Calcutta High Court
National Institute Of Technology vs Merint Industrial Infrastructure … on 27 February, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
ORDER OCD - 36
wt. 37
IN THE HIGH COURT AT CALCUTTA
(COMMERCIAL DIVISION)
ORIGINAL SIDE
AP-COM/12/2025
NATIONAL INSTITUTE OF TECHNOLOGY
VS
MERINT INDUSTRIAL INFRASTRUCTURE PRIVATE LIMITED
WITH
AP-COM/715/2024
NATIONAL INSTITUTE OF TECHNOLOGY
VS
MERINT INDUSTRIAL INFRASTRUCTURE PRIVATE LIMITED
BEFORE:
THE HON'BLE JUSTICE SHAMPA SARKAR
Date : 27th February 2025.
APPEARANCE:
Mr. Bodhisatta Biswas, Adv.
Ms. Rajashree Venket Kundalia, Adv.
... for petitioner.
Mr. Rajarshi Dutta, Adv.
Mr. Ayan Dutta, Adv.
Mr. Rahul Auddy, Adv.
Mr. Aditya Gooptu, Adv.
...for respondent
1. AP-COM/12/2025, is an application under Section 36(2) of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as the
“said Act”). The petitioner prays for stay of the Award.
2. Mr. Rajarshi Dutta, learned advocate appearing for the respondent
has raised an objection with regard to the maintainability of this
application on the ground that the application under Section 34 of
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the said Act being AP-COM/715 of 2024, is non-est in the eye of
law. The application under Section 36(2) of the said Act, had been
filed in aid of the application under Section 34 of the said Act.
Unless there is a pending application under Section 34 of the said
Act for setting aside the award, the question of filing an application
for stay of enforcement of the said award, will not arise.
3. Mr. Dutta submits that the case status report, which is available in
the website of the Calcutta High Court, Original Side, indicates that,
the filing date of AP-COM/715/2024 is July 23, 2024.
4. Mr. Dutta submits that the registration date and the date of the
filing are to be reckoned for the purpose of calculation the period of
limitation. According to him, the last date for filing the application
for setting aside the Award was July 20, 2024. The filing was not
complete until the department scrutinized the entire file, pointed out
the defects, allowed the party to cure the defects and finally
accepted the same by allotting the registration number and the filing
date. Uploading of the documents by the petitioner, scrutiny by the
department, acceptance of papers and registration of the
application, constitutes the entire process of filing. Thus, filing was
complete on July 23, 2024 and not before the said date.
5. Mr. Dutta submits that the argument of the petitioner that once the
petitioner uploads the documents in the e-portal, limitation will stop
running, was fallacious. If a party, with ulterior motive, uploads
incorrect documents, totally unconnected with the lis, in that event
such defective filing would also be accepted as proper filing. Such,
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cannot be the proposition of law. Thus, the requirement of the
department to scrutinize, notify defects if any, allow rectification
etc., are integral parts of the process of filing the petition before the
High Court. Such process culminates into allotment of a filing date
and registration number.
6. The Practice Directions of 2021 has been relied upon by Mr. Dutta
to submit that, although, the Code of Civil Procedure, West Bengal
Civil Rules and Order, Original Side and Appellate Side Rules of the
High Court, apply mutatis mutandis to the Practice Directions, but
if there is any conflict or inconsistency or repugnancy between the
Practice Directions and the above mentioned Rules, the practice
Directions shall prevail.
7. Mr. Dutta submits that even if the filing system prevailing before e-
filing was introduced would arrest the limitation on the date of filing
the papers before the filing department of the High Court at
Calcutta, the Commercial Courts Practice Directions of 2021, has
made it mandatory, that the said directions will supersede all other
Rules and Orders or Procedure, with regard to filing and conduct of
matters before the Commercial Division.
8. This argument of Mr. Dutta cannot be accepted by this Court. The
Practice Directions of 2021 does not deal with the issue involved,
i.e., computation of the period of limitation. The Practice Directions
deal with identification and transfer of pending commercial
disputes, forms of transfer of records, forms of pleadings, institution
of suits, service of process by various modes, summoning of
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witnesses, availing of service of experts, provisions for appeal,
provisions for computerized listing, the description of cases and the
protocol for conducting case management hearing. E-filing case
stages as available from the website of the Original Side has been
obtained by the petitioner. The sequence of filing is stated as
hereunder.
”
Original Side
AWB20240000520C202400002
Relief Sought: Application
Case Type: AP-COM
NATIONAL INSTITUTE OF TECHNOLOGY VS MERINT INDUSTRIAL INFRASTRUCTURE PRIVATE
LIMITED
Advocate Name: RAJASHREE V KUNDALIA Barcode: WB/1419/1999 Unique ID:AWD20240000520
eFiling Case Stages:
Sr.No. Case Status Date 1. Case Entry Initiated On 19-07-2024 13:38:33 2. eFile Case Final Submitted On 19-07-2024 13:48:22 Case Status In Court CIS Verified On 01-01-1970 [WBCHCO0027992024] Uploaded Pleadings: Sr.No. Document Name Document Number Upload Date Time Final Submit Date Time 1. EC COM AWB20240000520D202403008 19-07-2024 13:46:08 19-07-2024 13:48:22
9. Thus, this Court is of the view that limitation will stop running as
soon as the document was presented before the appropriate
department (i.e), limitation will stop running on the date the
documents were uploaded in the e-portal. The moment the
document was affirmed and presented before the appropriate
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Department (by uploading in the portal upon payment of court fees),
the liability of the petitioner was discharged. In this case, filing was
done on July 19, 2024. The e-filing procedure requires the
documents to be uploaded upon payment of Court fees. Such
process amounts to presentation of the application before the proper
department.
