Non-Est Filings and Limitation under Section 34: Delhi High Court’s Pragati Constructions Ruling

Shivanshi Shukla^[1]

I. Introduction

Arbitration, as a form of Alternative Dispute Resolution (ADR) is intended to offer a speedy, cost-effective, and efficient alternative to tedious Court litigation. Yet, recent judicial trends show a rise in the bar on procedural compliance-related issues in Court-related proceedings of arbitration. Recently, a full judge bench of the Hon’ble Delhi High Court comprising Justice Rekha Palli, Justice Navin Chawla, and Justice Saurabh Banerjee,  in Pragati Constructions Consultants V/s Union of India, 2025 : DHC : 717-FB addressed two such compliance related issues being firstly, the absence or defect in the Statement of Truth, and secondly, the effect of non-filing of the Arbitral Award rendering such Petition as non-est.  

The critical pitfall of a non-est filing lies in its impact on limitation. Under the Arbitration and Conciliation Act, 1996 (“the Act”), a petition to set aside an arbitral award must be made within 90 days, extendable by a further 30 days at the Court’s discretion, with no scope for condonation beyond this 120-day outer limit. If a petition is treated as non-est, the initial filing offers no safeguard, as the limitation clock continues to run, and the challenge may be irretrievably barred. This article critically analyses the Delhi High Court’s reasoning, statutory intent, and the implications for India’s efforts to promote arbitration as a preferred mode of dispute resolution.

II. Non-est Filings and Requirements under Section 34

In Sunny Abraham v. Union of India, (2021) 20 SCC 12, the Supreme Court interpreted “non-est” as something treated in law as non-existent due to a fundamental legal lacuna going beyond mere procedural irregularity. Applied to a case of challenging the award, this means that even if a petition is filed within the limitation prescribed under Section 34(3) of the Act, it may still be disregarded as non-est filing, with the limitation clock continuing to run and any subsequent filing barred.

Section 34 enables a party to challenge an arbitral award on specific grounds within the time limit and also prescribes a rigid limitation period of 90 days, which can be further extended by 30 days at the Court’s discretion in the presence of a sufficient cause.  The Supreme Court, in Union of India v. Popular Construction Co, (2001) 8 SCC 470, described this limit as “inelastic and inflexible,” a view reinforced in by the Supreme Court in State of West Bengal v. Rajpath Contractors and Engineers Ltd, (2024) 7 SCC 257, the Apex Court, relying on Popular Construction, dismissed an appeal on the ground that the challenge to set aside the award was filed beyond the statutory period. What remains uncertain, however, is whether defects such as non-filing of the award, Vakalatnama, or Statement of Truth render a petition non-est or whether they may be treated as curable irregularities. Courts have reached divergent conclusions,  where such petitions were held to be non-est, relying on provisions of the Civil Procedure Code 1908 (“CPC”) and the Commercial Courts Act 2015 (“CC Act”).

This question was addressed in Pragati Constructions Consultants, where a full bench was constituted to answer the reference made by the learned Single Judge, and the reference was based on two conflicting judgments of the Division Bench in the cases ONGC v. Sai Rama Engineering Enterprises, 2023 SCC OnLine Del 63, and ONGC V. Planetcast Technologies Ltd, 2023 SCC OnLine Del 8490

In Sai Rama Engineering, the Delhi High Court held that for a petition to be considered as non-est, the Court must conclude that it cannot be regarded as an application for setting aside the arbitral award. For a petition under Section 34, the Court is required to assess the grounds of challenge, and without a copy of the award, it is difficult to appreciate such grounds. The Court further noted the importance of the material procedural formalities, such as the application being signed by the parties and the application being affixed by an affidavit and statement of truth by virtue of Order XI of CPC and Section I of the CC Act authenticates such petitions. However, while these defects, such as the absence of an affidavit or Statement of Truth, are material, the Court held they were curable and did not nullify the petition altogether.

In contrast, the division bench in Planetcast Technologies adopted a stricter view and observed that petitions under Section 34 of the Act fell within the jurisdiction of the Commercial Division of the High Court, making the CC Act applicable to such petitions. The pre-requisite of filing a statement of truth has been emphasized in Order XI Rule 1 of the CPC as amended under the CC Act.  Departing from the view that such defects are merely procedural requirements, the Court examined this issue through the lens of an attempt made by the parties to pause the limitation period and noted that the petitioner cannot claim the benefit of a non-est filing and later make a proper filing after the limitation period has lapsed.

