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10. That apart, it is submitted that the award itself suffers from Violation of Section 12 of the Arbitration and Conciliation Act, 1996 read with Schedule 7 to the Arbitration and Conciliation Act, 1996 as the Arbitral Tribunal constituted was without authority of law.

11. It is submitted that the Arbitrator appointed was a former employee of the respondent. It is submitted that even though the petitioner had expressed consent for appointment of the Arbitrator, the Arbitrator was incapacitated from acting as an Arbitrator in view of Section 12(1) of the Arbitration and Conciliation Act, 1996 read with Section 5 read with Clause (1) of VII of the Schedule Arbitration in the light of the decision of the Hon'ble Supreme Court in TRF Limited Vs. Energo Engineering Project Limited, (2017) 8 SCC 377.

76. As noted above, the primary ground on which the petitioner has attacked the impugned Award is that the impugned Award is nullity in view of the proviso to Section 12(5) of the Arbitration and Conciliation Act, 1996 which has to be read in conjunction with VII Schedule to the Arbitration and Conciliation Act, 1996.

77. The amendment to Section 12 in the form of insertion of Section 12(5) of the Arbitration and Conciliation Act, 1996 was made by Act No.3 of 2016 with effect from 23.10.2015. The aforesaid amendment inserted several new provisions to the Act including VII Schedule to the Act apart from amendments to the other Schedules.

“5. After the appointment was made, the appellant preferred an application under Section 11(5) read with Section 11(6) of the Act for appointment of an arbitrator under Section 11(2) of the Act. The said foundation was structured on the basis that under Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016) read with the Fifth and the Seventh Schedules to the amended Act, the Managing Director had become ineligible to act as the arbitrator and as a natural corollary, he had no power to nominate. The stand put forth by the appellant was controverted by the respondent before the High Court on the ground that the Fifth and the Seventh Schedules lay down the guidelines and the arbitrator is not covered under the same and even if it is so, his power to nominate someone to act as an arbitrator is not fettered or abrogated. The High Court analysed the clauses in the agreement and opined that the right of one party to a dispute to appoint a sole arbitrator prior to the amended Act had been well recognised and the amended Act does not take away such a right. According to the learned https://www.mhc.tn.gov.in/judis Designated Judge, had the intent of the amended Act been to take away a party's right to nominate a sole arbitrator, the same would have been found in the detailed list of ineligibility criteria enumerated under the Seventh Schedule to the Act and, therefore, the submission advanced by the appellant, the petitioner before the High Court, was without any substance. Additionally, the High Court noted that the learned counsel for the petitioner before it had clearly stated that it had faith in the arbitrator but he was raising the issue as a legal one, for a Managing Director once disqualified, he cannot nominate. That apart, it took note of the fact that the learned arbitrator by letter dated 28-1-2016 has furnished the requisite disclosures under the Sixth Schedule and, therefore, there were no circumstances which were likely to give rise to justifiable doubts as to the independence and impartiality. Finally, the Designated Judge directed that besides the stipulation in the purchase order governing the parties, the court was inclined to appoint the former Judge as the sole arbitrator to decide the disputes between the parties”.

(2015) 2 SCC (Civ) 530] , it was opined by this Court that after appointment of an arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix [Antrix Corpn. Ltd. v.