Delhi District Court
Bharat Sanchar Nigam Limited vs M/S Aksh Optifibre Limited on 23 February, 2026
IN THE COURT OF SH. PULASTYA PRAMACHALA
DISTRICT JUDGE, (COMMERCIAL COURT)-01,
PATIALA HOUSE COURT, NEW DELHI
Sl. INDEX
No. HEADINGS Page Nos.
1. Memo of Parties 2
2. Description of case 2
3. Brief Facts of the Case 2-3
4. Grounds of Objections/Challenge 3-4
4. Reply filed by the respondent 4-5
5. Arguments of Petitioner 5-6
6. Arguments of Respondent 6-8
7. Appreciation of arguments, facts and law 8-17
8. Decision 18
Digitally signed
by PULASTYA
PRAMACHALA
PULASTYA
PRAMACHALA Date:
2026.02.23
15:28:00
+0530
OMP (COMM.) No. 244/2019 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page No.1 of 18 Patiala House Court, New Delhi
OMP (COMM). 244/2019
In the Matter of: -
Bharat Sanchar Nigam Limited
Having its registered office at:
Bharat Sanchar Bhawan,
HC Mathur Lane, Janpath,
New Delhi-110001.
...Petitioner
Versus
M/s Aksh Optifibre Limited
J1/1, B-1 Extension, MCIE,
Mathura Road, New Delhi-44.
... Defendant
Date of Institution : 24.12.2019
Arguments heard on : 12.02.2026
Decided on : 23.02.2026
Decision : Petition is dismissed.
JUDGMENT
DESCRIPTION OF CASE
1. Present petition under Section 34 of the Arbitration and Conciliation Act, 1996, has been filed by petitioner seeking setting aside of the Arbitral Award dated 22.09.2019, passed by Ld. Sole Arbitrator Sh. A.K. Gupta.
BRIEF FACTS OF THE CASE
2. Brief facts of the case as set up by petitioner are that, petitioner vide notice no. BB/11-3/NIB II/P2.2/CDN/58 dated 19.09.2007, invited requests for expression of interest from interested parties for provision of content to the petitioner's broadband customers through a Content Delivery Network. Respondent was one of the bidders and its bid was accepted by the petitioner and OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.2 of 18 Patiala House Court, New Delhi consequently a Franchise Agreement dated 02.06.2008 was executed between the parties. Thereafter, petitioner appointed respondent as its franchisee for providing the content based services such as IPTV to BSNL customers on non-exclusive, revenue sharing basis. Petitioner averred that it had issued a circular dated 29.06.2012 for recovery of license fee from the IPTV franchisee, while interpreting clause 4.3.6 of the agreement dated 02.06.2008. Thereafter, petitioner raised the demand vide demand note dated 07.01.2013 and 10.10.2013 for Rs.35,73,000/-, but the respondent failed to pay the amount. Arbitration clause was invoked by the respondent and arbitrator was appointed on 12.12.2013. Ld. arbitrator passed its impugned award on 22.09.2019, while rejecting the counter claim of petitioner.
