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[Cites 11, Cited by 0]

Delhi High Court - Orders

Vikas Verma vs G.N.C.T Of Delhi on 31 May, 2022

Author: Neena Bansal Krishna

Bench: Neena Bansal Krishna

                          $~13
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      ARB.P. 774/2020
                                 VIKAS VERMA                                               ..... Petitioner
                                                    Through:     Ms. Stuti Jain & Mr. S.K. Jain,
                                                                 Advocates.
                                                    versus

                                 G.N.C.T OF DELHI                                        ..... Respondent
                                                    Through:     Mr. Sarthak Chiller & Dr. Vikrant
                                                                 Narayan Vasudev, Advocates for
                                                                 DSIIDC.
                                 CORAM:
                                 HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
                                                    ORDER

% 31.05.2022

1. This petition has been filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as „A&C Act, 1996‟) by the petitioner seeking appointment of an independent and impartial arbitrator to decide the disputes that have arisen between the parties.

2. It is stated that the respondent vide letter dated 04th November, 2011 awarded the work for „development works‟ in unauthorized colonies SH:

C/o Roads & S.W. drains at Inder Enclave F-Block in Kirari A.C. to the petitioner and the parties consequently entered into an agreement. The stipulated date on start and completion of the work was 13th November, 2011 and 12th November, 2012 respectively. The petitioner completed the work to the entire satisfaction of the respondent on 24 th April, 2013. The respondent, however, vide Letter dated 22nd December, 2014 debarred the petitioner for two years from further tendering and vide Letter dated 26 th Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 1 of 16 Signing Date:09.06.2022 19:05:28 February, 2015 blacklisted the petitioner.

3. Aggrieved by the said orders, the petitioner filed a Suit bearing No. 58552/2016 for declaration and mandatory injunction, before the District Court to declare the Letters dated 22nd December, 2014 and 26th February, 2015 as illegal and void ab initio. The District Court vide Order dated 07th January, 2019 held the two letters to be null and void.

4. The respondent then unilaterally prepared the final bill of the petitioner but made no payment to the petitioner despite repeated requests. Therefore, the petitioner filed a suit, bearing Suit No. 57414/2015 for the recovery of the amount in the High Court of Delhi, which was transferred to the Patiala House District Court. The learned Trial Court vide order dated 23rd February, 2019 directed the parties to take recourse to arbitration in terms of the Arbitration clause in the Agreement between the parties.

5. Shri Satyender Singh, who had been engaged by the petitioner only for the purpose of filing the suit, approached the Managing Director and the Project Director of Delhi State Industrial and Infrastructure Development Corporation Limited (hereinafter referred to as „DSIIDC‟) vide Letter dated 13th August, 2019 to appoint an Arbitrator to adjudicate the disputes between the parties without knowledge and consent of the petitioner, even though the Managing Director was not competent to appoint an Arbitrator in terms of Clause 25 of the Agreement.

6. Shri Satyender Singh, erstwhile counsel for the petitioner, again without consent of the petitioner, wrote the Letter dated 12 th September, 2019 to the S.E./DSIIDC for appointment of an Arbitrator in respect of the claims in regard to final bills for Rs. 39,48,521/-, damages to the tune of Rs. 5,00,000/- with interest and cost of litigation but failed to refer all other Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 2 of 16 Signing Date:09.06.2022 19:05:28 claims of the petitioner. Shri Satyender Singh, the then counsel for the petitioner, was not aware about the withheld amount and security deposit amount deposited by the petitioner, which he was also entitled to recover from the respondent.

7. The respondent issued a letter dated 04th September, 2019 asking the petitioner to submit his claims. The petitioner in compliance to the instructions so received, submitted his claims vide letter dated 09th October, 2019 and requested the S.E.U./C-II/DSIIDC to resolve the disputes under Clause 25 of the Agreement.

8. The persona designate i.e., Chief Engineer-I, Shri Sunil Tyagi in retaliation to the petitioner‟s request to the S.E. ignored the claims of the petitioner as submitted vide Letter dated 09th October, 2019 and appointed Shri S.B. Jhamb as the Sole Arbitrator vide Letter dated 25 th October, 2019 and referred the claims as raised by Shri Satyender Singh on behalf of the petitioner vide letter dated 12th September, 2019 to the learned Sole Arbitrator. However, the petitioner had not written the Letter dated 12 th September, 2019 as was claimed by the Chief Engineer-I, but it was sent by the Advocate without any authority. It is claimed that the appointment made by the Chief Engineer-I was not only premature but also against the terms of the Agreement.

