Delhi District Court
Calance Software Pvt Ltd vs Alankit Assignments Ltd on 23 March, 2026
IN THE COURT OF ANUBHAV JAIN,
LD. DISTRICT JUDGE-05, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
DLND010110932017
In the matter of:
ARBTN No. 5862/2017
Calance Software Pvt. Ltd.
Having its Corporate Office at
201, Greenwood Plaza,
Greenwood City, Sector-45,
Gurgaon-122003, Haryana
(Through Its authorized representative) ... Petitioner
Vs.
Alankit Assignments Limited
Having its Office at 205-08,
Anarkali Complex,
Jhandewalan Extension,
New Delhi-110055
(Through Its Directors) ... Respondent
Date of institution : 22.08.2017
Date when Judgment reserved : 07.01.2026
Date of Judgment : 23.03.2026
OBJECTIONS UNDER SECTION 34 OF ARBITRATION &
CONCILIATION ACT, 1996 AGAINST IMPUGNED AWARD
DATED 24.05.2017
ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 1 of 18
JUDGMENT
1. Present order shall dispose off the objections u/s 34 of Arbitration and Conciliation Act, 1996 filed by the petitioner namely Calance Software Pvt. Ltd, whereby it has challenged the impugned award dated 24.05.2017.
STATEMENT OF CLAIM FILED BY CLAIMANT ALANKIT ASSIGNMENTS LTD BEFORE LD. ARBITRATOR:
2. In brief, the facts of the case are that the statement of claim was filed by the claimant before Ld. Sole Arbitrator stating therein that both the claimant namely Alankit Assignments Ltd and respondent Calance Software Pvt. Ltd have entered into an agreement dated 29.10.2012 and subsequent agreement dated 14.06.2013, wherein the claimant was to handover 150 UID Kits to the respondent for UID Enrollment purpose on hier/rental on returnable basis from time to time.
2.1 It is further stated that in pursuance thereof, respondent collected from the claimant 150 UID Kits i.e. 50 Kits on 03.11.2012, 75 Kits on 29.11.2012 and 25 Kits on 14.06.2013 against acknowledgment.
2.2 It is further alleged that the respondent committed serious breach of clause no. 1, 2, 3, 5, 6, 10, 11, 12, 15 and 16 of the said agreement and the respondent further continued to commit the said breach by not making payment of rent.
ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 2 of 182.3 It is further alleged that the UID Kits returned by respondent were not in working condition and further 15 Kits were belatedly reported by respondent as stolen. It is further alleged that the respondent failed to register FIR with respect to said 15 stolen kits in timely manner and further failed to obtained untraced report from police authority thereby leading the claimant to lose opportunity to claim insurance against the said losses.
2.4 It is further stated that the claimant has been raising debit notes upon the respondent, however respondent neither settled nor exhibit any inclination to discharge their legal obligation towards paying amount to the claimant. As per the claimant, they raised 9 debit notes, total amount to Rs.53,14,030/- upon the respondent.
2.5 It is further alleged that the respondent have allowed sufficient time for amicable resolution of the dispute and in this regard, series of meetings were held on 26.03.2014, 21.07.2014 etc, however the respondent kept on adopting evasive attitude.
2.6 It is further stated that the claimant served a legal notice 20.09.2015 with regard to appointment of Sole Arbitrator, however the same was never replied. Further, matter was referred to arbitration in terms of said agreement and the Claimant received a letter dated 28.03.2016 from the respondent acknowledging the Arbitrator notice dated 10.03.2016, however respondent did not express any inclination to resolve the dispute.
ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 3 of 182.7 By way of the statement of claim, the claimant has sought award of Rs.53,14,030/- along with interest from the respondent.
STATEMENT OF DEFENSE
3. The statement of defense so filed by the respondent, it is stated that the agreement dated 29.10.2012 was entered into between the parties with regards to 250 UID Kits at monthly rent of Rs.7500/- per UID Kit, however only 125 UID Kits were provided by claimant to respondent and deposit amount of Rs.18,75,000/- given by respondent to claimant was illegally and unlawfully returned by the claimant.
4. It is further stated that instead of extension of first agreement, a fresh agreement dated 14.06.2013 was entered into between the parties with regards to 50 UID Kits at monthly rent of Rs.7500/- and respondent deposited interest free refundable security of Rs.3,75,000/-, however only 25 no. of UID Kits were provided by the claimant to respondent.
