THE DELHI HIGH COURT CLARIFIES THE ‘NON EST’ DOCTRINE IN SECTION 34 APPLICATIONS

In a recent ruling that adds to the growing body of jurisprudence on the procedural rigour under the Arbitration and Conciliation Act, 1996, Single Judge bench of the Delhi High Court in Union of India v. GR-GAWAR (J.V.) (2025 SCC OnLine Del 3065) has dismissed an Application under Section 34 of the Arbitration and Conciliation Act, 1996, as time-barred, holding the initial filing to be ‘non-est’ in law due to multiple fundamental defects—chief among them, the failure to file a copy of the arbitral award within the limitation period.

Factual Background:

The core issue of the matter involved a dispute arising from a contract for upgrading road infrastructure to paved standards in the Terai region of Nepal, awarded by the Union of India, through the Ministry of External Affairs to GR-GAWAR (J.V.) (hereinafter referred to as the “Respondent”), a joint venture entity of M/s GR Infra and Gawar Construction. These disputes were referred to arbitration, in terms of the Contract between the Parties, thereby culminating in an arbitral award dated 03.01.2024, and followed by a corrigendum dated 02.03.2024 (hereinafter collectively referred to as the “Arbitral Award”). Dissatisfied with the outcome, the Union of India (hereinafter referred to as the “Applicant”) sought to challenge the Arbitral Award under Section 34 (hereinafter referred to as the “Application”) of the Arbitration and Conciliation Act, 1996^[1].

Despite the original Application being filed on June 20, 2024, which was technically within the 120-day discretionary upper limit as per the Arbitration and Conciliation Act, 1996, the Hon’ble Court found that the filing was so fundamentally defective that it could not be treated as a bona fide filing. Moreover, the corrected and complete filing was finally made on January 20, 2025, which was far beyond the statutory window. The challenge was evidently marred by severe procedural defects, primarily the non-filing of the Arbitral Award itself, thereby leading the Respondent to raise a preliminary objection on the grounds of limitation.

The Respondent objected to the maintainability of the Application submitting that the filing dated June 20, 2024, could not be considered as a valid filing in law as it was not accompanied by the Arbitral Award, which is essential for a Section 34 challenge. Thus, asserting that the initial filing of the Application cannot stop the limitation clock. In this regard, the Respondent relied on the Full Bench decision in Pragati Construction Consultants v. Union of India and the Division Bench ruling in ONGC v. Sai Rama JV, to support their contention of the original filing being ‘non-est’, i.e., a nullity in law, on account of absence of foundational documents.

In the Full Bench decision in Pragati Construction Consultants v. Union of India, 2025 SCC OnLine Del 636^[2], the Hon’ble Court held that filing of the arbitral award along with a Section 34 Application is an essential requirement, and non-filing of the arbitral award therewith is not curable by subsequent rectification. Further, the Division Bench in ONGC v. Joint Venture of Sai Rama Engineering Enterprises & Megha Engineering and Infrastructures Ltd., 2023 SCC OnLine Del 6088^[3], developed the “cumulative defect test” for determining whether a filing shall be considered as ‘non-est’. It was held that while individual procedural defects may not by themselves invalidate a filing, however, a combination of serious defects can collectively render a filing non est.

Additionally, it was highlighted that the initial filing of the Petition was mala fide and a skeletal attempt made only to meet the deadline of the discretionary upper limit of 120 days provided. The Hon’ble Court observed that the complete set of the documents with substantial changes was finally filed seven months later in January, 2025. This subsequent filing along with the requisite documents was over 6,600 pages long while the initial filing consisted of 146 pages only. Evidently, this conduct of the Applicant demonstrated a lack of due diligence and failure to establish any genuine interest to prosecute the matter. In this regard, reference was also made to the Delhi High Court (Original Side) Rules, 2018 (hereinafter referred to as the “Rules”)^[4], as the Applicant failed to take any corrective measures to rectify their original filing, despite material objections being communicated to them through the Registry as early as on June 29, 2024. The defects were eventually corrected seven months later, which is strikingly beyond the permitted 30 day correction period provided in the Rules.

The Applicant argued that the original Application was filed with a delay of 18 days beyond the condonable 90 day period, thereby being within the discretionary upper limit of 120 days, as per the Arbitration and Conciliation Act, 1996. The Applicant further asserted that the delay of 18 days is condonable on account of bona fide and exceptional circumstances causing the delay.

Issues to be determined

The question before the Hon’ble Court was to determine whether the initial filing done on June 20, 2024, was so fundamentally lacking that it could not be considered a valid institution of proceedings at all, i.e., ‘non-est’. The Hon’ble Court further had to ascertain that in the event the initial filing is declared as non-est’, could the subsequent filing in January which was beyond the outer limit of 120 days be treated as a valid invocation of the Section 34 jurisdiction in terms of Section 34(3) of the Arbitration and Conciliation Act, 1996.

