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4. It is the contention of Mr.Arpit Patel, learned counsel appearing for the petitioner that in view of Sub-section (5) of Section 12 of the Arbitration Act there is an embargo placed on the respondent to appoint its officers as Arbitrator. Hence, petitioner has prayed for an independent and sole Arbitrator being appointed to resolve the dispute between parties and as such, he prays for C/IAAP/109/2020 ORDER DATED: 28/02/2022 petition being allowed. He would also submit that respondent has neither called upon petitioner to give consent for waiving right of petitioner accrued by virtue of Sub-section (5) of Section 12 of the Act and as such he contends that respondent has no locus to press into service any of the conditions specified in the GCC.

7. Turning my attention to the facts on hand, it would clearly emerge therefrom that on receipt of notice from petitioner on 02.01.2020 by calling upon the respondent to appoint an impartial and independent Arbitrator, no steps have been taken by C/IAAP/109/2020 ORDER DATED: 28/02/2022 respondent. It is thereafter present petition has been filed on 06.11.2020. It is thereafter respondent by communication dated 18.03.2021 called upon the petitioner to waive Sub-section (5) of Section 12 of the Arbitration and Conciliation Act, 1996, which has been refused by the petitioner by the communication (undated). It is in this background the respondent is contending that Clause 64(3)(b) would surface.

13. Thus, the underlying principle of bringing an amendment to Arbitration Act by substituting Sub- section (5) of Section 12 is to provide neutrality of the Arbitrator. The person who has or was having relationship with the parties or the counsel or interest in the subject-matter of the dispute cannot be appointed as an arbitrator or continue to act as an arbitrator if already appointed.

14. In that view of the matter, this Court is of the considered view that contention raised by the respondent's counsel cannot be entertained. Insofar as the judgments relied upon by the learned counsel appearing for the respondent is concerned, it would not detain this Court for too long to arrive at a conclusion that said judgments would not come to the rescue of the respondent for the simple reason that it was rendered in the background of where the C/IAAP/109/2020 ORDER DATED: 28/02/2022 agreement was prior to Sub-section (5) of Section 12 being brought on the statute book. Whereas in the instant case the agreement in question is of the year 2017 i.e. subsequent to the amendment.