ORDER OCD – 36 wt. 37 IN THE HIGH COURT AT CALCUTTA (COMMERCIAL DIVISION) ORIGINAL SIDE AP-COM/12/2025 NATIONAL INSTITUTE OF TECHNOLOGY VS MERINT INDUSTRIAL INFRASTRUCTURE PRIVATE LIMITED W I T H AP-COM/715/2024 NATIONAL INSTITUTE OF TECHNOLOGY VS MERINT INDUSTRIAL INFRASTRUCTURE PRIVATE LIMITED BEFORE: THE HON'BLE JUSTICE SHAMPA SARKAR Date : 27th February 2025. APPEARANCE: Mr. Bodhisatta Biswas, Adv. Ms. Rajashree Venket Kundalia, Adv. … for petitioner. Mr. Rajarshi Dutta, Adv. Mr. Ayan Dutta, Adv. Mr. Rahul Auddy, Adv. Mr. Aditya Gooptu, Adv. …for respondent 1. AP-COM/12/2025, is an application under Section 36(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “said Act”). The petitioner prays for stay of the Award. 2. Mr. Rajarshi Dutta, learned advocate appearing for the respondent has raised an objection with regard to the maintainability of this application on the ground that the application under Section 34 of 2 the said Act being AP-COM/715 of 2024, is non-est in the eye of law. The application under Section 36(2) of the said Act, had been filed in aid of the application under Section 34 of the said Act. Unless there is a pending application under Section 34 of the said Act for setting aside the award, the question of filing an application for stay of enforcement of the said award, will not arise. 3. Mr. Dutta submits that the case status report, which is available in the website of the Calcutta High Court, Original Side, indicates that, the filing date of AP-COM/715/2024 is July 23, 2024. 4. Mr. Dutta submits that the registration date and the date of the filing are to be reckoned for the purpose of calculation the period of limitation. According to him, the last date for filing the application for setting aside the Award was July 20, 2024. The filing was not complete until the department scrutinized the entire file, pointed out the defects, allowed the party to cure the defects and finally accepted the same by allotting the registration number and the filing date. Uploading of the documents by the petitioner, scrutiny by the department, acceptance of papers and registration of the application, constitutes the entire process of filing. Thus, filing was complete on July 23, 2024 and not before the said date. 5. Mr. Dutta submits that the argument of the petitioner that once the petitioner uploads the documents in the e-portal, limitation will stop running, was fallacious. If a party, with ulterior motive, uploads incorrect documents, totally unconnected with the lis, in that event such defective filing would also be accepted as proper filing. Such, 3 cannot be the proposition of law. Thus, the requirement of the department to scrutinize, notify defects if any, allow rectification etc., are integral parts of the process of filing the petition before the High Court. Such process culminates into allotment of a filing date and registration number. 6. The Practice Directions of 2021 has been relied upon by Mr. Dutta to submit that, although, the Code of Civil Procedure, West Bengal Civil Rules and Order, Original Side and Appellate Side Rules of the High Court, apply mutatis mutandis to the Practice Directions, but if there is any conflict or inconsistency or repugnancy between the Practice Directions and the above mentioned Rules, the practice Directions shall prevail. 7. Mr. Dutta submits that even if the filing system prevailing before e- filing was introduced would arrest the limitation on the date of filing the papers before the filing department of the High Court at Calcutta, the Commercial Courts Practice Directions of 2021, has made it mandatory, that the said directions will supersede all other Rules and Orders or Procedure, with regard to filing and conduct of matters before the Commercial Division. 8. This argument of Mr. Dutta cannot be accepted by this Court. The Practice Directions of 2021 does not deal with the issue involved, i.e., computation of the period of limitation. The Practice Directions deal with identification and transfer of pending commercial disputes, forms of transfer of records, forms of pleadings, institution of suits, service of process by various modes, summoning of 4 witnesses, availing of service of experts, provisions for appeal, provisions for computerized listing, the description of cases and the protocol for conducting case management hearing. E-filing case stages as available from the website of the Original Side has been obtained by the petitioner. The sequence of filing is stated as hereunder. “ Original Side AWB20240000520C202400002 Relief Sought: Application Case Type: AP-COM NATIONAL INSTITUTE OF TECHNOLOGY VS MERINT INDUSTRIAL INFRASTRUCTURE PRIVATE LIMITED Advocate Name: RAJASHREE V KUNDALIA Barcode: WB/1419/1999 Unique ID:AWD20240000520 eFiling Case Stages: Sr.No. Case Status Date 1. Case Entry Initiated On 19-07-2024 13:38:33 2. eFile Case Final Submitted On 19-07-2024 13:48:22 Case Status In Court CIS Verified On 01-01-1970 [WBCHCO0027992024] Uploaded Pleadings: Sr.No. Document Name Document Number Upload Date Time Final Submit Date Time 1. EC COM AWB20240000520D202403008 19-07-2024 13:46:08 19-07-2024 13:48:22 9. Thus, this Court is of the view that limitation will stop running as soon as the document was presented before the appropriate department (i.e), limitation will stop running on the date the documents were uploaded in the e-portal. The moment the document was affirmed and presented before the appropriate 5 Department (by uploading in the portal upon payment of court fees), the liability of the petitioner was discharged. In this case, filing was done on July 19, 2024. The e-filing procedure requires the documents to be uploaded upon payment of Court fees. Such process amounts to presentation of the application before the proper department. 10. Upon perusal of the information downloaded from the website of the Court, this Court finds that the case entry was initiated on July 19, 2024 and the e-case final submission date was also July 19, 2024. Thus, the apprehension of Mr. Dutta that irrelevant documents could have been filed just to overcome the period of limitation and the rectification could have been done at a later date upon scrutiny, is factually incorrect. 