9. The petitioner again vide Letter dated 08th November, 2019 submitted his claims and requested the Chief Engineer, DSIIDC to resolve the disputes under Clause 25 of the Agreement, as the Superintending Engineer had failed to do so. In response thereto, the respondent vide letter dated 03 rd December, 2019 informed the Petitioner that "It is to be noted that we are not admitting any of your claims or additional claims at this stage on above Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 3 of 16 Signing Date:09.06.2022 19:05:28 said letters under reference as the case is under Arbitration. However, you may be produce any facts during the Arbitration proceedings."

10. In the meanwhile, during the Arbitration proceedings, a Declaration dated 08th November, 2019 was given by the learned Arbitrator but the Arbitrator failed to disclose his appointment as Arbitrator by this Court in the matter of Ramkesh Dabas vs. The Managing Director, DSIIDC in Arbitration Petition No. ARB.P.643/2017 decided on 02nd January, 2018 and the Award published on 01st December, 2018. The petitioner came to know about this fact only through his present advocate.

11. The petitioner during the pendency of the proceedings before the learned Arbitrator, also filed two Applications under Section 23(3) of the A&C Act, 1996 on 17th December, 2019 and 10th February, 2020 respectively. The petitioner also filed an Application under Section 16 of the A&C Act, 1996 dated 04th March, 2020 challenging the jurisdiction of the Arbitral Tribunal as it was constituted without following mandatory provision as contained in Clause 25 of the Agreement.

12. The petitioner also wrote a Letter dated 11th July, 2020 informing the Chief Engineer that the appointment of Arbitrator made by him was illegal as it was not in accordance with the procedure provided under Clause 25 of the Agreement and without any request for appointment of the Arbitrator to the Chief Engineer. However, if his entire claim as stated in his letter dated 08th November, 2019 was referred, he would accept the appointment of the learned Arbitrator.

13. The Chief Engineer responded vide letter dated 14th July, 2020, informing that the matter was already pending and he could not comment on the letter. It is further submitted by the petitioner that at the time of writing Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 4 of 16 Signing Date:09.06.2022 19:05:28 the Letter dated 11th July, 2020, he was not aware that the declaration made by the learned Arbitrator on 08th November, 2019 was false.

14. The learned Arbitrator vide a detailed order dated 10th August, 2020 decided both the applications under Section 23(3) of the A&C Act, 1996 holding that it would arbitrate only the disputes which were referred to him by the Appointing Authority and also suggested to the petitioner to approach the Appointing Authority. The petitioner accordingly vide Letter dated 21 st September, 2020 invoked Clause 25 of the Agreement and made a request to the Chief Engineer for appointment of the Arbitrator. The request for appointment of the Arbitrator was declined by the Executive Engineer (CD-06) vide his Letter dated 21st September, 2020 and he refused to refer the remaining claims of the petitioner to the Arbitrator.

15. A prayer is, therefore, made on behalf of the petitioner to appoint an independent and impartial arbitrator to decide the disputes between the parties.

16. The respondent in its reply took the preliminary objections that the claim raised by the petitioner was barred by limitation and delay by way of waiver and estoppel. The Fourth and Final Bill was submitted by the petitioner on 11th December, 2014 (19 months and 13 days after the date of physical completion of project on 24th April, 2013) for an amount of Rs.39,48,521/-. No additional claim was raised from 2013 till 2019, when for the first time, a claim was made for Rs.67,00,000/- and thereafter for approximately Rs.7,00,00,000/-. Further, the petitioner had given an Undertaking in his application for extension of time that he would not claim anything extra on account of extension of time. It is asserted that the claims now being raised, are not maintainable. The petitioner himself had served a Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 5 of 16 Signing Date:09.06.2022 19:05:28 Notice dated 12th September, 2019 enumerating claims for a total of Rs. 67,62,266/- and requesting for appointment of an Arbitrator. The petitioner cannot now claim that he never made a request for the appointment of an Arbitrator.

