribed time limit of 90 days, the concerned Court is only empowered to grant a further 30 days to file such Objection if it finds that there was sufficient cause preventing the concerned party from filing the objection.
Since the time limit for filing an Objection is 90 days, with a 120-day maximum, some plaintiffs have been observed to devise ways to get around this restriction and stop the clock from ticking. Today’s litigants are frequently observed filing only stacks of paper with no valid documents or permission. The judiciary, on the other hand, has been quick to notice this practise of “dummy filing” and has begun to analyse each submission that raises suspicion to see if the pre-requisites of a “legitimate” filing have been met.
The pre-requisites which have to be met for a legitimate filing are as follows-
- Affidavits accompanying petitions.
- The concerned party as well as the Advocate should sign each page of the Petition, including the last page.
- The party must sign the Vakalatnama, and the Advocate must identify the party’s signatures.
An Objection must therefore meet the aforementioned standards in order to avoid being classified as a “non-est” filing. What is also abundantly obvious is that an Objection cannot be accepted by the Court even if it is submitted within the 90-day time limit set forth in the Act if it is a “non-est” filing in the sense of the law.
When Litigators file Objections inside the 120-day time limit to stop the limitation clock from ticking, they are reduced to a “bunch of documents.” However, in such circumstances, the Courts have exercised caution and thoroughly analysed whether the Objection submitted is a “legitimate” filing in the sense of the law.
According to section 34 (3) of the Act, a strict assessment of the delay in filing Objections beyond 90 days 24 must be taken, and the Court should not be expected to mechanically condone the delay even if it is only a few days.
When valid objections that are not dummy/’non-est’ filings are filed within the prescribed time period of 90/120 days, residual defects raised by the Registry are not cured in a timely manner afterwards, i.e. the time provided for refiling as provided under the relevant High Court Rules [Eg: 30 days for refiling is provided under the Delhi High Court (Original Side) Rules, 2018 In such circumstances, the Court has the authority to excuse the delay in re-filing, but this cannot be done simply for the sake of it, and compelling grounds must be shown.
A review of the aforementioned judgements will reveal that they all have a common thread running through them, namely, that a “non-est” filing in the eyes of the law cannot prevent the statute of limitations from running. As a result, if the Court believes that the first/original filing of Objections was nothing more than a “bunch of papers” that failed to meet the basic legal standards of a “legitimate” filing, such matters must be handled as non-est. In reality, the Courts have been very proactive in ensuring that such non-est filings are sternly handled with, ensuring that the Act’s purpose and goal of establishing a strict deadline for filing Objections is not compromised or thwarted. As a result, these decisions send a strong and positive message to litigators that simply filing sheaves of paper to stop the clock from ticking will not be tolerated, and that an Objection must be genuine in order to be valid, At the stage of first/initial drafting, basic requirements such as the Client’s signatures on each page of the Objection, the presence of a Vakalatnama (which is a precursor to the preparation of an Objection), and the Client’s Statement of Truth stating on oath that the contents of the accompanying Objection have been drafted under its instructions are true and correct, must invariably form part of it.
As a result, the following must be kept in mind:
- Section 34 (3) of the Act establishes a stringent three-month deadline for filing an objection, i.e. 90 days.
- In the perspective of the law, such an objection must be a “legitimate” file, not a “bunch of papers” or a “dummy filing.”
- If the Registry raises errors that are fatal, resulting in the filing being marked as a non-est filing, the defects must be corrected within another 30 days, as specified in the proviso to Section 34 (3) of the Act.
- However, if these fatal deficiencies, i.e., the basic pre-requisites are not included in the Objection within the 120-day time limit, the said Objection will be considered a “non-est” filing in the eyes of the law and would not be accepted.
- If a valid Objection is filed within 90 days or the outer limit of 120 days, but the Registry raises defects that must be cured before the matter can be brought before the Court, and there has been a delay in refiling after curing the said defects beyond the period stipulated for re-filing by the re-filing by the re-filing by the re-filing by the re-filing by the re-filing by the re-filing by the Such power, however, is employed sparingly and not mechanically.
