Delhi District Court
M/S Incite Homecare Products Pvt. … vs M/S R.K Swamy Bbdo Pvt Ltd on 18 January, 2025
IN THE COURT OF DISTRICT JUDGE- 02
CENTRAL DISTRICT : TIS HAZARI COURTS, DELHI
Presiding Officer - Sh. Sandeep Kumar Sharma, DHJS.
ARBTN No. 286/2018
CNR No. DLCT01-004341-2018
IN THE MATTER OF:
M/s Incite Homecare Products Pvt. Ltd.
4128, Beantpura, Chandigarh Road,
Ludhiana (Punjab) - 141008
Through its Director - Shri Yuvraj Aggarwal
...Petitioner
Versus
M/s R.K. Swamy BBDO Pvt. Ltd.
1E/1, Jhandewalan Extension,
New Delhi - 110055
...Respondent
Date of institution of Petition : 31.03.2018
Date of reserving for order : 06.12.2024
Date of decision : 18.01.2025
ORDER Page no. 1 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.01.18
15:14:37 +0530
ORDER
1. The Court is rendering this Order in response to the
petition filed by the petitioner under Section 34 of the Arbitration
& Conciliation Act, 1996 [hereinafter to be referred to as “the
Arbitration Act“] for setting aside Order/Award dated 08.11.2017
[“Impugned Award”] passed by Ld. Sole Arbitrator in arbitration
proceedings titled ‘RK Swamy BBDO Pvt, Ltd. vs Incite
Homecare Products Pvt. Ltd’ and on an application under Section
14 of the Limitation Act seeking condonation of the delay of 07
days in filing the present petition.
Facts of the award (In Brief)
2. The respondent entered into an agreement dated
01.06.2012 with the petitioner to render
communication/advertisement-related services on a retainer basis
and payment of fees for certain services as per the agreement.
The same was rendered during the period 01.06.2012 to
30.11.2012 for a total sum of ₹.14,35,629/-, out of which the
petitioner paid a sum of ₹.7,89,772/- and the balance of
₹.6,45,857/- was left to be paid.
3. Thereafter, due to non-payment of the outstanding amount,
a dispute arose and as per the terms of the agreement, arbitration
proceedings were initiated in which both parties duly
participated. On the basis of the record, the Ld. Sole Arbitrator
ORDER Page no. 2 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.01.18
15:14:44 +0530
passed an award in favour of the respondent for the amount of
₹.11,51,525/- [₹.6,45,857/- (Principal) + ₹.5,05,668/- (Interest)]
alongwith 12% interest from the date of filing of the statement of
the claim till the actual realization of the amount.
Facts pleaded in the petition (In Brief)
4. In the petition, the petitioner has submitted that Sh. Sujit
Kumar of Social Rural Direction agreed to promote the business
of the petitioner company to increase its market share and sales
of products, and an agency agreement dated 01.06.2012 was
executed between the petitioner and Sh. Sujit Kumar of Social
Rural Direction as ‘Agency.’ The retainer fee of ₹.1,50,000/- was
agreed to be paid for doing something in sales growth. No work
of sales growth was done; however, the bills for retainer fees
were raised by the respondent company.
5. It is submitted that the award is liable to be set aside as the
impugned award is passed without paying regard to the
substantive law of the land. The Agency Agreement dated
01.06.2012 was not valid. The computer-generated ledger
account filed on behalf of the respondent before the Ld.
Arbitrator was not supported with a certificate under Section 65
B of the Evidence Act. Mr. Subhash, appearing on behalf of the
respondent, did not depose that the ledger account was prepared
or maintained by him in the computer of the company. Therefore,
the Ld. Sole Arbitrator has erred in awarding the interest at 18%
per annum.
ORDER Page no. 3 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:14:54 +0530
6. It is submitted that the interest was stipulated only in
respect of invoices/bills raised in respect of payment made by the
agency to suppliers and not in respect of invoices/bills raised in
respect of the “Retainer Fee”. That there was no agreement for
payment of interest at the prevalent commercial rate as raised by
the claimant; however, Ld. Arbitrator has awarded an interest
rate of 18% per annum as the same was claimed in the petition.
Reply of the Respondent No.1 (In Brief)
7. It has been contended by Respondent No. 1 that the award
was passed on 08.11.2017 and a copy of the impugned award
was received by the petitioner on 14.11.2017. There is a delay of
43 in filing the petition, and since the delay is inordinate and
unexplained, therefore, there is no ground to condone the delay
in filing the petition since the present petition has been filed after
43 days from the date of expiry of limitation, i.e., 13.02.2018.