5. It is further stated that the said UID Kits so provided, being old and used, carry Nil value in the books of accounts in the claimant. It is further alleged that it was explicitly agreed between the parties that the claimant shall provide major technical support for rental Kits and shall also replace faulty kits within 5 working days.
ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 4 of 186. It is further stated that since the claimant did not provide complete number of UID Kits as promised and further failed to rectify the defects in the same, the same caused loss to the business of the respondent. It is further stated that the claimant has also illegally retained/withheld the security deposits given by the respondent against the supply of said UID Kits.
7. Respondent further denied the averments as made by the claimant herein in his written statement and prayed for dismissal of the same.
8. It is pertinent to state in here that beside filing statement of defense the respondent has also filed a counter claim seeking recovery of Rs.73,70,937/- alongwith interest under various Acts.
IMPUGNED AWARD DATED 24.05.2017
9. That the Ld. Arbitrator after considering the rival claims between the parties awarded Rs.37,07,189/- to the claimant on his statement of claim and further award Rs.16,87,500/- to the respondent in pursuance of his counter claim. As such, by way of award dated 24.05.2017, Ld. Arbitrator has directed the respondent to pay Rs.20,19,700/- alongwith interest to claimant.
OBJECTIONS U/S 34 OF ARBITRATION ACT
10. The present Impugned Award is challenged by petitioner on several grounds primarily that the Ld. Arbitrator has failed to consider the invoices so filed by the claimant as well as the ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 5 of 18 evidence so led by the parties. It is averred that joint inspection was carried out by the parties, however no defect at any point of time was pointed out by the representative of claimant. It is further stated that Ld. Arbitrator has considered the averments made by the claimant in its face value without considering the alterations, modifications being carried out in the different invoices. That despite the said UID Kits being ensured the claimant never provided copy of insurance policy or any other document so as to enable the petitioner to claim the insurance money against the said lost UID Kits.
11. Detailed reply to the said petition was filed by the respondent wherein the averments made in the petition are opposed and further respondent prayed for dismissal of the present petition.
12. Further both the parties filed detailed written submissions in support of their contentions and same are not being reproduced herein for the sake of brevity. Arguments heard. File perused.
UNILATERAL APPOINTMENT OF ARBITRATOR:
13. During the course of arguments, Ld. Counsel for petitioner argued that the present award was passed by Sole Arbitrator which was unilaterally appointed by the respondent and therefore the present award is void-ab-initio.
14. On the other hand, Ld. Counsel for the respondent argued that the said ground was never raised by the petitioner at the time ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 6 of 18 of arbitration or in the objections so filed before this court. It is further argued that the petitioner has also filed a petition before Hon'ble High Court of Delhi challenging the appointment of Arbitrator, however, same was subsequently withdrawn. It is further argued that the petitioner herein has itself filed a counter claim before the Ld. Arbitrator thereby subjecting itself within the jurisdiction of the Ld. Arbitrator so appointed and as such at this stage, the petitioner is estopped from challenging the appointment of Arbitrator or the arbitral award on the grounds that the same was passed by Sole Arbitrator unilaterally appointed by the respondent herein.
15. In view of the arguments made by Ld. Counsel for the petitioner with regards to award being passed by arbitrator unilaterally appointed, this court is of the view that before proceeding further with the present objections on merits, issue regarding award passed by Arbitrator so unilaterally appointed by the respondent be disposed off.
16. In the present case in hand, two lease agreements were entered into between the parties dated 29.10.2012 and 14.06.2013, both of which provides for verbatim clause for appointment of arbitrator. The relevant portion of the agreement is being reproduced as under:
This contract is governed by laws of Indra Any disputes or difference whatsoever between the parties as regards its construction, breach, termination shall be referred to arbitration in accordance with Provisions of Indian Arbitration and Conciliation Act 1996. The arbitration shall be conducted by the sole Arbitrator to be appointed by the First Party. The venue of Arbitration shall be Delhi and language shall be English. However, this will not preclude any party from invoking civil or ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 7 of 18 criminal remedies against each other, if otherwise the same is permissible under the law.
The agreement shall be subject to exclusive jurisdiction of Courts in Delhi.
17. Bare perusal of record further reveals that in pursuance of the above said clause, the respondent issued a letter dated 14.09.2015 to Arbitrator Mr. B. R. Jain, thereby appointing him as arbitrator to the present dispute. The said letter carry an endorsement dated 15.09.2015 by Arbitrator Mr. B. R. Jain, whereby he consented to be appointed as arbitrator to the present dispute. That thereafter, notice dated 20.09.2015 was issued by the petitioner upon the respondent with regard to commencement of arbitration proceedings and appointment of Mr. B. R. Jain as arbitrator to the present dispute.