GROUNDS OF OBJECTION/CHALLENGE
3. Being aggrieved by the Arbitral Award dated 22.09.2019, petitioner has filed present objections under Section 34 of the Arbitration and Conciliation Act, 1996, mainly on the following grounds: -
i. That ld. Arbitrator has failed to appreciate the facts and circumstances of the present case and has illegally and arbitrarily rejected the counter claim as filed by the petitioner; ii. because ld. Arbitrator passed the award without appreciating the facts and law;
iii. because ld. Arbitrator failed to appreciate the clause 5.8 and failed to pass the award within 12 months from the date of insertion of Section 29A of Arbitration and Conciliation Act, 2015, thus, the award is non-est in the eyes of law;
OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.3 of 18 Patiala House Court, New Delhi iv. because ld. Arbitrator has illegally and arbitrarily decided that the claim of petitioner regarding levy of licence fee was not maintainable;
v. because ld. Arbitrator has not given opportunity to lead evidence as requested by the petitioner vide his application; vi. that certified copy of award is not received till date;
REPLY FILED BY RESPONDENT
4. In its reply, respondent denied each and every averment, allegation made in the arbitration petition. Respondent further averred that petition deserves to be dismissed with costs since none of the grounds of challenge fall within the ambit of Section 34 of the Act. Respondent averred that impugned award is a well-reasoned award and has been passed after taking cognizance of the respective cases and evidence adduced by them. Respondent denied that the impugned award lacks reasonability. In its reply, respondent referred to certain judgments i.e. Associate Builders v. Delhi Development Authority, (2015) 3 SCC49; State Trading Corporatio of India Ltd. v. Toepfer International Asia Pte Ltd., 2014 (3) Arb.LR 105 (Delhi) DB; Delhi State Industrial and Infrastructure Development Corporation Ltd. v. Rama Construction Company; 2014 (3) Arb.LR 116 (Delhi) (DB); Power Grid Corporation of India v.LS Cables; 2018(6) Arb L.R. 418 (Delhi) (DB); PLC Suncon (JV) v. NHAI, MANU/DE/3363/2015; Home Stores (India) Ltd.vs. M/s Pacific Maintenance Service Pvt. Ltd. [2016 IV AD (Delhi) 472]. Respondent averred that the request of the petitioner for leading evidence came to be made at a stage, when the respondent had already concluded its arguments, thus, rejection of request of the OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.4 of 18 Patiala House Court, New Delhi petitioner, by ld. Arbitrator at such belated stage was in accordance with law.
ARGUMENTS OF PETITIONER
5. Ld. counsel for petitioner argued that ld. Arbitrator has failed to appreciate that as per clause 5.8 of the Franchisee Agreement, Arbitration and Conciliation (amendment) Act, 2015 was applicable to the arbitration proceedings. Petitioner averred that award is patently illegally and that ld. Arbitrator has wrongly conducted the arbitration proceedings as he had not given the opportunity to lead the evidence as requested by the petitioner vide his application dated 03.10.2016. Petitioner averred that appointment of arbitrator is vitiated under Section 12.
6. Ld. counsel for petitioner argued that Arbitral Tribunal denied application to lead evidence and referred to consent and an order, but no such order is placed in the record of Arbitral Tribunal. Further ld. counsel averred that in para 5.5 of the award, Arbitral Tribunal observed that petitioner did not lead evidence. Thus, on the one hand Arbitral Tribunal denied application to lead evidence and then rejected contention of petitioner saying that no evidence was led. Ld. counsel also stated that arbitrator was appointed unilaterally.
7. In support of his submissions, ld. counsel relied upon following judgments: -
i. Perkins Eastman Architect DPC and ors. v. HSCC (India) Ltd., AIR 2020 SC 59;
ii. Sukhbir Singh Vs. Hindustan Petroleum Corporation Ltd. (OMP 1118/2014) decided on 16.01.2020 by Hon'ble Delhi High Court;
OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.5 of 18 Patiala House Court, New Delhi iii. Ratna Infrastructures Projects Pvt. Ltd. v. Meja Urja Nigam Pvt. Manu/DE/0944/2017 iv. Madhava Hytech Rani (jv) v. Ircon International Ltd. Arb. P., MANU/DE/33371/2016 v. Tantia-CCIL (JV) v. Union of India, MANU/DE/3720/2016; vi. Meja Urja Nigam Pvt. Ltd. v. Ratna Infrastructures Projects Pvt. Ltd., MANU/SCOR/76402/2017;
vii. Vijay Kumar v. Bhatinda Central Cooperative Bank Ltd., MANU/PH/0672/2013;
viii. Rational Intellectual Holdings Ltd. v. Mr. Sunny Karira & Anr.
OMP (COMM) 446/2017, Decided on 11.04.2018 by Hon'ble Delhi High Court;
ix. T.R.F. Ltd. v. Energo Engineering Projects Ltd., 2017 (8) SCC 377;
x. Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd. 2019 (17) SCC page 82.
