O.M.P. (COMM) 367/2019 Page 1 of 20

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 27

th

March, 2026

Pronounced on: 07

th

April, 2026

+ O.M.P. (COMM) 367/2019 & I.A. 12495/2019, I.A. 12496/2019

MS. STALAGMITE INFRACON PVT . LTD. .....Petitioner

Through: Mr. Sundeep Sehgal, Adv.

Mob: 9810005572

Email: infilegal@gmail.com

versus

MS. ASHRAY HOMES BUILD WELL PVT . LTD. .....Respondent

Through: Mr. Manu Aggarwal and Ms. Ishita

Pandey, Advs.

Mob: 9810007854

Email: manu@lawoffices.com

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGEMENT

MINI PUSHKARNA, J.

I.A. 12495/2019 & I.A. 12496/2019

1. The present petition has been filed under Section 34 of the Arbitration

and Conciliation Act, 1996 (“Arbitration Act”), seeking to set aside the

impugned interim Arbitral Award dated 28

th

January, 2019, to the extent of

findings therein which are against the petitioner.

2. I.A. 12495/2019 has been filed by the petitioner seeking condonation

of delay of 30 days in filing the present petition, and I.A. 12496/2019 has

been filed seeking condonation of delay of 90 days in re-filing the present

petition.

3. The disputes between the parties herein had arisen in relation to the

Memorandum of Understanding dated 12

th

March, 2015 (“MoU”), which

O.M.P. (COMM) 367/2019 Page 2 of 20

was entered into for construction of 288 residential units at Shubh Ashray

Bhiwadi at Village Ishroda, Tehsil Tijara, Rajasthan.

4. In view of the several disputes between the parties, in terms of Clause

33 of the MoU containing an arbitration clause, the parties proceeded with

arbitration, wherein, the petitioner herein was the Claimant.

5. The impugned interim Award dated 28

th

January, 2019 came to be

passed, by way of which the learned Arbitrator partly allowed the claims of

the petitioner, along with the Counter Claims of the respondent, awarding an

amount of Rs. 6,31,674/- with 9 % simple interest per annum, in favor of the

petitioner.

6. Thus, the present petition has been filed challenging the findings of

the learned Arbitrator, to the extent of denial of claims of the petitioner, on

the ground that the impugned Award is perverse, illegal and in contravention

to the agreed terms of contract between the parties.

7. It is the case of the petitioner that there was a delay of 30 days in

initial filing of the petition, on the grounds that the Arbitrator had suo motu

divided the claims into two parts, i.e., Claims 2 to 18 and Claim 1. Since the

impugned interim Award was passed only in respect of Claims 2 to 18, the

petitioner was waiting for the Award to be passed qua the other part also.

Thus, due to no fault of the petitioner, there was a delay of 30 days in the

initial filing of the present petition.

8. Further, it is the case of the petitioner that there was a delay of 90

days in re-filing the petition, on the ground that the petitioner had been

removing defects from the bulky documents, within seven days of the same

being raised by the Registry, which took a substantial period of time,

therefore, there was a delay of 90 days in re-filing of the present petition.

O.M.P. (COMM) 367/2019 Page 3 of 20

9. Per Contra, it is the case of the respondent that the petitioner had

acted with utter lack of due diligence in removal of defects, and several of

the defects did not have anything to do with there being any bulky

documents, and could have been easily rectified by the petitioner.

10. It is also the case of the respondent that the original filing of the

petitioner was non-est, on account of the cumulative procedural defects, and

the filing was only with a view to stop the limitation period from running.

Further, no sufficient cause was shown by the petitioner to substantiate the

delay in filing of the present petition. Therefore, the present petition has

been filed with a non-condonable delay of 30 days.

11. I have heard learned counsels for the parties and perused the record.

12. At the outset, this Court notes the various dates and the details of

filing and re-filing by the petitioner, upon the objections raised by the

Registry to the present petition, on the basis of log details of filing/re-filing

provided by the Registry of this Court. The relevant information necessary

for the present adjudication is reproduced in a tabulated form, as follows:

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13. Perusal of the aforesaid tabular information demonstrates that the

petitioner has filed the present petition on the last day of filing in the

extended time period as provided by the statue.

14. As envisaged in Section 34 (3) of the Arbitration Act, a petition

challenging an arbitral award has to be filed within a period of three months

from the receipt of the award, and if sufficient cause is shown, the period

can be further extended to 30 days. Section 34 (3) of the Arbitration Act, is

reproduced as under:

“xxx xxx xxx

34. Application for setting aside arbitral award.

xxx xxx xxx

(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.

xxx xxx xxx”

O.M.P. (COMM) 367/2019 Page 12 of 20

15. The petitioner has filed the present petition beyond the statutory

period of three months. Moreover, the present petition has been filed on the

last day of filing in the extended time period, as provided by the statute.