Hence, it has been prayed that let alone the merits, the present
petition is liable to be dismissed merely on the ground of
limitation.
Arguments of the Ld. Counsel for both the parties
8. This court heard the arguments of the Ld. Counsel for the
respective parties at length and perused the record carefully. Ld.
Counsel for the petitioner argued that the award is liable to be set
aside as it not only has flaws in the factual aspects but is also bad
ORDER Page no. 4 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.01.18
15:15:04 +0530
in law as well. Per-Contra Ld. Counsel for the respondent argued
in favour of the award and sought the dismissal of the petition on
the ground of limitation alone, besides other grounds.
Scope of Section 34 of the Arbitration Act
9. At the outset, it is necessary to discuss the scope of Section
34 of the Arbitration Act. It is a settled position of law that
proceedings under Section 34 do not contain any challenge on
merits. In the case of ‘Delhi Airport Metro Express (P) Ltd. vs
Delhi Metro Rail Corporation Limited (2022) 1 SCC 131, the
Hon’ble Supreme Court held that while deciding applications
filed under Section 34, Courts are mandated to strictly act in
accordance with and within the confines of Section 34, refraining
from appreciation or re-appreciation of matters of fact as well as
law. Judicial interference with the arbitral awards is strictly
limited to the grounds in Section 34 as this approach would lead
to corrosion of the object of the Arbitration Act.
10. Further, the constitutional bench of the Hon’ble Supreme
Court in the case titled as ‘Re: Interplay between Arbitration
Agreements under the Arbitration and Conciliation Act, 1996 and
the Indian Stamp Act, 1899 – 2023 SCC OnLine SC 1666′ para-
82 held that
“82. One of the main objectives of the Arbitration
Act is to minimize the supervisory role of courts in
the arbitral process. Party autonomy and settlement
of disputes by an arbitral tribunal are the hallmarks
of arbitration law. Section 5 gives effect to the true
ORDER Page no. 5 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed by
SANDEEP SANDEEP KUMAR
KUMAR SHARMA
Date: 2025.01.18
SHARMA 15:15:15 +0530
intention of the parties to have their disputes
resolved through arbitration in a quick, efficient, and
effective manner by minimizing judicial interference
in the arbitral proceedings…”
11. The Hon’ble High Court of Delhi in the case titled as
”MTNL Vs. Fujitshu India Private Limited” 2015 SCC OnLine
Del 7437,’ held that the law is settled that where the arbitrator
has assessed the material and evidence placed before him in
detail, the court, while considering the objections under Section
34 of the said Act, does not sit as a court of appeal and is not
expected to reappreciate the entire evidence and reassess the case
of the parties. The jurisdiction under Section 34 is not appellate
in nature, and an award passed by an arbitrator cannot be set
aside on the ground that it was erroneous. It is not open to the
court to interfere with the award merely because, in the opinion
of the court, another view is possible. The extent of judicial
scrutiny under section 34 of the Act is limited, and the scope of
interference is narrow.
12. The remedy given by the statute under Section 34 of the
Act cannot be an appeal under the guise of petition under Section
34. The Hon’ble High Court of Delhi, in a case titled as ‘ State
Trading Corporation of India Ltd. Vs M/s Toepfer International
Asia PTE Ltd” 2014 SCC Online Del 3426’ held that,
“A Section 34 proceeding, which in essence is the
remedy of annulment, cannot be used by one party
to convert the same into a remedy of appeal. In our
view, mere erroneous/wrong finding of fact by the
Arbitral Tribunal or even an erroneous interpretation
of documents / evidence, is non-interferable under
Section 34 and if such interference is done by the
ORDER Page no. 6 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:15:24 +0530
Court, the same will set at naught the whole purpose
of amendment of the Arbitration Act“.
13. The Hon’ble High Court of Delhi in its decision in ‘ NHAI
vs Hindustan Construction Company Ltd. 2018 SCC OnLine Del
8020′ discussed the law related to Section 34 as manifested by
decisions ranging from ‘Renu Sagar Power Company Ltd. vs.