ARGUMENTS OF RESPONDENT
8. Per contra, ld. counsel for the respondent argued that arbitrator was appointed prior to amendment in the Act, hence, S.12 of the Act is not applicable and unilateral appointment is not hit by subsequent amendment. Issue of recovery of license fee was based on documents. It was interpretation of contract. There is no denial of plea regarding contractual tenure.
9. In its written submissions, respondent has argued that ld.
Arbitrator was appointed by BSNL on 12.12.2013 and was governed by the Arbitration and Conciliation Act, 1996, wherein there was no time limit for concluding the arbitral proceedings. Respondent averred that both parties were given fully opportunity to present their case. It was further argued that OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.6 of 18 Patiala House Court, New Delhi petition is not maintainable due to non-compliance with the provisions of Section 34 (5) of the Act. Respondent has further argued that parties had proceeded with the stage of arguments without opting for leading any oral evidence. Respondent has further argued that the pleadings in the matter was completed on 08.10.2014, and matter was taken up for further proceedings only on conclusion of the arbitration proceedings related to ref. 1 (Bandwidth charges), before the same arbitrator. Matter was fixed for oral arguments of the claimant on 12.08.2016, only with party's consent.
10. In support of his submissions, ld. counsel for respondent relied upon following case laws: -
i. Fortuna Skill Management Pvt. Ltd. v. Jaina Marketing and Associates, 2024 SCC OnLine Del 1972;
ii. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service and Others, (2023) 8 SCC 329; iii. ABB India Limited v. Bharat Heavy Electricals Limited, O.M.P. (T) (COMM.) 48/2020, decided on 02.11.2020, Hon'ble Delhi High Court;
iv. ABB India Limited v. Bharat Heavy Electricals Limited, SLP (C) No. 3275/2021;
v. STC Ltd. v. Toepfer International Asia Pte. Ltd.2014(3) Arb. L R. 105 (Delhi)(DB);
vi. DSIIDC v. Rana Construction Co. 2014(3) Arb LR 116 (Delhi) (DB);
vii. Associate Builders v. DDA 2014(4) Arb L.R. 307 (SC); viii. Ssangyong Engineering & Construction Co. Ltd. v. NHAI, MANU/SC/0750/2019;
ix. Hindustan Construction Co. Ltd. v. Union of India 2019 (6) Arb.
OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.7 of 18 Patiala House Court, New Delhi LR 171 (SC);
x. S.P. Singla Constructions Pvt Ltd. v. State of Himachal Pradesh & Ors., (2019) 2 SCC 488 and;
xi. Pradyuman Kumar Sharma & Ors. v. Shri Jaisagar M. Sancheti & Ors. Arbitration Petition 300-303 of 2012
11. I have examined the rival contentions and the record of the case.
APPRECIATION OF ARGUMENTS, FACTS & LAW
12. The scope of enquiry under section 34 is restricted to consideration whether any one of the grounds mentioned in section 34 exists for setting-aside the Award. Section 34 of the Act reads as under: -
"34. Application for setting aside arbitral Award- (1) Recourse to a court against an arbitral Award may be made only by an application for setting aside such Award in accordance with sub-section (2) and sub- section (3).
(2) An arbitral Award may be set aside by the court only if-
(a) the party making the application furnishes proof that-
i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.8 of 18 Patiala House Court, New Delhi
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation 1 - For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-- (i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute. (2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re- appreciation of evidence."
13. The general principles are that Arbitrator is a Judge of the choice of the parties and his decision, unless there is an error apparent on the face of the Award which makes it unsustainable, is not to be set aside by the Court, even if the Court of law could come to a different conclusion on the same facts. The Court cannot reappraise the evidence and it is not open to the Court to sit in appeal over the conclusion of the Arbitrator. It is not open to the OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.9 of 18 Patiala House Court, New Delhi Court to set aside a finding of fact arrived at by the Arbitrator and only grounds on which the Award can be set aside are mentioned in the Arbitration Act. Where the Arbitrator assigns cogent grounds, sufficient reasons and no error of law or misconduct is cited, the Award will not call for interference by the Court in exercise of the power vested in it. Where the Arbitrator is a qualified technical person and expert, who is competent to make assessment by taking into consideration the technical aspects of the matter, the Court would generally not interfere with the Award passed by the Arbitrator.
