On January 6, 2023, the High Court of Delhi in the case of, Raj Kumar Gupta v. Messrs. Narang Constructions & Financiers Private Limited, had held that, the non-attestation of an affidavit, whilst filing objections under Section 34 of the Arbitration and Conciliation Act, 1996 (“Act”), cannot make the first filing as non-est, which attestation of the affidavit was only undertaken and cured after the first filing of the Objections.

Brief Facts: 

1. The award was pronounced on March 15, 2019. The limitation period to file the objections expired on June 13, 2019. The additional 30 (thirty) days granted to a party, in terms of Section 34(3) of the Act, expired on July 13, 2019, however, the Petitioner was required to show cogent reasons, which showed sufficient reasons from preventing the Petitioner to file the Objections. Thus, the total statutory period to file the Objections expired on July 13, 2019 (“statutory period”).
2. The objections were filed for the first time on June 29, 2019 and thereafter, were refiled on August 31, 2019, September 7, 2019, September 24, 2019 and September 25, 2019, which was beyond the statutory period in terms of the Act. As a result thereto, there was a delay of 52 (fifty two) days in re-filing the Objections.
3. The statement of truth was attested by the petitioner only on July 27, 2019, which was beyond the statutory period. The supporting affidavit along-with the Objections were not filed by the Petitioner within the statutory period.
4. The respondent objected to the condonation of delay of 52 in re-filing the Objections and thus, prayed for dismissal of the Objections to the Award.

Issue:  

Whether non-filing of the attested affidavit/ statement of truth would make the objections liable to be dismissed by the Court? Whether the non-filing of attested affidavit/ statement of truth is a procedural defect or goes to the core of making the affidavit non-admissible and non-existent in the eyes of law?

Decision: 

The High Court of Delhi had held that the first filing would be considered a valid filing subject to such filing containing no inherent defects, however, in case, the first filing contains inherent defects, the date of re-filing would be considered as the first date of filing. The distinguishing factor as to inherent defects is to be gathered from the nature of defects, i.e., whether they fall under ‘formal defects’ or ‘fundamental defects’. The Court explained that the attestation by a notary is a basic procedure of authentication, which confirms about the genuineness of a person who has signed the document, which is also reflecting in Sections 68 and 84 of The Indian Evidence Act, 1872 that shows that the attestation is more of a procedural requirement and does not impact the validity of the document itself. As a result, it was held that non-attestation of affidavit would not make the first filing as non-est and as such, the condonation in re-filing was allowed.

The Requirement:

Thus, the objections to be termed as ‘a properly filed petition’ under Section 34 of the Act ought to contain the following: 

1. Each page of the objection/ petition as well as last page should be signed by the party and the advocate;
2. Vakalatnama should be signed by the party and the advocate and the signatures of the party must be identified by the advocate; and
3. Statement of Truth/ Affidavit should be signed by the party and attested by the Oath Commissioner.  

Comment: 

By virtue of this judgment, the parties are required to file the objections to an award within the statutory period with certain documents, as stated hereinabove, failing which, the objections to the award would solely be rejected on the ground of limitation.

Please find attached a copy of the judgment.

This update has been contributed by Namitha Mathews (Partner) and Pulkit Malhotra (Associate).

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