17. It is claimed that the present petition is to subvert and reagitate issues, which have already been decided by way of order on Application under Section 16(3) and Section 33 and Section 23(3) of the A&C Act, 1996 and instead of challenging those orders, the petitioner has filed the present application.

18. In the Order dated 10th February, 2020, it was recorded that both the parties consented for appointment of an Arbitrator in the matter and no objection was taken by the petitioner. The petitioner had not challenged the appointment of learned Arbitrator till the learned Arbitrator gave an indication that the amendment to the claims as requested by the petitioner, cannot be allowed on account of limitation, waiver and estoppel.

19. All the assertions made by the petitioner are denied. It is submitted that the learned Arbitrator has been appointed in accordance with the procedure detailed in Clause 25 of the Agreement. It is also asserted that the declaration given by the learned Arbitrator was not false in any manner. The respondent No. 2-Shri R.K. Goel was on the panel of the Arbitrators of respondent No. 1-DSIIDC and had been an Arbitrator for respondent No.1 on other occasions, but this in itself would not ipso facto be sufficient to impugn the impartiality and the objectivity of the respondent No.2 as an Arbitrator. Reliance has been placed on Datar Switchgears Ltd. vs. Tata Finance Ltd. MANU/SC/0651/2000. It is submitted that the petition is without merit and is liable to be dismissed.

Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 6 of 16 Signing Date:09.06.2022 19:05:28

20. Submissions heard.

21. The main challenge in the present case essentially is on the grounds:

A. Not following the procedure for appointment of the Arbitrator in terms of the Clause 25, and not taking the consent of the petitioner for appointment of the Arbitrator. B. Giving of a false Declaration under Section 12(5) of the A&C Act,1996 by the Arbitrator, as he failed to disclose that he had been an Arbitrator in the matter of DSIIDC or in other matter.

22. The respondent on the other hand, has claimed that the disputes are barred by Limitation.

A. Not following the procedure for appointment of the Arbitrator in terms of the Clause 25 of the Agreement:

23. While the petitioner has claimed that he had made the request for appointment of Arbitrator vide Letter dated 09th October, 2019 and 08th November, 2019 while the appointment of Arbitrator has been made on the Letter dated 12th September, 2019 which was written by his counsel who had no authority.

24. Learned counsel on behalf of the respondent has stated that the letter dated 12th September, 2019 for appointment of Arbitrator had been submitted by the petitioner himself and the appointment of the Arbitration has been done in accordance with the procedure prescribed under Clause 25 of the Agreement.

25. To answer this issue, it would be necessary to reproduce the Arbitration Clause 25 of the Agreement, which reads as under:

Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 7 of 16 Signing Date:09.06.2022 19:05:28
"Clause 25 Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter.:
(i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for written instruction or decision. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter.

If the Superintending Engineer fails to give his instructions or decision in writing within the aforesaid period of if the contractor is dissatisfied with the instructions or decision of the Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer's decision, appeal to the Chief Engineer who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Chief Engineer shall give his decision within 30 days of receipt of contractor's appeal. If the contractor is dissatisfied with his decision the contractor may within 30 days from the receipt of the decision give notice to the Chief Engineer for appointment of Arbitrator on prescribed proforma as per Appendix XXV failing which the said decision shall be final, binding and conclusive and not referable to adjudication by the Arbitrator.

(ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work, or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General of Works, of CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left his Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 8 of 16 Signing Date:09.06.2022 19:05:28 predecessor. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection by the Chief Engineer of the appeal.

(iii) It is also a term of this contract that no person, other than a person appointed by such Chief Engineer CPWD or Additional Director General or Director General of works, CPWD as aforesaid, should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all.

(iv) It is also a term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer-in-charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims.

(v) The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modifications or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause.

(vi) It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs. 1,00,000/-, the arbitrator shall give reasons for the award.

It is also a term of the contract that if any fees are payable to the arbitrator, these shall be paid equally by both the parties. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any part thereof shall be paid and fix or settle the amount of cost to be so paid "

Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 9 of 16 Signing Date:09.06.2022 19:05:28

26. Sub-clause 2 of the Clause 25 thus, provides that in case of disputes or differences, they shall be referred for adjudication through Arbitrator by the Sole Arbitrator appointed by the Chief Engineer, CPWD In-charge of the Works and if he is not available then by Additional Director General of the concerned region of CPWD, if he is also not available then by Director General of Works, CPWD. It also provides that the Arbitrator shall be deemed to have entered on the reference on the date, he issues Notices to both the parties calling upon them to submit their statement of claims and counter statement of claims.