14. Hon'ble Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India, 2019 SCC OnLine SC 677, held that under Section 34 (2A) of the Act, a decision which is perverse while no longer being a ground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the Award. A finding based on the documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore, would also have to be characterized as perverse. It was held that a finding based on no evidence at all or an Award which ignores vital evidence in arriving at its decision, would be perverse and liable to be set aside on the ground of patent illegality.
15. Hon'ble Supreme Court in the case of Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49 , held that the interference with an arbitral award is permissible only when the OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.10 of 18 Patiala House Court, New Delhi findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the root of the matter. It was held that once it is found that the arbitrator's approach is neither arbitrary nor capricious, no interference is called for on facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award. Patent illegality must go to the root of the matter and cannot be of trivial nature.
16. In the present case, ld. Arbitrator mentioned in the award that dispute between the parties revolved about payment of license fee. There is no dispute to that fact. Plea taken by petitioner herein also reflect that it is all about payment of license fee, for which a counter claim was filed by petitioner, but was rejected by ld. Arbitrator. Ld. Arbitrator while dealing with this issue made following observations: -
"........clause 4.3.6 of the license agreement reads as under: -
"The payment of revenue share shall be made to the franchisee after the deduction of applicable statutory levy/or taxes applicable from time to time, from the revenues accrued on amount of provisioning of content base services to the customers. All such taxes/levies shall be pass through item and shall be billed to and collected from the customer and paid to the respective statutory body by BSNL..."
5.2. Respondent by reading the aforesaid clause has contended that the expression "applicable statutory levies or taxes" shall include license fee. This position has been disputed by the claimant, who contends that there was no such intention between the parties at the time of signing of the agreement and the license fee was to be paid by the respondent only. The claimant has also submitted that for a considerable time, the respondent was accepting the payment of the total revenue generated in the agreed proportion without raising any demand OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.11 of 18 Patiala House Court, New Delhi for license fee which also shows that parties never intended payment of license fee by claimant to the respondent. 5.3 Tribunal finds that there was no provision in the contract, which specifically talks about the license fee. Both the parties have cited provisioning clause 4.3.6 of the franchise agreement to support their respective contentions. Therefore, it is essential to examine the scope and ambit of that clause for deciding the dispute presented by the parties.
5.4 Clause 4.3.6, when read in its entirety, demonstrates that the applicable statutory levies or taxes mentioned therein are only those taxes/statutory levies, which are payable on the revenue share generated from the IPTV services provided under the contract. The other crucial aspect which has an important bearing on the decision of the dispute presented before the tribunal is to be seen in the second part of clause 4.3.6 which provides "all such taxes/levies shall be pass through item and shall be billed to and collected from the customer and paid the respective statutory bodies by BSNL". 5.5 Insofar as license fee is concerned respondent has not led any evidence to show that the license fee demanded by it from the claimant was passed through and billed to customers as part of tariff. Even the tariff circular dt. 29.9.2008 simply states that service tax and other taxes shall be extra. There is no mention in the said circular about any license fee. The fact of the matter is that license fee has not been passed on the customer nor it has been collected from them. Therefore, it is clear that even from the said reason license fee cannot form part of the statutory levy or taxes referred to in clause 4.3.6. 5.6 The tribunal has also noted that the clause 4.3.4 of the franchisee agreement provides about the BSNL's receivables from the franchisee. The said clause is extracted herein below:-
"4.3.4 The BSNL receivables from franchisees are bandwidth charges, co-location charges and share of advertisement revenue. The bandwidth charges and co-location charges as applicable, shall be paid by the franchisee in advance as per commercial conditions of BSNL on this subject subject from time to time ...BNSL shall settle the claim of revenue after OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.12 of 18 Patiala House Court, New Delhi deducting the amount receivables on amount its own revenue share of advertisement revenue, and statutory levies if any.."