General Electric Company 1994 Supp. (1) SCC 644′ to
‘Associated Builders vs. DDA (2015) 3 SCC 49 and delineated
the following propositions:-
(i) The four reasons motivating the legislation of the
Act, in 1996, were
(a) to provide for a fair and efficient arbitral
procedure,
(b) to provide for the passing of reasoned
awards,
(c) to ensure that the arbitrator does not
transgress his jurisdiction, and
(d) to minimize supervision, by courts, in the
arbitral process.
(ii) The merits of the award are required to be
examined only in certain specified circumstances,
for examining whether the award is in conflict with
the public policy of India,
(iii) An award would be regarded as conflicting with
the public policy of India if,
(a) it is contrary to the fundamental policy of
Indian law, or
(b) it is contrary to the interests of India,
(c) it is contrary to justice or morality,
(d) it is patently illegal, or
(e) it is so perverse, irrational, unfair or
unreasonable that it shocks the conscience of
the court.
(iv)An award would be liable to be regarded as
contrary to the fundamental policy of Indian law, for
example, if,ORDER Page no. 7 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.01.18
15:15:32 +0530
(a) it disregards orders passed by superior
courts, or the binding effect thereof, or
(b) it is patently violative of statutory
provisions, or
(c) it is not in public interest, or
(d) the arbitrator has not adopted a “judicial
approach”, i.e. has not acted a fair, reasonable
and objective approach, or has acted
arbitrarily, capriciously or whimsically, or
(e) the arbitrator has failed to draw an
inference which, on the face of the facts, ought
to have been drawn, or
(f) the arbitrator has drawn an inference, from
the facts, which, on the face of it, is
unreasonable, or
(g) the principles of natural justice have been
violated.
(v) The “patent illegality” had to go to the root of the
matter. Trivial illegalities were inconsequential.
(vi) Additionally, an award could be set aside if,
(a) either party was under some incapacity, or
(b) the arbitration agreement is invalid under
the law, Or
(c) the applicant/petitioner was not given
proper notice of appointment of the arbitrator,
or of the arbitral proceedings, or was otherwise
unable to present his case, or
(d) the award deals with a dispute not
submitted to arbitration, or decides issues
outside the scope of the dispute submitted to
arbitration, or
(e) the composition of the Arbitral Tribunal
was not in accordance with the agreement of
the parties, or in accordance with Part I of the
Act, or
(f) the arbitral procedure was not in
accordance with the agreement of the parties,
or in accordance with Part I of the Act, or
(g) the award contravenes the Act, or
(h) the award is contrary to the contract
between the parties.
ORDER Page no. 8 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:15:40 +0530
(vii)”Perversity”, as a ground for setting aside an
arbitral award, has to be examined on the touchstone
of the Wednesbury principle of reasonableness. (A
reasoning or decision is Wednesbury unreasonable
(or irrational) if it is so unreasonable that no
reasonable person acting reasonably could have
made it (Associated Provincial Picture Houses Ltd v
Wednesbury Corporation (1948) 1 KB 223). It
would include a case in which
(a) the findings, in the award, are based on no
evidence, or
(b) the Arbitral Tribunal takes into account
something irrelevant to the decision arrived at,
or
(c) the Arbitral Tribunal ignores vital evidence
in arriving at its decision.
(viii) At the same time,
(a) a decision which is founded on some
evidence, which could be relied upon,
howsoever compendious, cannot be treated as
“perverse”,
(b) if the view adopted by the arbitrator is a
plausible view, it has to pass muster,
(c) neither quantity, nor quality, of evidence is
open to reassessment in judicial review over
the award.
(ix)”Morality” would imply enforceability, of the
agreement, given the prevailing mores of the day.
“Immorality”, however, can constitute a ground for
interfering with an arbitral award only if it shocks
the judicial conscience.
(x) For examining the above aspects, the pleadings
of the parties and materials brought on record would
be relevant.
(xi) The court cannot sit in appeal over an arbitration
award. Errors of fact cannot be corrected under
Section 34. The arbitrator is the last word on facts.”
14. From the above-referred judgments, the law relating to
Section 34 may be summarized as that it is not open to the Court
ORDER Page no. 9 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:15:47 +0530
to interfere with the award, as the jurisdiction under Section 34
of the Act is not appellate in nature, and an award passed by the
arbitrator cannot be set aside on the ground that it was erroneous.
The extent of judicial scrutiny and scope of interference under
Section 34 is absolutely limited. However, the award may be set
aside if it is against the fundamental policy and principles of
Indian law.
