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6. Learned counsel while arguing on the question of sustainability of the impugned order submits that the executing Court could not have suo NEUTRAL CITATION NO. 2026:MPHC-IND:1903 4 AA-186-2025 motu annulled the arbitral award when no party to the arbitration agreement had challenged the same on the ground of ineligibility of the arbitrator in terms of Section 12(5) of the Arbitration and Conciliation Act, 1996.

7. Heard learned counsel for the appellant and perused the record.

8. A perusal of the impugned order would show that the executing Court dismissed the execution proceedings primarily on the grounds that the arbitration proceedings were conducted ex parte and that the arbitrator was appointed unilaterally thereby holding that the arbitral award was not enforceable. However, while arriving at this conclusion, the executing Court remained oblivious to the express provisions of the Arbitration and Conciliation Act, 1996. Section 12(5) of the said Act provides that certain persons are ineligible to be appointed as arbitrators; however, the proviso thereto permits waiver of the applicability of the said sub-section by an agreement between the parties.

13. Similarly, in the case of Perkins Eastman Architects DPC and Another vs. HSCC (India) Ltd. reported in (2020) 20 SCC 760 , the issue before the Hon'ble Apex Court pertained to the appointment of an arbitrator. An application was filed before the Hon'ble Apex Court under Section 11(6) read with Section 11(12)(a) of the Arbitration and Conciliation Act, 1996.

13.1 Thus, the facts of the said case are also entirely different. In none of the above-mentioned three cases was the issue of execution of an arbitral award involved.

14. In the present case, inherent lack of jurisdiction could have been established by the respondents only by showing that the arbitrator was ineligible to act as such under Section 12 of the Arbitration and Conciliation Act, 1996. No such plea was ever raised by the respondents. However, the executing Court suo motu held that the arbitrator lacked jurisdiction solely on the ground that the appointment was unilateral, which by itself does not constitute a ground to infer inherent lack of jurisdiction.