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12 November 2021 | Delhi Integrated Multi Modal Transit Systems Ltd. v. Delhi Jal Board | OMP (T) (COMM.) 16 of 2021 and IA No. 1482 of 2021 | Vibhu Bakhru J | Delhi High Court | 2021 SCC OnLine Del 4958
A clause in the arbitration agreement required the disputes to be referred to a sole arbitrator appointed by mutual consent. If the parties could not agree, the “arbitrator shall be nominated” by the respondent. The parties did not agree. The petitioner wrote to the respondent to “recommend and appoint” the sole arbitrator. Later, the CEO of the respondent issued an office order appointing Dr RCM, a retired civil servant, as the arbitrator.
The petitioner participated in the proceedings (pleadings were exchanged).
Later the petitioner applied to terminate the mandate.
Vibhu Bakhru J determined that because the appointment was unilateral, the mandate was required to be terminated. He said that the letters sent by the petitioner requesting for the appointment of an arbitrator do not mean that the petitioner had concurred that Dr RCM is appointed by the respondent.
Also, participation in the proceedings did not constitute waiver because Section 12 (5) ACA required express waiver in writing and, per Bharat Broadband (2019) 5 SCC 755 (where too there had been participation), the appointment was void ab initio.
Another argument on non-disclosure about the arbitrator’s appointment as a member of the district consumer forum was rejected because the arbitrator had already rejected the challenge, and the remedy was at the set-aside stage. The argument about violating service rules was not examined because “for violating the said conditions of service would follow. However, that does not mean that the mandate of the learned Arbitrator stands automatically terminated.”
Read the judgment here.
Categories: Appointment of Arbitrators | 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