18. It is not in dispute that the respondent Alankit Assignments Ltd has unilaterally appointed Sh. B.R. Jain as Sole Arbitrator to adjudicate the dispute arising between the parties. It is further admitted case that the said appointment is made in terms of agreement29.10.2012 and subsequent agreement dated 14.06.2013 whereby Alankit Assignments Ltd. was authorized to unilaterally appoint the Arbitrator.
19. As such, the points which requires determination of this court, in pursuance of arguments so led by the parties, is framed as under:
a) Validity of award passed by arbitrator, unilaterally appointed by one of the party to the dispute?
b) Stage at which the other party can raise challenge to the appointment of Sole Arbitrator, unilaterally appointed by ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 8 of 18 one of the party or the arbitral award so passed by said unilaterally appointed Arbitrator?
c) Whether the conduct of other party participating in the arbitral proceedings tantamount to waiver of unilateral appointment of arbitrator by one of the party?
20. Before proceeding to answer the abovesaid point of determination, this court deems it appropriate to discuss in here law with regard to the same. For the same, reliance can be placed on following judgments:
a) M/S Satya Parkash And Brothers (P) Ltd. V. Union Of India Fao (Comm) 80/2025 dated 04th August, 2025. Relevant para of the said judgment are as follows:
15. This issue has been repeatedly considered and pronounced upon by various Courts. The Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd. [2019 SCC OnLine SC 1517], relying upon the decision in TRF Limited v. Energo Engineering Projects Limited [(2017) 8 SCC 377 held that a party having an interest in the outcome of an arbitration proceeding must not be vested with the exclusive power to appoint a sole arbitrator. Where the right to appoint a sole arbitrator lies solely with one party, the appointment is inherently susceptible to unilateral influence, thereby compromising the neutrality of the arbitral proceedings. The relevant portion of Perkins (supra) is extracted below:
"20. We thus have two categories of cases. The first, similar to the one dealt with in TRF Ltd. [TRF Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377: (2017) 4 SCC (Civ) 72] where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorised to appoint any other person of his choice or ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 9 of 18 discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Ltd. [TRF Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72], all cases having clauses similar to that with which we are presently concerned, a party to the agreement would be disentitled to make any appointment of an arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an arbitrator.
21. But, in our view that has to be the logical deduction from TRF Ltd. [TRF Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72] Para 50 of the decision shows that this Court was concerned with the issue, "whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator" The ineligibility referred to therein, was as a result of operation of law, in that a person having an interest in the dispute or in the outcome or decision thereof, must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator and that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter-balanced by equal power with the other party. But, in a case where only one party has a right to appoint a sole arbitrator, its choice will ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 10 of 18 always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016) and recognised by the decision of this Court in TRF Ltd. [TRF Ltd. v. Energo Engg. Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72]"
16. Further, the Supreme Court, in Central Organisation for Railway Electrification (CORE) v. ECI SPIC SMO MCML (JV) A Joint Venture Co. [2024 SCC OnLine SC 3219] conclusively held that a clause permitting unilateral appointment of an arbitrator raises justifiable doubts regarding the independence and impartiality of the sole arbitrator. Furthermore, the Court held that such unilateral appointment clauses, particularly in public-private contracts, are violative of Article 14 of the Constitution of India. Relevant portion of this case is extracted herein:
"129. Equal treatment of parties at the stage of appointment of an arbitrator ensures impartiality during the arbitral proceedings. A clause that allows one party to unilaterally appoint a sole arbitrator is exclusive and hinders equal participation of the other party in the appointment process of arbitrators. Further, arbitration is a quasi judicial and adjudicative process where both parties ought to be treated equally and given an equal opportunity to persuade the decision-maker of the merits of the case. An arbitral process where one party or its proxy has the power to unilaterally decide who will adjudicate on a dispute is fundamentally contrary to the adjudicatory function of arbitral tribunals."
17. Thereafter, in Civil Appeal No. 3972 of 2019 titled Bharat Broadband Network Limited v. United Telecoms Limited the Supreme Court further clarified that the proviso to Section 12(5) of the Arbitration and Conciliation Act, 1996, mandates an "express agreement in writing," signifying that the parties must explicitly record their intention to waive their right to object to the arbitrator's jurisdiction. Such a waiver cannot be implied or presumed from the conduct of the parties:
ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 11 of 18"17. The scheme of Sections 12, 13 and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under Sections 12 (1) to 12(4) read with Section 13. However, where such person becomes "ineligible" to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case i.e. a case which falls under Section 12(5), Section 14 (1)
(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e. de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator. This being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator under Section 14 (1) itself. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties.
Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator continues as such, being de jure unable to perform his functions, as he falls within any of the categories mentioned in Section 12(5), read with the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. Questions which may typically arise under Section 14 may be as to whether such person falls within any of the categories mentioned in the Seventh Schedule, or whether there is a waiver as provided in the proviso to Section 12(5) of the Act. As a matter of law, it is important to note that the proviso to Section 12(5) must be contrasted with Section 4 of the Act. Section 4 deals with cases of deemed waiver by conduct; whereas the proviso to Section 12(5) deals with waiver by express agreement in writing between the parties only if made subsequent to disputes having arisen between them.
xxxxxxx
20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 12 of 18 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an "express agreement in writing". The expression "express agreement in writing" refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct."
xxx xxx xxx J. Conclusion. In view of the above discussion, we conclude that:
a. The principle of equal treatment of parties applies at all stages of arbitration proceedings, including the stage of appointment of arbitrators;
b. The Arbitration Act does not prohibit PSUs from empanelling potential arbitrators. However, an arbitration clause cannot mandate the other party to select its arbitrator from the panel curated by PSUs;
c. A clause that allows one party to unilaterally appoint a sole arbitrator gives rise to justifiable doubts as to the independence and impartiality of the arbitrator. Further, such a unilateral clause is exclusive and hinders equal participation of the other party in the appointment process of arbitrators;
d. In the appointment of a three-member panel, mandating the other party to select its arbitrator from a curated panel of potential arbitrators is against the principle of equal treatment of parties. In this situation, there is no effective counterbalance because parties do not participate equally in the process of appointing arbitrators. The process of appointing arbitrators in CORE (supra) is unequal and prejudiced in favour of the Railways;
e. Unilateral appointment clauses in public- private contracts are violative of Article 14 of the Constitution;
f. The principle of express waiver contained under the proviso to Section 12(5) also applies to situations where the parties seek to waive the ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 13 of 18 allegation of bias against an arbitrator appointed unilaterally by one of the parties. After the disputes have arisen, the parties can determine whether there is a necessity to waive the nemo judex rule; and g. The law laid down in the present reference will apply prospectively to arbitrator appointments to be made after the date of this judgment. This direction applies to three-member tribunals."
37. Hence, a unilateral appointment of the sole arbitrator or the presiding arbitrator by a party to the arbitrations seated in India is strictly prohibited and considered as null and void since its very inception. Resultantly, any proceedings conducted before such unilaterally appointed Arbitral Tribunal are also nullity and cannot result into an enforceable award. Any award passed by the unilaterally appointed Arbitral Tribunal is against public policy of India and can be set aside under Section 34 of the Act and/or refused to be enforced under Section 36 of the Act."
21. The Court, thereafter, went on to consider the question as to whether there can be a waiver of the objection to unilateral appointment and if so, in what manner. Again, after considering the relevant decisions of the Supreme Court as also the High Courts, the Court came to the conclusion that any waiver has to be expressly in writing and the same has to be waived after the dispute arises between the parties. The observations in this regard are set out below:
"42. In CORE (supra), the Supreme Court has laid down twin conditions for a valid waiver under the proviso to Section 12(5) of the Act. These conditions are: (i) the express agreement in writing shall be made "after" the dispute has arisen; and (ii) the parties must consciously abandon their existing legal right through an "express agreement". It was held that:
"121. An objection to the bias of an adjudicator can be waived. A waiver is an intentional relinquishment of a right by a party or an agreement not to assert a right. The Arbitration Act allows parties to waive the application of Section 12(5) by an express agreement after the disputes have arisen.ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 14 of 18
However, the waiver is subject to two factors. First, the parties can only waive the applicability of Section 12(5) after the dispute has arisen. This allows parties to determine whether they will be required or necessitated to draw upon the services of specific individuals as arbitrators to decide upon specific issues. To this effect, Explanation 3 to the Seventh Schedule recognises that certain kinds of arbitration such as maritime or commodities arbitration may require the parties to draw upon a small, specialised pool. [ "Explanation 3.--For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practice for parties frequently, to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above."] The second requirement of the proviso to Section 12(5) is that parties must consciously abandon their existing legal right through an express agreement. Thus, the Arbitration Act reinforces the autonomy of parties by allowing them to override the limitations of independence and impartiality by an express agreement in that regard."
