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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 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.

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.

Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an 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.