section (1) of Section 12 of the A&C Act was substituted
and Sub-section (5) of Section 12 ... introduced in
Section 12 of the A&C Act. The said Sub-sections read as under:
"12. Grounds for challenge.--
(1) When
open to the petitioner to raise its pleas in
arbitration under Sections 12 and 13 before the Arbitral
Tribunal.
8. Accordingly, I find no merit ... Section 12(1) and Section 12(5) of the Act (as
amended) are relevant and read as under:-
"12. Grounds for challenge.-(1) When
Section 12 has been amended substantially; Section
12(1) of the Act has been modified and Section 12(5) has been introduced.
27. Section 12 ... devote sufficient time to arbitration [ Section 12(1)(b) ].
Explanations 1 and 2 have also been introduced to Section 12(1) of the
Act. Explanation
learned senior counsel appearing for Afcons
contended that the arbitration clause was ultra vires Section 12(5) of the
Act since it entailed an arbitral ... ground between the parties that a part of the arbitration
clause is ultra vires Section 12(5) of the Act and that the doctrine
frustrated by virtue of the
amendments to section 12 of the Act as introduced by the Arbitration and
Conciliation (Amendment) Act, 2015 .
3. Briefly stated ... longer possible in view of the provisions
of Section 12(5) of the Act, the arbitration clause was no longer binding and
the petitioner ought
entire arbitration within the statutory
period."
11.9 The petitioner filed an application dated 25.10.2021, under
Section 16 read with Sections 12 ... 2021 Page 12 of 18
Signing Date:31.05.2022
Sole Arbitrator by virtue of Section 12(5) read with
Seventh Schedule of the Arbitration
pronouncement of the decision
on the Application under section 12 and 13 of the
Arbitration & Conciliation Act, 1996 is that the mandate of
Shri ... Indisputably, in view of Section 26 of the Arbitration and
Conciliation (Amendment) Act, 2015, the amendments to Section 12
would not be applicable
awarded work to the petitioner. The
Petitioners also have remedy under Section 12 & 13 of
the Act, in case they doubt the impartiality ... force
now.
5. We have here below reproduced the section 12 (5) of
Arbitration and Conciliation Act 1996,
" Section 12(5) : Notwithstanding any prior
applicability of the proviso
to Section 12(5) on the facts of this case. Unlike Section
4 of the Act which deals with deemed waiver ... between the parties, the parties waive the applicability of
sub-section (5) of Section 12 by an express agreement in
writing. For this reason
applicability of the proviso
to Section 12(5) on the facts of this case. Unlike Section 4
of the Act which deals with deemed waiver ... section (5)
of Section 12 by an express agreement in writing. For this
reason, the argument based on the analogy of Section