16. Initially the present petition was filed with 701 pages on 28

th

May,

2019, to which the Registry of this Court notified 19 defects on 31

st

May,

2019. In this regard, the relevant portion of the „Log Information‟ as

provided by the Registry, is reproduced as under:

“xxx xxx xxx

xxx xxx xxx”

17. Thereafter, in the first nine re-filings of the petition by the petitioner

on 29

th

June, 2019, 5

th

July, 2019, 12

th

July, 2019, 18

th

July, 2019, 25

th

July,

2019, 01

st

August, 2019, 08

th

August, 2019, 17

th

August, 2019 and 23

rd

August, 2019, the Registry of this Court had informed and noted that the

exact number of pages initially filed, i.e., „701‟, were filed on all these

occasions as well, and that till said dates of respective re-filings, all of the

previous objections as raised in the initial filing of the petition, had not been

O.M.P. (COMM) 367/2019 Page 13 of 20

removed by the petitioner.

18. Further, the petitioner had initially filed the petition as an „Arbitration

Petition‟, which ex-facie is a glaring defect, and despite the information and

objections raised by the Registry, i.e., „File in correct category as OMP

(COMM)‟, the same was not rectified by the petitioner till the tenth re-filing

of the present petition.

19. The „Defects Information‟, showing the details of the defects marked

by the Registry of this Court and various re-filings done by the petitioner,

also shows that the first date on which any defect was removed by the

petitioner was on 03

rd

September, 2019, that too the petition was then filed

with „2622‟ pages in comparison to the „701‟ pages filed earlier. Thus, it is

evident that the same petition, with exactly the same number of pages and

same defects, was filed on nine occasions over a period of three months by

the petitioner, merely to create pretence of re-filing, within the period of

seven days, from the date of the objections raised by the Registry.

20. It is to be noted that the only reasoning provided by the petitioner for

seeking condonation of delay of thirty days in filing the present petition, is

that the petitioner was awaiting the Award for the other claim raised by the

petitioner, on account of the impugned Award being an interim Award.

21. Even if it is taken that the impugned Award is an interim Award,

nevertheless, the aforesaid contention cannot be considered to be an

acceptable justification for condoning delay, as the impugned Award had

decided all but one of the claims raised by the petitioners, which decided the

disputes substantially between the parties.

22. It is settled law that even if the impugned award is an interim award,

if the same decides a substantial issue between the parties, the said award

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becomes amenable to challenge under Section 34 of the Arbitration Act, in

effect, imposing the period of limitation as is applicable to any award which

is challenged under Section 34 of the Arbitration Act. Thus, the Supreme

Court in the case of Indian Farmers Fertilizer Cooperative Limited Versus

Bhadra Products, (2018) 2 SCC 534, held as follows:

“xxx xxx xxx

13. In Satwant Singh Sodhi v. State of Punjab [Satwant Singh

Sodhi v. State of Punjab, (1999) 3 SCC 487], an interim award in

respect of one particular item was made by the arbitrator in that case.

The question before the Court was whether such award could be made

the rule of the Court separately or could be said to have been

superseded by a final award made on all the claims later. This Court

held: (SCC p. 491, para 6)

“6. The question whether interim award is final to the extent it

goes or has effect till the final award is delivered will depend upon the

form of the award. If the interim award is intended to have effect only

so long as the final award is not delivered it will have the force of the

interim award and it will cease to have effect after the final award is

made. If, on the other hand, the interim award is intended to finally

determine the rights of the parties it will have the force of a complete

award and will have effect even after the final award is delivered.

The terms of the award dated 26-11-1992 do not indicate that the

same is of interim nature.”

……….

It is, thus, clear that the first award that was made that finally

determined one issue between the parties, with respect to Item 1 of the

claim, was held to be an interim award inasmuch as it finally

determined Claim 1 between the parties and, therefore, could not be

re-adjudicated all over again.

14. In McDermott International Inc. v. Burn Standard Co. Ltd.

[McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11

SCC 181], under the heading “validity of the partial award”, this

Court held: (SCC pp. 211-12, paras 68-70)

“……….

70. We cannot also lose sight of the fact that BSCL did not raise

any objection before the arbitrator in relation to the jurisdiction of the

arbitrator. A ground to that effect has also not been taken in its

application under Section 34 of the Act. We, however, even otherwise

O.M.P. (COMM) 367/2019 Page 15 of 20

do not agree with the contention of Mr Mitra that a partial award is

akin to a preliminary decree. On the other hand, we are of the

opinion that it is final in all respects with regard to disputes referred

to the arbitrator which are subject-matters of such award. We may

add that some arbitrators instead and in place of using the expression

“interim award” use the expression “partial award”. By reason

thereof the nature and character of an award is not changed. As, for

example, we may notice that in arbitral proceedings conducted under

the Rules of Arbitration of the International Chamber of Commerce,

the expression “partial award” is generally used by the arbitrators in

place of interim award. In any view of the matter, BSCL is not in any

way prejudiced. We may state that both the partial award and the

final award are subject-matter of challenge under Section 34 of the

Act.”

