Document Fragment View
Fragment Information
Showing contexts for: arbitration section 12 in J.K Ghai vs Oil And Natural Gas Corporation Ltd on 12 September, 2025Matching Fragments
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.
23. With the background of the applicable judicial ARBTN No. 2535/2018 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page No.11 of 24 Patiala House Court, New Delhi precedents, the impugned judgement deserves to be considered. In the present appeal, the Commercial Court has held that the Engineer-in-Chief, PWD was not eligible for appointment of an Arbitrator in view of Section 12(5) of the Arbitration & Conciliation Act, 1996. Though no objection was raised by either party to the said appointment, the Court itself set aside the award on the ground that this was a unilateral appointment. The observations of the Commercial Court are set out below:
"7. Reverting to the present matter, Engineer-in- Chief of the petitioner i.e. PWD/Union of India was not eligible for appointment of arbitrator in view of provision of Section 12(5) of Arbitration & Conciliation Act. Hence, it is found that the appointment of Ld. Arbitrator in this matter was not as per settled provisions, hence, cannot be sustained in law. In the light of above discussion, and in view of settled legal position, the petition stands allowed and accordingly the impugned award dated 21.05.2020 is set aside."
24. The clear legal position that has emerged is that any award passed by a unilaterally appointed Arbitral Tribunal who is conflicted under Section 12(5) of the Arbitration and Conciliation Act, 1996, would be against public policy. Under such circumstances, the approach of the Commercial Court cannot be faulted with.
25. In the opinion of this Court, even the affidavit filed on behalf of the PWD would not constitute express waiver in writing as required in CORE (supra) and M/s Mahavir Prasad Gupta and Sons (supra) and hence, the present appeal is liable to be dismissed. The impugned judgment does not warrant any interference of this Court."