10. Upon perusal of the information downloaded from the website of the
Court, this Court finds that the case entry was initiated on July 19,
2024 and the e-case final submission date was also July 19, 2024.
Thus, the apprehension of Mr. Dutta that irrelevant documents
could have been filed just to overcome the period of limitation and
the rectification could have been done at a later date upon scrutiny,
is factually incorrect.
11. Mr. Dutta submits that by a notification dated March 21, 2024,
issued by the Registrar General, all concerned were notified that,
unless online payment of court fees were mandatorily done through
the e-pay portal, filing would not be complete. Filing number would
be allotted only upon the e-filing being accepted.
12. As per law, limitation is arrested with the filing of the plaint,
memorandum of appeal or application. Reference is made to the
definition of ‘filing’ in Black’s Law Dictionary. Filing has been
defined as the act of delivering a document to the proper officer or
official for the purpose of being kept on record. A document is
considered filed when it is received by the appropriate authority to
be maintained as part of the official records of a court or office.
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13. The law does not change because the e-filing platform has now been
introduced. Under the Act, an application under Section 34 of the
Arbitration and Conciliation Act, 1996, for setting aside an award
may not be made after three months had elapsed from the date on
which the party making the 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. However, if the Court is satisfied that the applicant was
prevented by sufficient cause from making the application within
the period of three months, it may entertain an application within a
further period of thirty days, but not thereafter.
14. Thus, ordinarily, the period of limitation is three months from the
date on which the party received the award and the Court can
extend such time upon being satisfied that the party challenging the
award had sufficient reason not to file the same within the three
months period. However, the Court can extend the limitation not
beyond a further period of thirty days. In total, therefore, the period
of limitation for setting aside an award, upon showing good cause, is
three months and thirty days from the date a party receives the
award. The document which has been filed before this Court
demonstrates that, steps for e-payment were initiated on July 16,
2024 and a receipt of such payment had been endorsed by the
competent department on July 18, 2024. Thus, the notification of
the learned Registrar General supports the case of the petitioner.
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15. The acknowledgement of the High Court’s, Original Side with regard
to the payment which was issued to the learned advocate-on-record
for the petitioner is also available from the application and the date
of such acknowledgement is 16th July, 2024 at 14:34:00 hrs.
16. Under such circumstances, this Court is of the view that the
limitation stopped running on July 19, 2024, when the petitioner
uploaded the application for setting aside the award, upon payment
of court fees.
17. This is not a case where any defect was ever notified and the
petitioner failed to take steps to rectify such defect. Moreover, the
time spent by the department to make its scrutiny and provide the
registration number, is an internal procedure of the department. If
the department took longer than it was necessary for such
procedure, the litigant cannot be saddled with the consequences
thereof. Physical receipt and stamping of the papers cannot be
taken as the filing date in respect of any e-filing. Interpreting the
date supplied by the department as the date of filing, will have
serious consequences. The litigant is not supposed to know the
intricacies of the e-filing system nor the procedural formalities
which the department of the High Court has to ensure to finally
register a petition. In this digital era, it is too late in the day to claim
that the e-filing of the application cannot be construed as the date of
filing and it is only the physical availability of papers that should be
construed as the actual date of filing. If this interpretation is given,
all efforts that are being taken by the Apex Court and the other High
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Courts in India to make the entire legal proceeding digital, will be
defeated. Moreover, filling up Form A, is also a formality for entering
the relevant data in the court’s records. The information on that,
does not change the law relating to limitation.
18. The duty of the litigant is to file the application within the period of
limitation. Filing of an application on the last day of the limitation,
is also accepted as proper filing. The filing was done on July 19,
2024, and the case of Mr. Dutta is that the limitation period would
end on July 20, 2024. July 20, 2024 was a Saturday. Thus, the date
of filing is the date when the application was electronically
uploaded. The argument of Mr. Dutta that the party filed unrelated
documents or incorrect documents only to stop limitation from
running, is not available in the facts of this case and the Court does
not think a litigant will run the risk of filing incomplete or incorrect
documents to his detriment, by paying court fees. In any event, if
technical defects are detected upon scrutiny, limitation will stop
running upon uploading of documents in the e-portal upon payment
of court fees. The time taken for scrutiny and curing the defects
pointed out by the department will be excluded.
19. Thus, the objection of Mr. Dutta is not accepted and the Court
proceeds to hear and dispose of the application under Section 36(2)
of the Arbitration and Conciliation Act, 1996.
20. Upon perusal of the document, this Court deems it fit to stay the
award unconditionally for a period of five weeks from date and
directs that, within such time the petitioner shall deposit a sum of
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Rs.1.60 crores as security. 50% of the said amount shall be
deposited in cash with the Registrar, Original Side of this Court.
The Registrar, Original Side of this Court shall invest the same in an
interest bearing auto renewable fixed deposit account, maintained
with any Nationalised Bank. The remaining 50% shall be secured by
way of a bank guarantee to the satisfaction of the learned Registrar,
Original Side of this Court. The bank guarantee shall be kept
renewed. If the amount, as directed, is paid within the
aforementioned period of five weeks, the interim order shall
continue till disposal of the application under Section 34 of the 1996
Act.
21. Accordingly, the application being AP-COM/12/2025 is disposed of.
Re: AP-Com/715/2024
22. Let AP-COM/715/2024 be de-tagged from the list.
(SHAMPA SARKAR, J.)
sm/SN/sb/snn