A similar approach was adopted by the Division bench of Delhi High Court in Delhi Development Authority v. Durga Construction Co,  2013 SCC OnLine Del 4451, where it was held that petitions which are hopelessly inadequate or lacking in substance may be treated as non-est, and curing defects later cannot retrospectively validate the original filing. This non-application of the time limit on re-filing was also observed by the Supreme Court in Northern Railway v. Pioneer Publicity Corporation Pvt. Ltd. (2017) 11 SCC 234, further clarified that re-filing does not amount to fresh institution but will be termed as re-filing.

The non-applicability of Section 34(3) limitation to re-filing leads us to a fundamental question wherein the defects, such as non-filing of the statement of truth and arbitral award, are considered as a curable defect for the purposes of re-filing, or whether such a petition would be rendered as non-est and the limitation period would be stringent, not giving the Court a chance to condone or allow the re-filing beyond the prescribed period.

III. Observations of the Court

The Court in Pragati Constructions Consultants observed two key principles applicable to a Section 34 petition, firstly,arbitration being an ADR mechanism and has to be disposed expeditiously which is also embodied in Section 5 and Section 34(3) of the Act. This object cannot be undermined by allowing petitions that fail to meet basic filing requirements to stall the limitation period from running. Secondly, while Section 34 provides a sole remedy for challenging an arbitral award, mere technicalities should not affect the substantive rights of the parties. The Court further noted that even in the absence of expressly stated mandatory requirements, a petition cannot be made in any form or manner, leaving the Court helpless.

Terming the non-filing of an arbitral award a fatal defect, the Court held that filing of an arbitral award is not a mere procedural requirement but an essential one, the absence of which renders the application “non-est” in the eyes of law. The Court reasoned that without a copy of the award, it becomes impossible for the Court to appreciate the grounds of the challenge.

Regarding the non-filing of the Statement of Truth, the Court held that whether such an omission renders a Section 34 petition defective depends on the facts of each case and lies within the Court’s discretionary power. By virtue of Section 10 of the CC Act, jurisdiction is not only conferred upon the Commercial Division or Commercial Court in arbitration matters, but the procedural rules of such courts are also made applicable to arbitration-related proceedings. Accordingly, Section 16 of the CC Act read with Order VI Rule 15A of CPC applies to petitions filed under Section 34 of the Act. Applying general principles under Order VI Rule 15A of the CPC, which applies to a suit involving a commercial dispute of a specified value, the Court noted that non-filing of the statement of truth is a curable defect. However, determining the question of condonation of delay in re-filing of the application under Section 34 depends on the nature of the defect, and the Court must assess, based on the facts and circumstances of each case, whether such delay can be condoned.

IV. Way Forward

The judgment in Pragati Constructions Consultants v. Union of India underscores the pressing need for legislative clarity on procedural requirements under the Arbitration and Conciliation Act, 1996. While the Court rightly emphasized the necessity of filing a copy of the award to appreciate the grounds of challenge, its case-by-case approach to elements such as the Statement of Truth leaves significant room for judicial discretion, perpetuating uncertainty. Combined with the rigid limitation regime of Section 34(3), this uncertainty risks depriving parties of their only statutory remedy against arbitral awards on account of curable procedural lapses.

The divergence between Sai Rama Engineering and Planetcast Technologies illustrates the consequences of such ambiguity, especially given that the Delhi High Court (Original Side) Rules, 2018 do not prescribe clear procedural standards for Section 34 applications. Inconsistencies in judicial treatment raise the possibility of petitions being declared non-est, undermining predictability and access to justice.

As India aspires to be a global arbitration hub, procedural safeguards must be maintained without becoming barriers. A balanced framework is needed—one in which procedure serves the ends of justice rather than obstructs them. The legislation should therefore lay down clear, uniform procedural requirements for Section 34 petitions, closing gaps that currently allow conflicting interpretations, and ensuring the Arbitration Act remains a complete code in itself.

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^[1] Shivanshi Shukla is a fourth-year law student from the Institute of Law Nirma University, Ahmedabad (ILNU).