Analysis & Conclusion
15. Before further analysis and application of the Section 34
of the Act, it is apposite to reproduce to Section 34 (1) (2), (2A)
and (3) of The Arbitration and Conciliation Act, 1996, as under:
“34. Application for setting aside arbitral award-
(1) Recourse to a court against an arbitral award
may be made only by an application for setting
aside such award in accordance with sub-section
(2) and subsection (3).
(2) An arbitral award may be set aside by the
court only if-
(a) the party making the application
furnishes proof that-
(i) a party was under some incapacity,
or
(ii) the arbitration agreement is not
valid under the law to which the
parties have subjected it or, failing
any indication thereon, under the law
for the time being in force; or
(iii) the party making the application
was not given proper notice of the
appointment of an arbitrator or of the
arbitral proceedings or was otherwise
unable to present his case; or
(iv) the arbitral award deals with a
dispute not contemplated by or not
falling within the terms of the
submission to arbitration, or it
ORDER Page no. 10 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
SHARMA
KUMAR Date:
SHARMA 2025.01.18
15:15:56
+0530
contains decisions on matters beyond
the scope of the submission to
arbitration:
Provided that, if the
decisions on matters
submitted to arbitration can
be separated from those not
so submitted, only that part
of the arbitral award which
contains decisions on matters
not submitted to arbitration
may be set aside; or
(v) the composition of the arbitral
tribunal or the arbitral procedure was
not in accordance with the agreement
of the parties, unless such agreement
was in conflict with a provision of
this Part from which the parties
cannot derogate, or, failing such
agreement, was not in accordance
with this Part; or
(b) the Court finds that (i) the subject-
matter of the dispute is not capable of
settlement by arbitration under the law
for the time being in force, or (ii) the
arbitral award is in conflict with the
public policy of India.
[Explanation 1.For the avoidance of
any doubt, it is clarified that an award
is in conflict with the public policy of
India, only if,
(i) the making of the award
was induced or affected by fraud
or corruption or was in violation of
section 75 or section 81; or
(ii) it is in contravention with
the fundamental policy of Indian
law; or
(iii) it is in conflict with the
most basic notions of morality or
justice.
Explanation 2. For the
avoidance of doubt, the test
as to whether there is a
contravention with the
fundamental policy of Indian
ORDER Page no. 11 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.01.18
15:16:09 +0530
law shall not entail a review
on the merits of the dispute.]
(2A) An arbitral award arising out of
arbitrations other than international
commercial arbitrations, may also be set aside
by the Court, if the Court finds that the award
is vitiated by patent illegality appearing on the
face of the award: Provided that an award shall
not be set aside merely on the ground of an
erroneous application of the law or by re-
appreciation of evidence.
(3) 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 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.
(Emphasis Supplied)
16. The Hon’ble Supreme Court has held that Section 5 of the
Limitation Act is not applicable to Section 34 (3) of the Act, in
view of the express inclusion within the meaning of Section 29
(2) of the Limitation Act. It was held that the court cannot
condone delay beyond a period of 30 days and that also only if
sufficient cause is shown as to how the applicant/petitioner was
prevented from making application within the period of three
months and not thereafter. It is well established law that the time
limit prescribed under Section 34 to challenge the award is
unwavering and unchangeable by the court under Section 5 of the
Limitation Act. The Hon’ble Supreme Court held in the case
ORDER Page no. 12 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:16:18 +0530
titled as ‘Union of India vs Popular Construction Co., (2001) 8
SCC 470 (para-12 & 14)’ under,
“12. As far as the language of Section 34 of the 1996
Act is concerned, the crucial words are ‘but not
thereafter’ used in the proviso to sub-section (3). In
our opinion, this phrase would amount to an express
exclusion within the meaning of Section 29(2) of the
Limitation Act, and would therefore bar the
application of Section 5 of that Act. Parliament did
not need to go further. To hold that the Court could
entertain an application to set aside the Award
beyond the extended period under the proviso,
would render the phrase ‘but not thereafter’ wholly
otiose. No principle of interpretation would justify
such a result.
14. xxx. Hereby the history and scheme of the 1996
Act support the conclusion that the time limit
prescribed under Section 34 to challenge an Award
is absolute and unextendable by Court under Section
5 of the Limitation Act. The Arbitration and
Conciliation Bill, 1995 which preceded the 1996 Act
stated as one of its main objectives the need “to
minimise the supervisory role of courts in the
arbitral process”. This objective has found
expression in Section 5 of the Act which prescribes
the extent of judicial intervention in no uncertain
terms,
“5. Extent of judicial intervention. –
Notwithstanding anything contained in any
other law for the time being in force, in matter
governed by this Part, no judicial authority
shall intervene exceptwhere so provided in this
Part.”