A reading of the above-said clause makes it clear that license fee is not one of the receivables, listed as per the agreement, by BSNL from the franchisee i.e. the claimant herein. Even on that amount the contention of the respondent and its counter claim should fail."
17. Thus, findings given by ld. Arbitrator are on the basis of the interpretation of the contractual terms between the parties. In the case of OPG Power Generation Private Limited v. ENEXIO Power Cooling Solutions India Private Limited and Anr., (2025) 2 SCC 417, while dealing with scope to interfere on the basis of reasoning and interpretation of terms of contract, Hon'ble Supreme Court observed as under: -
"80. We find ourselves in agreement with the view taken in Dyna Technologes, as extracted above. Therefore, in our view, for the purposes of addressing an application to set aside an arbitral award on the ground of improper or inadequate reasons, or lack of reasons, awards can broadly be placed in three categories:
(1) where no reasons are recorded, or the reasons recorded are unintelligible;
(2) where reasons are improper, that is, they reveal a flaw in the decision-making process; and (3) where reasons appear inadequate.
81. Awards falling in Category (1) are vulnerable as they would be in conflict with the provisions of Section 31(3) of the 1996 Act. Therefore, such awards are liable to be set aside under Section 34, unless:
(a) the parties have agreed that no reasons are to be given, or
(b) the award is an arbitral award on agreed terms under Section 30.
OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.13 of 18 Patiala House Court, New Delhi
82. Awards falling in Category (2) are amenable to a challenge on ground of impropriety or perversity, strictly in accordance with the grounds set out in Section 34 of the 1996 Act.
83. Awards falling in Category (3) require to be dealt with care. In a challenge to such award, before taking a decision the Court must take into consideration the nature of the issues arising between the parties in the arbitral proceedings and the degree of reasoning required to address them. The Court must thereafter carefully peruse the award, and the documents referred to therein. If reasons are intelligible and adequate on a fair reading of the award and, in appropriate cases, implicit in the documents referred to therein, the award is not to be set aside for inadequacy of reasons. However, if gaps are such that they render the reasoning in support of the award unintelligible, or lacking, the Court exercising power under Section 34 may set aside the award.
Scope of interference with the interpretation/construction of a contract accorded in an arbitral award
84. An Arbitral Tribunal must decide in accordance with the terms of the contract. In a case where an Arbitral Tribunal passes an award against the terms of the contract, the award would be patently illegal. However, an arbitral Tribunal has jurisdiction to interpret a contract having regard to terms and conditions of the contract, conduct of the parties including correspondences exchanged, circumstances of the case and pleadings of the parties. If the conclusion of the arbitrator is based on a possible view of the matter, the Court should not intefere. But where, on a full reading of the contract, the view of the Arbitral Tribunal on the terms of a contract is not a possible view, the award would be considered perverse and as such amenable to interference.
Whether unexpressed term can be read into a contract as an implied condition
85. Ordinarily, terms of the contract are to be understood in the way the parties wanted and intended them to be. In agreements of arbitration, where party autonomy is the grund OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.14 of 18 Patiala House Court, New Delhi norm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions used.
86. However, reading an unexpressed term in an agreement would be justified on the basis that such a term was always and obviously intended by the parties thereto. An unexpressed term can be implied if, and only if, the court finds that the parties must have intended that term to form part of their contract. It is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them. Rather, it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, although tacit, forms part of the contract.
87. But before an implied condition, not expressly found in the contract, is read into a contract, by invoking the business efficacy doctrine, it must satisfy the following five conditions:
(a) it must be reasonable and equitable;
(b) it must be necessary to give business efficacy to the contract, that is, a term will not be implied if the contract is effective without it;
(c) it must be obvious that "it goes without saying";
(d) it must be capable of clear expression;
(e) it must not contradict any terms of the contract."
