Delhi High Court: Non-Filing Of Arbitral Award With Section 34 Application Renders It “Non-Est”
Delhi High Court: Non-Filing Of Arbitral Award With Section 34 Application Renders It “Non-Est”
The Delhi High Court, in a significant ruling, has held that the failure to attach an impugned arbitral award with an application under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act) renders the filing “non-est” in the eyes of the law. A full bench comprising Justices Rekha Palli, Navin Chawla, and Saurabh Banerjee delivered this judgment while hearing a reference made by a single judge in the case of Pragati Construction Consultants v. Union of India [FAO(OS)(COMM) 70/2024]. The Court emphasized that the filing of the arbitral award is not a mere procedural formality but an essential requirement for challenging an award under Section 34.
During the hearing, the appellant’s counsel argued that the A&C Act does not explicitly mandate the filing of the arbitral award alongside the application. It was contended that wherever the legislature required an impugned order to be filed, it has been clearly stated, as seen in Order XLI Rule 1 of the CPC and Section 423 of the BNSS. The absence of such a provision in Section 34, along with the fact that the Delhi High Court Rules do not impose this requirement, was cited as evidence that non-filing of the award should not invalidate an application under Section 34.
On the other hand, the respondent’s counsel maintained that the Delhi High Court has consistently held that the non-filing of the arbitral award prevents the Court from assessing the grounds for challenge, making the application itself “non-est.” The intervenor further argued that since multiple amendments have been made to the A&C Act without imposing an express requirement to file the award, it cannot be considered mandatory.
Analyzing the provisions of the A&C Act, the Court noted that Section 34(2)(a) allows for an arbitral award to be set aside if the applicant establishes, based on the arbitral tribunal’s record, that the proceedings suffered from procedural or substantive defects. Under Section 34(2)(b), an award can be set aside if the subject matter is not arbitrable or violates public policy, while Section 34(2A) permits the court to annul an award (excluding international commercial arbitrations) if it suffers from patent illegality on its face. The Court reasoned that without placing the impugned arbitral award on record, it would be impossible to meet the conditions set out in Section 34.
The full bench reaffirmed the position taken in previous judgments, including SKS Power Generation (Chhattisgarh) Ltd., SPML Infra Ltd. v. Graphite India Ltd. (2020), Executive Engineer National Highway Division v. S&P Infrastructure Developers (P) Ltd. (2022), ITDC v. Bajaj Electricals Ltd. (2023), NHAI v. KNR Constructions (2023), and DDA v. Gammon Engineers & Contractors Private Ltd. (2024), where courts consistently held that the non-filing of the arbitral award renders a Section 34 application “non-est.” The Court also rejected the appellant’s argument that the requirement to file an impugned order under CPC and BNSS should be extended to the A&C Act, emphasizing that arbitration law is a self-contained code, and drawing analogies from other statutes is inappropriate.
Concluding its analysis, the Delhi High Court held that the filing of the arbitral award is a mandatory requirement for an application under Section 34. The non-filing of the award renders such applications “non-est” in the eyes of the law, and consequently, the limitation period for challenging an award does not stop running unless the application is validly filed.