43. Consenting to the extension of the mandate of the arbitrator under Section 29A(3) of the Act does not constitute a valid express waiver in writing as required under the proviso to Section 12(5) of the Act......"
b) M/S Mahavir Prasad Gupta And Sons Versus Govt Of Nct Of Delhi Fao (Comm) 170/2023. Relevant para of the said judgment are as follows:
84. In view of the above discussion, the legal position on the unilateral appointment of the Sole and Presiding Arbitrator is summarized as under:
a) Mandatory Requirement: Any arbitration agreement providing unilateral appointment of the sole or presiding arbitrator is invalid. A ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 15 of 18 unilateral appointment by any party in the arbitrations seated in India is strictly prohibited and considered as null and void since its very inception. Resultantly, any proceedings conducted before such unilaterally appointed Arbitral Tribunal are also nullity and cannot result into an enforceable award being against Public Policy of India and can be set aside under Section 34 of the Act and/or refused to be enforced under Section 36 of the Act.
b) Deemed Waiver: The proviso to Section 12(5) of the Act requires an express agreement in writing. The conduct of the parties, no matter how acquiescent or conducive, is inconsequential and cannot constitute a valid waiver under the proviso to Section 12(5) of the Act. The ineligibility of a unilaterally appointed arbitrator can be waived only by an express agreement in writing between the parties after the dispute has arisen between them. Section 12(5) of the Act is an exception to Section 4 of the Act as there is no deemed waiver under Section 4 of the Act for unilateral appointment by conduct of participation in the proceedings. The proviso to Section 12(5) of the Act requires an „express agreement in writing‟ and deemed waiver under Section 4 of the Act will not be applicable to the proviso to Section 12(5) of the Act.
c) Award by an Ineligible Arbitrator is a Nullity:
An award passed by a unilaterally appointed arbitrator is a nullity as the ineligibility goes to the root of the jurisdiction. Hence, the award can be set aside under Section 34(2)(b) of the Act by the Court on its own if it „finds that‟ an award is passed by unilaterally appointed arbitrator without even raising such objection by either party.
d) Stage of Challenge: An objection to the lack of inherent jurisdiction of an arbitrator can be taken at any stage during or after the arbitration proceedings including by a party who has appointed the sole or presiding arbitrator unilaterally as the act of appointment is not an express waiver of the ineligibility under proviso to Section 12(5) of the Act. Such objection can be taken even at stage of challenge to the award under Section 34 of the Act or during the ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 16 of 18 enforcement proceedings under Section 36 of the Act
21. In light of observations made in abovesaid judgment, the point of determination so framed are being answered as followed:
a) Unilateral appointment of arbitrator by one of the party to the dispute is in violation Article of 14 of Constitution of India and thus null and void since its very inception and award so passed by unilaterally appointed Arbitrator is a nullity.
b) Ineligibility of a unilaterally appointed arbitrator can be waived only by an express agreement in writing between the parties after the dispute has arisen between them as there is no deemed waiver under Section 4 of the Act for unilateral appointment by conduct of participation in the proceedings.
c) Challenge to unilateral appointment of arbitrator can be made at any stage during or after the arbitration proceedings including by a party who has appointed the sole or presiding arbitrator unilaterally. Such objection can be taken even at stage of challenge to the award under Section 34 of the Act or during the enforcement proceedings under Section 36 of the Act.
22. In view of the law and facts discussed above, since the impugned award dated 24.05.2017 was passed by Sole Artbitaror unilaterally appointed by the respondent herein, the impugned award dated 24.05.2017 is null and void. This court further finds ARBTN 5862/17 Calance Software Pvt Ltd v. Alankit Assignments Ltd. Page 17 of 18 no merits in the arguments so led by Ld. Counsel for respondent that since the petitioner has filed counter claim, he subjected himself to the jurisdiction of arbitrator and as such estopped from challenging the same, since there is no express agreement between the parties in this regard.
23. In view of the same, the impugned order 24.05.2017 stands set aside. Objection u/s 34 of Arbitration and conciliation Act stands allowed.
24. Pending applications, if any, stands disposed off accordingly.
25. File be consigned to record room after due compliance.
(Anubhav Jain) District Judge-05 (New Delhi District) Patiala House Courts, New Delhi/23.03.2026 Present judgment consists of 18 pages and each page bears my signatures.
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