27. The petitioner himself has annexed a letter dated 04 th September, 2019 written by the respondent to the petitioner Sh. Vikas Verma in regard to the appointment of Arbitrator. It is mentioned in the letter that a representation dated 30th August, 2019 was received through Sh. Satyender Kumar Singh Advocate making a request for appoint of Arbitrator under Clause 25 of the Agreement. A letter dated 12th September, 2019 was written by Sh. Satyender Singh, Advocate for and on behalf of the petitioner requesting the Superintending Engineer to refer the disputes mentioned therein in respect of the final bill, interest, damages and cost of litigation to arbitration in terms of Clause 25 of the Agreement. The respondent in response to the letter dated 12th September, 2019, appointed Sh. S.B. Jhamb as Sole Arbitrator about which due intimation was given to the petitioner vide letter dated 25th October, 2019.

28. The petitioner gave another Notice dated 09th October, 2019 under Clause 25 of the Agreement raising various claims (in addition to those mentioned in earlier letter dated 12th September, 2019) were raised with a request for appointment of the Arbitrator. The respondent vide letter dated Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 10 of 16 Signing Date:09.06.2022 19:05:28 04th November, 2019 informed that the Arbitrator has already been appointed on the request of his letter received through his Advocate Sh. Satyender Kumar Singh.

29. From the various correspondences exchanged between the parties it is evident that the disputes arose between the parties in regard to final bills and other claims arising out of the Work contract that was awarded to the petitioner, who in accordance with sub-section 2 of Clause 25 wrote a letter dated 12th September, 2019 through his advocate and thereafter, he himself wrote letter dated 09th October, 2019 invoking Arbitration Clause. The appointment of Arbitrator has been done by The Chief Engineer on the request of the petitioner. The request of the petitioner to the Chief Engineer vide letter dated 08th November, 2019 to refer his additional claims to the arbitrator were responded by the Chief Engineer vide letter dated 03 rd December, 2019 informing that they were not admitting any of the additional claims at that stage as the case was in arbitration and the facts in regard to additional claims may be produced before the Arbitrator. The procedure as provided in Clause 25 of the Agreement, was duly followed with which the petitioner had no grievance but it is only when the Arbitrator indicated that the amendments of claims may not be allowed on account of the limitation and waiver, the petitioner raised an objection to the appointment of arbitrator. In fact, in order dated 10 th February, 2020 it was duly recorded that both the parties have consented for the appointment of the arbitrator and no objection was taken by the petitioner. It is evident that the procedure for appointment of arbitrator as contained in Clause 25 was duly followed.

30. The assertion of the petitioner that the letter dated 12 th September, Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 11 of 16 Signing Date:09.06.2022 19:05:28 2019 was sent by his advocate without his permission is clearly an afterthought since the letter dated 04th September, 2019 which was written by the respondent to the petitioner clearly indicated that a representation dated 13th August, 2019 had been received for invocation of arbitration from the petitioner through his advocate Sh. Satyender Kumar Singh. It indicates that the petitioner was aware of the letter being written for and on his behalf by his advocate Sh. Satyender Kumar Singh to which no objection was taken. Rather, after receiving this letter dated 04 th September, 2019, the subsequent letter dated 12th September, 2019 was written again through Sh. Satyender Kumar Singh, advocate. The assertion that letter dated 12 th September, 2019 was sent by Sh. Satyender Kumar Singh, advocate without his authority is only an attempt to somehow bring his additional claims before the Arbitrator. The challenge to the appointment of the Arbitrator on the ground of non-compliance of Clause 25 is not tenable.

B. Giving of a false Declaration under Section 12(5) of the Arbitration & Conciliation Act, 1996 by the Arbitrator, as he failed to disclose that he had been an Arbitrator in the matter of DSIIDC or in other matter.

31. It is submitted that in the Declaration under Section 12(5) of the A&C Act, 1996 given by the learned Arbitrator, he failed to disclose about being an Arbitrator in another matter pertaining to DSIIDC.

