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17 September 2021 | Larsen and Toubro Limited v. HLL Lifecare Limited | OMP (T) (Comm) 59/2021 | C Hari Shankar J | Delhi High Court | 2021 SCC OnLine Del 4465
HLL Lifecare, a government corporation, unilaterally appointed a retired Chief Engineer of the Public Works Department, Government of Maharashtra, as the sole arbitrator. Since such an arbitrator is ineligible under Section 12 (5) ACA read with the Seventh Schedule, the petitioner applied for appointment of an independent arbitrator. The application was resisted arguing that the ineligibility was waived because earlier both the parties had confirmed they had no objection to the tribunal. Then, later the petitioner consented for extension of six
months for completion of the arbitral proceedings.
Held, neither of these considerations could operate as an express agreement in writing to waive Section 12 (5) ACA. Similar contentions were rejected in JMC Projects (India) Ltd. v. Indure Pvt. Ltd., 2020 SCC OnLine Del 1950 (another Hari Shankar J’s ruling). Accordingly, held, the arbitrator is de jure rendered incapable of continuing with the arbitral proceeding.
The argument that the arbitral proceedings are in an advanced stage, and there were laches “ … unfortunately, is not available to the petitioner, in view of the statutory right conferred by Section 12(5) of the 1996 Act.”
Read the decision here.
Categories: Appointment of Arbitrators | Bharat Broadband | De Jure Ineligibility | Express Agreement in Writing | Failure or Impossibility to Act | Grounds for Challenge | Ineligibility of Arbitrator | Section 11 ACA | Section 12 (5) ACA | Section 12 ACA | Section 13 ACA | Section 14 ACA | Section 15 ACA | Seventh Schedule | Termination of Mandate and Substitution of Arbitrator | Unilateral Appointment of Arbitrator | Waiver