The High Court of Delhi recently made a significant judgement in the case of Ambrosia Corner House Private Limited vs. Hangro S Foods, which re-iterated the concept of non-est filing. The court’s judgement provided clarity on the instances that would constitute non-est filing and encouraged a liberal approach to define the same. The court acknowledged that there are no clear and definite guidelines to ascertain non-est filing, which would largely depend on the facts and circumstances of each case.
The case was filed challenging the arbitral award dated March 14, 2022 under Section 34 of the Arbitration and Conciliation Act, 1996. The learned counsel for the Respondent raised the preliminary objection that the petition was not maintainable as it was filed beyond the prescribed period of limitation under Section 34(3) of the Act, and hence submitted that such filing was non-est. The Respondent also argued that the petition was filed without a copy of the impugned arbitral award or the supporting documents, and that the Petitioner had not attested the affidavit in support through an Oath Commissioner.
On the other hand, the learned counsel for the Petitioner contended that the petition was filed within the prescribed period of limitation as it was filed on the date of re-opening of the court after summer vacation, which was July 4, 2022. The Petitioner also argued that the petition contained complete particulars and grounds of challenge of the award and was signed by the Director of the company and by the counsel who had filed the vakalatnama.
The court referred to previous decisions passed by the Delhi High Court in Oil and Natural Gas Corporation Ltd. vs. Joint Venture of M/s. Sai Rama Engineering Enterprise & M/s. Megha Engineering & Infrastructure Limited (MEIL) (2019 SCC
OnLine Del 10456) and Oriental Insurance Co. Ltd. vs. Air India (2019 SCC OnLine Del 11634), which laid out the instances that would constitute non-est filing. The court observed that the petition filed on July 4, 2022 was the same as the petition filed on July 26, 2022 and was signed by the authorized signatories of the Petitioner along with a filed vakalatnama of the counsel. The Petitioner had also attempted to file the required documents including the impugned arbitral award in accordance with the Delhi High Court (Original) Side Rules, 2018. In light of these observations, the court held that the petition filed on July 4, 2022 cannot be considered as non-est, but at best, the Petitioner committed an error in not filing the documents in a separate folder.
With respect to the issue of limitation, the court held that as the Petitioner attempted to file the petition on July 4, 2022, which was the date of re-opening of the court, the benefit of Section 4 of the Limitation Act, 1963 cannot be denied and hence the petition filed on that date was within the period of limitation stipulated within Section 34(3) of the Act.
In conclusion, the High Court of Delhi’s judgement in the case of Ambrosia Corner House Private Limited vs. Hangro S Foods provides clarity on the instances that would constitute nonest filing and encourages a liberal approach to define the same. The court’s decision to reject the Respondent’s objection on the petition being barred by provisions of Section 34 (3) of the Act, highlights the importance of taking a holistic approach while considering the facts and circumstances of each case.