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a. The counsel submitted that as on the date of invocation of arbitration and subsequent appointment of the arbitrator, the appointing authority, that is, the Director of West Bengal Housing Board was not disqualified to appoint an arbitrator. The counsel further submitted that the Arbitration and Conciliation (Amendment) Act, 2015 ('2015 Amendment Act') came into force with effect from October 23, 2015. He argued that the un-amended Act was in force at that point of time wherein the parties were free to agree on a procedure for appointing an arbitrator(s). Therefore, in light of the appointment made as per the arbitration clause, an AP 189 OF 2019 REPORTABLE application under Section 11(6) of the Act (in the pre- amended era) would not have been maintainable. b. The counsel submitted that it was always open for the petitioner to challenge the independence or impartiality of the arbitrator under Sections 12, 13 and 14 of the Act as it stood prior to the 2015 amendment subject to restriction as provided in Section 16(2). He submitted that in the instant case, at no point of time during the arbitral proceedings any such application was filed by the petitioner/ award debtor. In view of the same, he argued, that the award debtor is precluded from saying that the arbitrator did not have jurisdiction to proceed with the reference or that the arbitrator did not make disclosures under Section 12. c. The counsel then drew the attention of this Court towards Section 26 of the 2015 Amendment Act which reads as follows:

g. The counsel submitted that the 2015 Amendment Act came into force during the pendency of the arbitration proceedings herein which concluded upon passing of the Award dated December 21, 2018. He submitted that in view of the law laid down by the apex court in BCCI -v- Kochi (supra), none of the provisions of the 2015 Amendment Act is applicable to the pending arbitration but is applicable to those court proceedings which are in relation to the arbitral proceeding. h. The counsel submitted that the applicability of the 2015 Amendment Act was decided by the Supreme Court conclusively in BCCI -v- Kochi (supra). He argued that as such, the most important fact with regard to the applicability of the 2015 Amendment Act is the date of invocation of arbitration by way of Section 21 notice.

And, the counsel added, to decide upon the applicability of judgments of Supreme Court in Voestalpine Schienen GmbH -v- Delhi Metro Rail Corpoation Ltd. reported in (2017) 4 SCC 665, TRF (supra), Perkins (supra), and Bharat Broadband Network Limited -v- United Telecom Limited reported in (2019) 5 SCC 755 in the instant case, it is crucial to note the date of invocation of the arbitration.

                                                          AP 189 OF 2019
                                                          REPORTABLE


                     Date of Section 21 Notice

    Voestalpine         Schienen June 14, 2016

    GmbH (supra)

    TRF Limited (supra)              December 28, 2015

    Bharat Broadband (supra)         January 3, 2017

    Perkins   Eastman      (supra)   April 11, 2019