32. It is sought to be clarified on behalf of the respondent that the learned Arbitrator had been appointed by the orders of this Court and not by the respondent No.1 and that no bias or prejudice has been shown on the part of the learned Arbitrator. It is further stated that since the learned Arbitrator Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 12 of 16 Signing Date:09.06.2022 19:05:28 has already been appointed, his mandate cannot be terminated under the provisions of Section 11(6) of the A&C Act, 1996. The objection taken by the petitioner is asserted to be without merit.

33. Section 12 of the A&C Act, 1996 provides for the grounds of challenge. It reads as under :

"12.Grounds for challenge--[(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,--
(a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and
(b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.

Explanation1.--The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.

Explanation 2.--The disclosure shall be made by such person in the form specified in the Sixth Schedule.] (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties sin writing any circumstances referred to in sub- section (1) unless they have already been informed of them by him.

(3) An arbitrator may be challenged only if--

(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or

(b) he does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made. [(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator:

Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 13 of 16 Signing Date:09.06.2022 19:05:28 express agreement in writing.]"

34. Clause 1(a) of Section 12 of the A&C Act,1996 makes it mandatory to disclose in writing existence of either direct or indirect of any past or present relationship with any of the parties or in relation to the subject matter of the dispute. It is not denied that the Sole Arbitrator Sh. S.B. Jhamb had been earlier appointed as an Arbitrator in the matter of Ramkesh Dabas Vs. Managing Director (DSIIDC) in Arbitration Petition No.ARB.P.643/2017 in which the Award was made on 2nd January, 2018 and published on 1st December, 2018. The Sole Arbitrator was under an obligation to disclose having been an arbitrator for the respondent in earlier arbitration proceedings. Merely because he was appointed by the Court, would not alter the position of his having earlier been an arbitrator for DSIIDC. Further, merely because the petitioner participated in the arbitration proceedings before the learned Sole Arbitrator would not be sufficient to claim a waiver. Section 12(5) of the Act required "express agreement in writing" made "subsequent to disputes having arisen" which must reflect awareness of the parties about the facts which may result in invalidation of the learned Arbitrator. Unless an express agreement to this effect is shown, there cannot be any claim of implied consent or waiver as has been observed in JMC Projects (India) Ltd. Vs. Indure Pvt. Ltd. 2020 SCC Online Delhi 1950. A conscious intention of the parties to waive the applicability of this provision must be established.

35. The petitioner in the present case has specifically averred that he came to know about the earlier engagement of the learned Sole Arbitrator in the arbitration proceedings only subsequently through his present advocate.

Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 14 of 16 Signing Date:09.06.2022 19:05:28

Undeniably, there is neither any disclosure by the Sole Arbitrator nor is there any express consent on behalf of the petition to the continuation of Sh. S.B. Jhamb as the Sole Arbitrator.

36. Considering that in the present case Mr. S.B. Jhamb failed to make complete disclosures as mandated under Section 12 of the A&C Act,1996, even though inadvertently, it would amount to breach of the obligation of the learned Arbitrator under Section 12(1) A&C Act,1996, thereby invalidating his appointment. The Sole Arbitrator, therefore, stands disqualified from continuing as the Arbitrator in the present matter.

Plea of Limitation:

37. The respondent has claimed that the claims stand barred by limitation and by delay, waiver and estoppels. However, these involve mix question of fact and law which may be raised before Arbitrator.

Conclusion:

38. In view of the above discussion, the mandate of Sh. S.B. Jhamb as Arbitrator is terminated and the petition is allowed. Accordingly, Mr. Laxmi Kant Gaur, Learned District & Sessions Judge (Retired) (Mobile No.8800881765), is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.

39. This is subject to the learned Arbitrator making the necessary disclosure as required under Section 12(1) of the Arbitration & Conciliation Act, 1996 and not being ineligible under Section 12(5) of the Arbitration & Conciliation Act, 1996.

40. The parties are at liberty to approach the learned Arbitrator for further proceedings.

41. It is clarified that all rights and contentions of the parties are reserved.

Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 15 of 16 Signing Date:09.06.2022 19:05:28

42. The petition is disposed of in the aforesaid terms. All the pending applications, if any, also stands disposed of.

NEENA BANSAL KRISHNA, J MAY 31, 2022 S.Sharma/va Signature Not Verified Signed By:NIRMLA TIWARI ARB.P. 774/2020 Page 16 of 16 Signing Date:09.06.2022 19:05:28