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AP-COM/88/2024 A.R.J. 2026:CHC-OS:159
(i) In the matter of: Kanshi Ram vs. Bansi Lal reported at 1976 SCC OnLine HP 38;
(ii) In the matter of: Kaka Ram vs. Mangat Ram, Judgment dated 5th February, 2024, CM No.387 of 2024 (High Court of Jammu & Kashmir);

34. Learned Advocate General then submits that the said learned Arbitrator attended events, as narrated above, during the currency of the arbitration and yet did not make any disclosure thereof, as mandated under Section 12 of the Arbitration Act. Section 12 requires an arbitrator to disclose in writing any direct or indirect relationship and the purpose of the disclosure is to ensure that the arbitrator is impartial and independent. In the instant case, the seven events, narrated above, have not been disclosed. The said learned arbitrator has acted in breach of the mandatory requirements of law provided under Section 12 of the Act. In support, reliance has been placed In the matter of: Jagdish Kishinchand Valecha vs. Srie Equipment Finance Limited reported at 2021 SCC OnLine Cal 2076.

61. According to Mr. Sarkar, even if the applicant is permitted in law to raise the question of violation of Section 12 read with the 5th schedule to the Arbitration Act, the same can only be raised at the stage of Section 34 hearing and not at this stage under Section 36 (3) of the Act. Dealing the submissions made on behalf of the applicant :

62. Mr. Sudipto Sarkar learned Senior Advocate while dealing with the submissions made by the learned Advocate General for the State on behalf of the applicant submits that the submissions made that there cannot be waiver by conduct of any right under Section 12 (5) of the Arbitration Act, unless it is in writing, is ex facie incorrect as Section 12 (5) applies only to the 7th schedule and not the 5th schedule. The submission made on behalf of the applicant is also contrary to Section 4 of the Arbitration Act.

129. Explanation 1 to Section 12(i) (b) of the Arbitration Act provides that the grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justiciable doubt as to the independence or impartiality of an arbitrator. On a close scrutiny of the entries enumerated under the Fifth Schedule, it appears to this Court that AP-COM/88/2024 A.R.J. 2026:CHC-OS:159 none of those entries have been satisfied for the alleged ground of bias urged on behalf of the applicant. The expression Bias is also not included in the Fifth Schedule. Sub-Section (5) to Section 12 of the Arbitration Act, inter alia, provides that 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 categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator. On a close scrutiny of the entries enumerated under Seventh Schedule of the statute, it appears to this Court that the alleged ground of bias, as argued on behalf of the applicant, does not include any of the act or omission enumerated in the entries under Seventh Schedule to the statute.

154. In the matter of: C and E Ltd. (Components and Equipments Ltd.) and Another (Supra) the case was dealt with under Section 12 of the Arbitration Act and the Coordinate Bench of this Court found that the conduct of the concerned arbitrator was covered under the entries made in Fifth and Seventh schedule read with explanation. In the facts of the instant case, there was no such proceeding under Section 12 of the Arbitration Act, though the documents and incidents spoken of on behalf of the applicant/award-debtor were available during the arbitration proceeding in the respective websites, which is a public domain. Thus, the ratio is not applicable in the facts of the instant case.