18. The reasoning of ld. Arbitrator cannot be termed as laying down any new term in the contract or reading something, which is not there in the contractual terms. He has completely confined his reasoning on the interpretation of clause 4.3.6 and took support from clause 4.3.4. This exercise cannot be termed as perverse at all and cannot be substituted with a new interpretation.
19. As far as another plea of petitioner regarding rejecting the request for leading the evidence, is concerned, it is relevant to OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.15 of 18 Patiala House Court, New Delhi repeat that ld. Arbitrator based his findings on the interpretation of clause of contract between the parties. It is not the case of petitioner that said clause were not part of the contract. In fact, petitioner also has pleaded same clause in his petition. The only dispute raised is, in respect of correctness of interpretation made by ld. Arbitrator. The case of parties was actually based on the documents. In that situation, request made on behalf of petitioner at the stage of final argument, thereby seeking permission to file affidavit of evidence, was nothing but an effort to prolong the proceedings. There was no requirement of any oral evidence at all. The observations made by ld. Arbitrator in para 5.5 should be read in that context. When ld. Arbitrator observed that petitioner herein had not led any evidence to show that the license fee demanded by petitioner from the claimant, was passed through and billed to customers as part of tariff, he referred to absence of any such document from the side of petitioner. It could not be something, which was to be proved by way of affidavit/oral assertion. It had to be document based evidence and interpretation of the same. Therefore, rejection of such request, by ld. Arbitrator, cannot be termed as even a wrong decision. Hence, there is no merit in such objection.
20. Another plea of petitioner is based on amended provisions u/s 12 & 29A of the Act, to say that unilateral appointment of Arbitrator and passing of award beyond the period of 12 months, makes the award no est and without jurisdiction. Petitioner has mentioned about such demand made by petitioner during arbitration proceedings and order dt. 28.05.2018 passed by ld. Arbitrator, in para 10 of the petition. It is not in dispute that arbitration OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.16 of 18 Patiala House Court, New Delhi proceedings had started on 14.10.2013 i.e. much prior in time of amendment of the Act w.e.f. 23.10.2015, to incorporate S. 29A, thereby making it mandatory to complete the proceedings within 12 months and to make unilateral appointment illegal. Apparently, the arbitration had started during pre-amendment regime, which is sufficient to assume that the proceedings was to be guided by law prior to its amendment in 2015. In the case of ABB India Ltd. Vs Bharat Heavy Electricals Ltd. [2020 SCC OnLine Del 2070], arbitration was invoked on the basis of similar clause in the agreement between the parties and an Arbitrator was appointed prior to 23.10.2015. However, tenure of first Arbitrator was terminated and a new Arbitrator was appointed after 23.10.2015. This appointment of new substitute Arbitrator was challenged before Delhi High Court, on the grounds of being hit by S.12 of the amended Act. In the background of arbitration being initiated under the regime of law prior to the amendment w.e.f. 23.10.2015, Hon'ble Delhi High Court examined the law and various judgments given by Supreme Court, dealing with validity of arbitrator's appointment subsequent to amendment but in an arbitration-proceedings already initiated prior to 23.10.2015. Delhi High Court held that appointment of new Arbitrator was not vitiated on account of Section 12(5) of the 1996 Act, as inserted by the 2015 Amendment Act. This judgment has been subsequently approved by Supreme Court in the case of Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, (2022) 4 SCC 206. Same analogy is applicable herein, and hence, even this objection of petitioner is liable to be rejected.
OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.17 of 18 Patiala House Court, New Delhi DECISION
21. In view of my foregoing discussion and observations, I find that petitioner has failed to establish any ground u/s 34 of the Act. Hence, petition is dismissed.
Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2026.02.23 15:28:08 +0530 Pronounced in the (PULASTYA PRAMACHALA) Open Court on this District Judge (Commercial Court)-01, 23 Day of February, 2026 rd Patiala House Court, New Delhi OMP (COMM.) No. 244/2019 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.18 of 18 Patiala House Court, New Delhi