Source: Delhi High Court

Introduction

Justices Suresh Kumar Kait and Neena Bansal Krishna recently held that if a party does not mention prayer in the application presented under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act), it turns the application invalid.

• Delhi High Court gave this judgment in the case of Union of India v. M/s Panacea Biotec Limited.

What is the Background of Union of India v. M/s Panacea Biotec Limited?

• The appellant filed the first petition recklessly under Section 34 of A&C Act to match the limitation period of 3 months and 30 days as mentioned in the act for filing such petition.
• The appellant omitted to mention the prayer during filing it.
• The appellant then re-filed the petition to cure the defects of the original petition.

What were the Court’s Observations?

• The court observed that a Petition under Section 34 of A&C Act without a prayer to set aside the impugned Award, cannot be considered as a valid petition as such petitions would merely amount to empty submissions without relief.
  • Without there being any Prayer, it cannot be deciphered what relief is being sought on the basis of the averments made in the Petition.
  • Thus, without seeking relief, the Petition at the outset is not maintainable rendering it to be non-est.
• The DHC held that such incomplete Petitions without a prayer clause cannot be accepted as a valid filing as the time limit for filing objections under Section 34 of the A&C Act is inelastic.
  • Thus, it is beyond any doubt that a complete petition has to be filed within this time frame of 3 months and 30 days under Section 34(3) of the Act 1996, which the appellant has failed to do.
• The court dismissed the appeal.

What are the Landmark Cases on Mentioning of Prayer in Petition?

• Trojan & Co. Ltd v. Rm. N. N. Nagappa Chettiar (1953):
  • The Supreme Court held that the prayer clause in a plaint indicates the relief that is sought by the filing party and the court is not entitled to grant a relief that was not asked for.
  • Thus, no relief can be granted without a corresponding prayer in the prayer paragraph.
• Bharat Amratlal Kothari & Anr. v. Dosukhan Samadkhan Sindhi & Ors (2010):
  • SC observed the importance of mentioning prayer to ask the relief.

What is Legal Provision Involved in the Case?

• Section 34: Application for setting aside arbitral awards.
  • (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
  • (2) An arbitral award may be set aside by the court only if-
    • (a) the party making the application [establishes on the basis of the record of the arbitral tribunal that]-
      • (i) a party was under some incapacity, or
      • (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
      • (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
      • (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration:
        • Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
      • (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Past; or
      • (b) the court finds that-
        • (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
        • (ii) the arbitral award is in conflict with the public policy of India.
        • Explanation 1.-For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,- (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.
        • Explanation 2.-For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
  • (2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence.
  • (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.
  • (4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
  • (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
  • (6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.