11. Mr. Dutta submits that by a notification dated March 21, 2024, issued by the Registrar General, all concerned were notified that, unless online payment of court fees were mandatorily done through the e-pay portal, filing would not be complete. Filing number would be allotted only upon the e-filing being accepted. 12. As per law, limitation is arrested with the filing of the plaint, memorandum of appeal or application. Reference is made to the definition of ‘filing’ in Black’s Law Dictionary. Filing has been defined as the act of delivering a document to the proper officer or official for the purpose of being kept on record. A document is considered filed when it is received by the appropriate authority to be maintained as part of the official records of a court or office. 6 13. The law does not change because the e-filing platform has now been introduced. Under the Act, an application under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside an award may not be made after three months had elapsed from the date on which the party making the 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. However, if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the period of three months, it may entertain an application within a further period of thirty days, but not thereafter. 14. Thus, ordinarily, the period of limitation is three months from the date on which the party received the award and the Court can extend such time upon being satisfied that the party challenging the award had sufficient reason not to file the same within the three months period. However, the Court can extend the limitation not beyond a further period of thirty days. In total, therefore, the period of limitation for setting aside an award, upon showing good cause, is three months and thirty days from the date a party receives the award. The document which has been filed before this Court demonstrates that, steps for e-payment were initiated on July 16, 2024 and a receipt of such payment had been endorsed by the competent department on July 18, 2024. Thus, the notification of the learned Registrar General supports the case of the petitioner. 7 15. The acknowledgement of the High Court’s, Original Side with regard to the payment which was issued to the learned advocate-on-record for the petitioner is also available from the application and the date of such acknowledgement is 16th July, 2024 at 14:34:00 hrs. 16. Under such circumstances, this Court is of the view that the limitation stopped running on July 19, 2024, when the petitioner uploaded the application for setting aside the award, upon payment of court fees. 17. This is not a case where any defect was ever notified and the petitioner failed to take steps to rectify such defect. Moreover, the time spent by the department to make its scrutiny and provide the registration number, is an internal procedure of the department. If the department took longer than it was necessary for such procedure, the litigant cannot be saddled with the consequences thereof. Physical receipt and stamping of the papers cannot be taken as the filing date in respect of any e-filing. Interpreting the date supplied by the department as the date of filing, will have serious consequences. The litigant is not supposed to know the intricacies of the e-filing system nor the procedural formalities which the department of the High Court has to ensure to finally register a petition. In this digital era, it is too late in the day to claim that the e-filing of the application cannot be construed as the date of filing and it is only the physical availability of papers that should be construed as the actual date of filing. If this interpretation is given, all efforts that are being taken by the Apex Court and the other High 8 Courts in India to make the entire legal proceeding digital, will be defeated. Moreover, filling up Form A, is also a formality for entering the relevant data in the court’s records. The information on that, does not change the law relating to limitation. 18. The duty of the litigant is to file the application within the period of limitation. Filing of an application on the last day of the limitation, is also accepted as proper filing. The filing was done on July 19, 2024, and the case of Mr. Dutta is that the limitation period would end on July 20, 2024. July 20, 2024 was a Saturday. Thus, the date of filing is the date when the application was electronically uploaded. The argument of Mr. Dutta that the party filed unrelated documents or incorrect documents only to stop limitation from running, is not available in the facts of this case and the Court does not think a litigant will run the risk of filing incomplete or incorrect documents to his detriment, by paying court fees. In any event, if technical defects are detected upon scrutiny, limitation will stop running upon uploading of documents in the e-portal upon payment of court fees. The time taken for scrutiny and curing the defects pointed out by the department will be excluded. 19. Thus, the objection of Mr. Dutta is not accepted and the Court proceeds to hear and dispose of the application under Section 36(2) of the Arbitration and Conciliation Act, 1996. 20. Upon perusal of the document, this Court deems it fit to stay the award unconditionally for a period of five weeks from date and directs that, within such time the petitioner shall deposit a sum of 9 Rs.1.60 crores as security. 50% of the said amount shall be deposited in cash with the Registrar, Original Side of this Court. The Registrar, Original Side of this Court shall invest the same in an interest bearing auto renewable fixed deposit account, maintained with any Nationalised Bank. The remaining 50% shall be secured by way of a bank guarantee to the satisfaction of the learned Registrar, Original Side of this Court. The bank guarantee shall be kept renewed. If the amount, as directed, is paid within the aforementioned period of five weeks, the interim order shall continue till disposal of the application under Section 34 of the 1996 Act. 21. Accordingly, the application being AP-COM/12/2025 is disposed of. Re: AP-Com/715/2024 22. Let AP-COM/715/2024 be de-tagged from the list. (SHAMPA SARKAR, J.) sm/SN/sb/snn