(Emphasis Supplied)
17. Further, the Hon’ble Supreme Court in the case of ‘P.
Radha Bai & Ors. vs. P. Ashok Kumar & Anr., (2019) 13 SCC
445′ has held that once the respondents received the award, the
time under Section 34(3) commenced and any subsequent
disability was immaterial. Even if the appellant had committed
some fraud, it would not affect the right of the respondents to
ORDER Page no. 13 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:16:29 +0530
challenge the award if the facts entitling the filing of a Section 34
application were within their knowledge. From the above-
referred judgments, it is evident that the application under
Section 34 of the Act cannot be filed after a period prescribed
under the Act.
18. In view of the submissions of the parties and material
placed on record, the foremost issue for this Court to determine is
that
“whether the petition under Section 34 has been filed
within the time period prescribed under the
Arbitration & Conciliation Act.”
19. The record of the case lucidly manifests that the impugned
award was passed on 08.11.20017, and the same was supplied to
the petitioner on 14.11.2017. In view of this, the limitation to file
objections was commenced on 14.11.2017, and the statutory
period for filing a petition under Section 34(3) of the Arbitration
Act expired on 14.02.2018. Though the present petition was filed
on 31.03.2018, which was beyond the statutory and extended
limitation period under Section 34(3) of the Arbitration Act.
20. The petitioner in support of saving the limitation period
filed an application under Section 14 of the Limitation Act and
sought the condonation of 43 days in filing the present petition,
whereas, in the application under Section 34(3) filed with the
petition, the petitioner sought the delay merely of 07 days. It is
contended by the Ld. Counsel for the petitioner that the Ld.
ORDER Page no. 14 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA 15:16:39
Date: 2025.01.18
+0530
Counsel was not aware of the provisions of the Commercial
Courts Act, and therefore, objections were filed before the
Hon’ble High Court of Delhi vide dairy no. E-44105/2018.
Thereafter, only on 22.03.2018 it was explained by the officials
of the registry to the Ld. Counsel, and eventually it caused a
delay in filing the same before the District Court. On these
averments, the petitioner sought the condonation of the 43 delays
in filing the petition.
21. The contentions of the petitioner are not to be accepted
that its lawyer was not aware of the procedure of the recently
enacted Commercial Courts Act, because a lawyer is an expert in
its domain, and it may not be accepted that he is not well-versed
with the procedure and working of a law of such importance.
Moreover, it also doesn’t hold any merit that the law was newly
enacted because the Commercial Courts Act came into force on
23.10.2015, which is more than two years prior to the passing of
the present award; therefore, it cannot be said that since the law
was newly enacted/enforced, and therefore, the Ld. Counsel was
not aware of the avenue where the objections should be filed.
Furthermore, the objections are filed under the provisions of the
Arbitration Act and not under the provisions of the Commercial
Courts Act.
22. The petitioner has not mentioned the date in the
application on which the objections were filed before the Hon’ble
High Court of Delhi; however, perusal of the records reveals that
the same was filed on 12.02.2018. The lethargic approach of the
ORDER Page no. 15 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.01.18
15:16:48 +0530
petitioner may be gleaned from the fact that the court fees for the
filing of the objections under Section 34 of the Arbitration Act
were purchased only on 13.03.2018. Multiple objections on the
filing were raised by the Registry, and it is not correct to aver by
the petitioner that only on 22.03.2018 the objection regarding the
maintainability before the Hon’ble High Court of Delhi was
raised for the first time as Annexure V on pages No. 241 and
242. lucidly reveals that entry No. 14, 22, and 23 of the
objections raised by the registry regarding the applicability of the
provisions of the Commercial Courts Act vide dated 15.03.2018.
23. It is also pertinent to mention that the petition filed before
the Hon’ble High Court of Delhi could not be considered a valid
filing because it was neither supported by an affidavit of the
authorized person nor appropriate court fees was annexed to it. It
is settled law that incomplete filing or dummy filing cannot be
qualified as valid filing. Therefore, no benefits, either on factual
or legal grounds, could be extended to the petitioner. At this
juncture, it is apposite to mention the judgment of the Hon’ble
High Court of Delhi, titled as ‘National Highway Authority of
India vs KNR Construction Ltd, 2023/ DHC/ 000623′ wherein,
it has been held the filing with inherent defect is no filing in law,
that
“8. xxx. Filings with fundamental defects making
them hopelessly inadequate were not considered as a
proper filing in DDA v. Durga Construction , 2013
SCC OnLine Del 4451.
