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1 - 10 of 29 (0.34 seconds)Section 12 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Trf Ltd. vs Energo Engineering Projects Ltd. & Anr. on 17 February, 2017
It is thus necessary that there be an "express" agreement in writing. This
agreement must be an agreement by which both parties, with full
knowledge of the fact that Shri Khan is ineligible to be appointed as an
arbitrator, still go ahead and say that they have full faith and confidence
in him to continue as such. The facts of the present case disclose no such
express agreement. The appointment letter which is relied upon by the
High Court as indicating an express agreement on the facts of the case is
dated 17-1-2017. On this date, the Managing Director of the appellant
was certainly not aware that Shri Khan could not be appointed by him as
Section 12(5) read with the Seventh Schedule only went to the invalidity
of the appointment of the Managing Director himself as an arbitrator.
Shri Khan's invalid appointment only became clear after the declaration
of the law by the Supreme Court in TRF Ltd. [TRF Ltd. v. Energo Engg.
Projects Ltd., (2017) 8 SCC 377 : (2017) 4 SCC (Civ) 72] which, as we
have seen hereinabove, was only on 3-7-2017.
Section 4 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Section 14 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Section 7 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Bharat Broadband Network Limited vs United Telecoms Limited on 16 April, 2019
23. We are unable to agree that the decision in Bharat Broadband
Network Limited v. United Telecoms Limited (supra) can be
distinguished on the aforesaid ground. The said decision had
authoritatively held that in terms of the proviso of Section 12(5) of
the A&C Act, the ineligibility of an arbitrator under Section 12(5) of
the A&C Act could be waived only by an express agreement in writing
and cannot be inferred by the conduct of the parties. Thus, the fact that
the parties had participated before the arbitral tribunal cannot be
construed as a waiver of their rights to object to the ineligibility of the
arbitrator(s). We are unable to accept that while such a right could be
exercised prior to the delivery of the award, it would cease thereafter. If
the arbitrator is ineligible to act as an arbitrator, the arbitral award
rendered by the arbitral tribunal would be without jurisdiction."
Perkins Eastman Architects Dpc vs Hscc (India) Limited on 26 November, 2019
18. Per contra, counsel for the Respondents strenuously urged that it is
not open to the Petitioner to raise a plea that there was no waiver to the
applicability of Section 12(5) and/or the appointment was in contravention
of the judgment of the Supreme Court in Perkins (supra), allegedly being a
unilateral appointment. The objection qua appointment of the sole
Arbitrator was raised by the Petitioner at the initial stage, but was
consciously withdrawn during the hearing on 09.11.2020, wherein counsel
for the Petitioner had specifically stated that the objection be dismissed as
not pressed. The statement was duly recorded in the order sheet dated
09.11.2020 and the objection was dismissed as withdrawn. It is on account
of this concession that the sole Arbitrator proceeded with the matter
directing the Respondent to file the Statement of Claim and thereafter the
Statement of Defence. Even after 09.11.2020, Petitioner participated in the
proceedings, albeit selectively, but no objection was raised thereafter to the
appointment nor was any recourse taken to a legal remedy seeking
termination of the mandate. Having taken a calculated chance, the plea of
unilateral appointment is not available to the Petitioner, after conclusion of
the proceedings and their culmination in arbitral Awards.
Section 13 in The Arbitration And Conciliation Act, 1996 [Entire Act]
Proddatur Cable Tv Digi Services vs Siti Cable Network Limited on 20 January, 2020
"17. Following the aforesaid decision of the Supreme Court in Perkins
Eastman Architects DPC v. HSCC (India) Ltd. (supra), a learned Single
Judge of this Court in Proddatur Cable TV Digi Services v. Citi Cable
Network Limited : (2020) 267 DLT 51 held that it would be
impermissible for a party to unilaterally appoint an arbitrator.