Ruling of the Hon’ble Court

Justice Purushaindra Kumar Kaurav while delivering a detailed and unambiguous judgement clarifying this critical issue of what constitutes a valid filing under Section 34 of the Arbitration and Conciliation Act, 1996, held that the Application filed initially on June 20, 2024 was legally ‘non est’, i.e., null and void, owing to fatal procedural defects, thus being barred by limitation.

Justice Kaurav observed that the filing of the Arbitral Award with a Section 34 Application is not a mere procedural requirement but a mandatory prerequisite to invoking the jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996. To support its reasoning, the Hon’ble Court relied on the Full Bench judgement in Pragati Construction Consultants v. Union of India (2025 SCC OnLine Del 636) while reiterating that:

“Non-filing of the Arbitral Award would make the Application ‘non est’. Reference in this regard may be made to... Good Health Agro Tech (P) Ltd. v. Haldiram Snacks (P) Ltd.^[5]”

The Hon’ble Court further drew upon the Hon’ble Supreme Court’s decision in Sunny Abraham v. Union of India [(2021) 20 SCC 12], which emphasized that a filing that suffers from a fundamental legal defect is void ab initio and cannot be retrospectively validated^[6].

Furthermore, the Hon’ble Court underscored the significance of cumulative defects which substantiate lack of bona fide in prosecuting the matter. The Hon’ble Court in the present Judgement listed a litany of critical objections in the initial filing raised by the Registry such as lack of providing the Statement of truth, unsigned pleadings, missing jurisdictional averments, incomplete Vakalatnama, missing court fee and process fee, among others. The Hon’ble Court opined that the collective impact of these deficiencies led to conclude that the initial filing was a mere formality to halt the limitation clock and not a diligent attempt to prosecute the challenge. The Hon’ble Court observed that it is evident that the original filing was merely done by the Applicant to circumvent the limitation period and the same cannot be permissible. Therefore, the original filing of the Application was declared as ‘non est’.

The Hon’ble Court while opining on the latter issue of condoning the subsequent complete filing done in January, reemphasized that the subsequent filing of the Application along with the foundational documents was submitted on January 20, 2025, which was beyond the outer limit of 120 days from the date of the Arbitral Award. The Hon’ble Court observed that Section 34(3) of the Arbitration and Conciliation Act, 1996, imposes a strict deadline for entertaining an application to set aside the Arbitral Award beyond 120 days. The relevant provision is reproduced hereinbelow:

“(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.^[7]”

In this regard, the Hon’ble Court placed reliance on the precedents namely, State of Maharashtra v. Hindustan Construction Co. Ltd. [(2010) 4 SCC 518]^[8] and Union of India v. Popular Construction Co. [(2001) 8 SCC 470]^[9], which reinforced the idea that the limitation period under Section 34 is strict and inflexible. Moreover, Justice Kaurav further signified the Rules laid down in the Delhi High Court (Original Side) Rules, 2018, wherein it is unambiguously expressed that a defective Application must be refiled within 7 days at a time and 30 days maximum aggregate. In the event, an application is not refiled in time, it must either be listed for dismissal for non-prosecution by the Registry or treated as a fresh institution. The Hon’ble Court while directing the Registry to strictly comply with these Rules, observed that the present matter ought to have been listed for dismissal due to the gross delay in the refiling of the Application.

Therefore, it was held that the initial filing was held to be non est and limitation continued to run despite such filing. It was also clarified that the initial filing was significantly outside the statutory limit of 120 days and thus, it cannot retrospectively validate the initial defective application.

Conclusion

This decisive ruling sends a strong message to litigants, and in particular public bodies, that procedural compliance is not optional when it comes to arbitration challenges. The filing must be complete, timely, and accompanied by the arbitral award to be treated as a valid invocation of judicial review under Section 34.

^[1] S34, Arbitration and Conciliation Act, 1996.

^[2] Pragati Construction Consultants v. Union of India, 2025 SCC OnLine Del 636.

^[3] ONGC v. Joint Venture of Sai Rama Engineering Enterprises & Megha Engineering and Infrastructures Ltd., 2023 SCC OnLine Del 6088.

^[4] Rule 3, Delhi High Court (Original Side) Rules, 2018, Notification No. 100/ Rules/ DHC (Dated 27/02/2018).

^[5] Para 60, Pragati Construction Consultants v. Union of India, 2025 SCC OnLine Del 636.

^[6]Sunny Abraham v. Union of India, (2021) 20 SCC 12.

^[7]S34(3), Arbitration and Conciliation Act, 1996.

^[8]State of Maharashtra v. Hindustan Construction Co. Ltd., (2010) 4 SCC 518

^[9]Union of India v. Popular Construction Co., (2001) 8 SCC 470