9. In case, the first filing is found to have inherent
defects and such filing has been held as non-est, then
the date of re-filing shall be considered as the first
ORDER Page no. 16 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
SHARMA
KUMAR Date:
SHARMA 2025.01.18
15:16:58
+0530
date of filing. However, where the defects have been
found to be only formal in nature, then the date of
first filing is considered as the date to reckon for the
purpose of limitation.
xxx
11. xxx. If the defects are of such character as would
render a plaint a non-plaint in the eyes of law, then
the date of presentation would be the date of re-
filing after removal of defects. If the defects are
formal or ancillary in nature not affecting the
validity of the plaint, the date of presentation would
be the date of original presentation for the purpose
of calculating the limitation for filing the suit.”
xxx
23. Likewise, in the case of Jay Polychem (India)
Ltd & Ors. Vs. S.E. Investment Ltd. 2018 SCC
OnLine Del 8848, this Court while dealing with non-
filing of Statement of Truth, held that a Statement
which is neither signed nor supported by an affidavit
cannot be considered as an application under Section
34 of the A&C Act, 1996 of the A&C Act, 1996.
The Petition thus filed without the Statement of
Truth, is non-est. (Emphasis Supplied)
24. The first filing was done without court fees, an affidavit, or
a statement of truth; even the names of the parties were not
mentioned in the vakalatnama. Therefore, the same cannot be
qualified as a valid filing and non-est in the eyes of the law.
Moreover, since the submissions regarding the recent enactment
of the Commercial Courts Act cannot be accepted as at the time
of filing of the present petition, more than two years had already
passed when it came into force; therefore, it cannot be said to be
a new law, and a practicing lawyer must be aware of the
provisions of the same.
25. In light of the extensive discussion above, this court is of
the considered opinion that the statutory limitation to file the
ORDER Page no. 17 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
Digitally signed
by SANDEEP
SANDEEP KUMAR
KUMAR SHARMA
SHARMA Date:
2025.01.18
15:17:06 +0530
petition under Section 34 of the Act expired on 14.02.2018, and
the extended period of 30 days also expired on 14.03.2018; thus,
this court has no discretion to condone the delay beyond 30 days
after the expiry of the three-month period of limitation in filing
the petition/application under Section 34 of the Act, whereby the
period of limitation commences from 14.11.2017, the date of
receipt of the impugned award. Even otherwise, as aforesaid, the
filed petition under Section 34 of the Act is well beyond the
available statutory three-month period for filing a petition or
application under Section 34 of the Act and even beyond the
period of the subsequent 30 days.
26. In view of the above, the petitioner is not entitled for
granting the relief as mentioned under Section 14 of the
Limitation Act and Section 34 (3) of the Arbitration Act as the
application seeking condonation of delay filed by the petitioners
for setting aside the impugned award dated 08.11.2017 was
beyond the mandatory period of limitation permitted under the
Act of 1996. Hence, the same cannot be entertained, as the delay
is both inordinate and inexplicable’; ergo, the present petition
being hit by limitation is not maintainable, and the same is
dismissed without going into the merits on the challenge to the
impugned award dated 08.11.2017, alongwith the application to
condone the delay under Section 34 (3) of the Arbitration Act
and Section 14 of the Limitation Act.
27. No orders as to costs.
ORDER Page no. 18 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.
SANDEEP Digitally
SANDEEP
signed by
KUMAR KUMAR SHARMA
Date: 2025.01.18
SHARMA 15:17:17 +0530
28. The file be consigned to the record room.
29. Original arbitral proceedings be sent back.
SANDEEP Digitally signed by
SANDEEP KUMAR
KUMAR SHARMA
Date: 2025.01.18
SHARMA 15:17:25 +0530
Announced in the open court (Sandeep Kumar Sharma)
on January 18th, 2025 District Judge-02/Central/THC
ORDER Page no. 19 of 19 Dated 18.01.2025
ARBTN No. 286/2018 CNR No. DLCT01-004341-2018 M/s Incite Homecare Products Pvt. Ltd. Vs M/s R.K. Swamy BBDO Pvt. Ltd.