15. Tested in the light of the statutory provisions and the case law

cited above, it is clear that as the learned arbitrator has disposed of

one matter between the parties i.e. the issue of limitation finally, the

award dated 23-7-2015 is an “interim award” within the meaning of

Section 2(1)(c) of the Act and being subsumed within the expression

“arbitral award” could, therefore, have been challenged under

Section 34 of the Act.

xxx xxx xxx”

(Emphasis Supplied)

23. Likewise, in the case of State of Arunachal Pradesh Versus Damani

Constructions Co., (2007) 10 SCC 742, Supreme Court clarified that the

limitation period qua an interim award operates in terms of Section 34(3) of

the Arbitration Act, where the said award is final in respect of the claims

adjudicated therein. Accordingly, the plea of the petitioner that it was

awaiting the award in other part of the claim raised by it, is wholly

unacceptable, and does not provide a valid explanation for delay in filing the

petition.

24. In relation to the aspect of condonation of delay in re-filings, the

petitioner has sought to justify the delay on the ground that the documents

were bulky and that there were many defects in the petition. However, mere

fact that the documents were bulky/ voluminous, is not a justifiable ground

O.M.P. (COMM) 367/2019 Page 16 of 20

in seeking condonation of delay, especially, considering the fact that the

petition was re-filed by the petitioner time and again, without removing any

defects. The plea raised by the petitioner in this regard is completely

frivolous, and is untenable.

25. Pertinently, despite the defects being first notified on 31

st

May, 2019,

the petitioner made no attempts to remove even the most basic defects such

as correcting the case category, till 5

th

September, 2019, which evidently had

nothing to do with bulky documents.

26. Further, when re-filing was done by the petitioner for the eleventh

time on 3

rd

September, 2019, „2622‟ pages were filed by the petitioner, in

comparison to the initial „701‟ pages which were filed on 28

th

May, 2019,

i.e., at the time of first filing. This variance in the number of pages in the

initial and subsequent filings, unequivocally brings forth that the initial

filing by the petitioner, and that too on the last day of the outer limit as

provided in the statute, was merely an attempt by the petitioner to

circumvent the rigors of limitation.

27. It is pertinent to note that the defects in the petition were ultimately

removed by the petitioner only when the petition was re-filed for the

fifteenth time on 6

th

September, 2019. Further, on the said date, i.e., 06

th

September, 2019, at the time of the fifteenth re-filing of the petition,

hundred days had already passed, counted from the last day of extended

filing as per the statute, i.e., 28

th

May, 2019.

28. Such conduct of the petitioner constitutes a flagrant misuse and abuse

of the process of Court, and demonstrates that the petitioner acted with

willful neglect, in reckless disregard to the timelines set out for removing the

defects and objections, as raised by the Registry of this Court.

O.M.P. (COMM) 367/2019 Page 17 of 20

29. From the aforesaid narrative, it is evident that the petitioner has been

grossly negligent in filing the present petition belatedly on the last day of the

extended outer limit as provided by the statute, and in re-filing the petition

without removing the defects in the petition. No proper or justifiable reasons

have been advanced by the petitioner for delay in filing and re-filing of the

present petition. The reasons and explanation given by the petitioner for

delay in filing and re-filing, in that the record was voluminous or that the

petitioner was waiting for passing of the award in another part of the

petitioner‟s claim, are far from satisfactory and woefully inadequate.

30. The period of limitation as prescribed under Section 34 (3) of the

Arbitration Act is strict and inflexible. The statutory scheme unequivocally

provides that no party can file a petition under Section 34 of the Arbitration

Act, beyond the period of three months as provided therein, except where

the Court is satisfied that sufficient cause has been shown and in that

eventuality, a Court may entertain the petition for a further period of 30

days, but not thereafter. Thus, it is clear that as per the statutory scheme, no

petition can be entertained under Section 34 of the Arbitration Act, beyond

the outer limit of further extended period of thirty days after expiry of three

months from the date of receipt of the award.

31. Considering the inelastic period of limitation under Section 34 (3) of

the Arbitration Act, it is imperative that a party gives sufficient cause for

delay in filing and re-filing and would have to show that the delay was

occasioned for reasons beyond the control of the said party, despite due

diligence.

32. The aspect of „sufficient cause‟ requires that a party should not have

acted in a negligent manner or there was a want of bona fide on its part in

O.M.P. (COMM) 367/2019 Page 18 of 20

view of the facts and circumstances of a case, or it cannot be alleged that a

party has „not acted diligently‟ or „remained inactive‟. Thus, the Supreme

Court in the case of Basawaraj and Another Versus Special Land

Acquisition Officer, (2013) 14 SCC 81, held as follows:

“xxx xxx xxx

9. Sufficient cause is the cause for which the defendant could not be

blamed for his absence. The meaning of the word “sufficient” is

“adequate” or “enough”, inasmuch as may be necessary to answer

the purpose intended. Therefore, the word “sufficient” embraces no

more than that which provides a platitude, which when the act done

suffices to accomplish the purpose intended in the facts and

circumstances existing in a case, duly examined from the viewpoint

of a reasonable standard of a cautious man. In this context,

“sufficient cause” means that the party should not have acted in a

negligent manner or there was a want of bona fide on its part in

view of the facts and circumstances of a case or it cannot be alleged

that the party has “not acted diligently” or “remained inactive”.

However, the facts and circumstances of each case must afford

sufficient ground to enable the court concerned to exercise

discretion for the reason that whenever the court exercises

discretion, it has to be exercised judiciously. The applicant must

satisfy the court that he was prevented by any “sufficient cause”

from prosecuting his case, and unless a satisfactory explanation is

furnished, the court should not allow the application for

condonation of delay. The court has to examine whether the mistake

is bona fide or was merely a device to cover an ulterior purpose.

xxx xxx xxx”

(Emphasis Supplied)

33. In the present case, the petitioner has failed to give any plausible

explanation and justification, which can be termed as a „sufficient cause‟.

Mere bulky record or waiting for award in other claims to be passed, can

hardly be countenanced as a „sufficient cause‟ for condoning delay,

especially, in cases governing Section 34 (3) of the Arbitration Act, wherein,

the limitation period has been held to be strict and inflexible by Courts, time

and again.

O.M.P. (COMM) 367/2019 Page 19 of 20

34. Due to blatant negligence and want of diligence during the course of

the filing and re-filing, the petitioner has failed to establish „sufficient

cause‟, to warrant the invocation of discretionary jurisdiction of this Court to

condone the delay in filing and re-filing of the present petition.

35. In this regard, reference may be made to the judgment in the case of

Shivamma (Dead) by Lrs Versus Karnataka Housing Board and Others,

2025 SCC OnLine SC 1969, wherein, while dealing with the aspect of

„sufficient cause‟, the Supreme Court has held as follows:

“xxx xxx xxx

125. The expression “sufficient cause” is not itself a loose panacea

for the ill of pressing negligent and stale claims. The expression is to

be construed with justice-oriented flexibility so as not to punish

innocent litigants for circumstances beyond their control.

126. Courts must not condone gross negligence, deliberate inaction,

or casual indifference, for to do so would undermine the

maxim interest reipublicae ut sit finis litium and destabilise the

certainty that limitation law seeks to secure.

127. The expression “sufficient cause” must be construed in a

manner that advances substantial justice while preserving the

discipline of limitation. The courts are not to be swayed by sympathy

or technical rigidity, but rather by a judicious appraisal of whether

the applicant acted with reasonable diligence in pursuing the remedy.

Where explanation is bona fide, plausible, and consistent with

ordinary human conduct, courts have leaned towards condonation.

Where negligence, want of good faith, or a casual approach is

discernible, condonation has been refused.

xxx xx xxx

235. An application seeking condonation of delay is to be decided

only within the parameters laid down by this Court. In case there

was no sufficient cause to prevent a litigant to approach the court on

time condoning the delay without any justification, on lofty ideals

amounts to passing an order in violation of the statutory provisions

and it tantamounts to showing utter disregard to the statute.

xxx xxx xxx

259. We are of the view that the question of limitation is not merely a

O.M.P. (COMM) 367/2019 Page 20 of 20

technical consideration. The rules of limitation are based on the

principles of sound public policy and principles of equity. We should

not keep the „Sword of Damocles‟ hanging over the head of the

respondent for indefinite period of time to be determined at the

whims and fancies of the appellants.

xx xxx xxx”

(Emphasis Supplied)

36. Accordingly, in the absence of any reasons in the applications for

condonation of delay in filing and re-filing the present petition, which can be

termed as „sufficient cause‟, there is no occasion for this Court to exercise

its discretion to condone the delay in the present case.

37. Further, considering the facts and circumstances of the present case,

even on the parameters of „non-est‟ filing, the petition is liable to be

dismissed. The defects in the present petition, when cumulatively

considered, render the present petition as non-est.

38. In the light of the above discussion, this Court finds no merit in the

applications seeking condonation of delay in filing and re-filing the present

petition. The same are accordingly dismissed.

39. Consequently, the present petition stands dismissed, as barred by

limitation.

MINI PUSHKARNA

(JUDGE)

APRIL 07, 2026/SK