𝐖𝐡𝐞𝐭𝐡𝐞𝐫 𝐟𝐢𝐥𝐢𝐧𝐠 𝐨𝐟 𝐚𝐩𝐩𝐥𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐮𝐧𝐝𝐞𝐫 𝐒𝐞𝐜𝐭𝐢𝐨𝐧 𝟐𝟗(𝐀) 𝐰𝐨𝐮𝐥𝐝 𝐚𝐦𝐨𝐮𝐧𝐭 𝐭𝐨 𝐰𝐚𝐢𝐯𝐞𝐫 𝐛𝐲 𝐩𝐚𝐫𝐭𝐲 𝐭𝐨 𝐜𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞 𝐭𝐡𝐞 𝐢𝐧𝐞𝐥𝐢𝐠𝐢𝐛𝐢𝐥𝐢𝐭𝐲 𝐨𝐟 𝐭𝐡𝐞 𝐚𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐨𝐫 𝐮𝐧𝐝𝐞𝐫 𝐒𝐞𝐜𝐭𝐢𝐨𝐧 𝟏𝟐(𝟓)? (Delhi High Court)

UMAXE PROJECTS PRIVATE LIMITED Vs. AIR FORCE NAVAL HOUSING BOARD (Dec 2023)

👉The petitioner had instituted the present application under section 34 seeking to set aside an Arbitral Award challenging the dejure eligibility of the learned Sole Arbitrator.

👉The Respondent invoked arbitration pursuant to disputes between the contracting parties for 2 different projects. Since the disputing parties were the same, the same sole arbitrator was appointed for both the cases and subsequently an arbitral Award was passed.

👉The Respondent vehemently contended that the Petitioner during the arbitration proceedings had participated actively, without raising any objections and even sought for extension of the mandate of the Arbitrator under section 29(A) of the A&C Act.

The Court observed the following

1. The Petitioner’s participation in the Arbitral proceedings will not preclude it from challenging the proceedings conducted by an inherently ineligible arbitrator, 𝒔𝒊𝒏𝒄𝒆 𝒐𝒏𝒍𝒚 𝒂𝒏 𝒆𝒙𝒑𝒓𝒆𝒔𝒔𝒂𝒈𝒓𝒆𝒆𝒎𝒆𝒏𝒕 𝒊𝒏 𝒘𝒓𝒊𝒕𝒊𝒏𝒈 𝒃𝒆𝒕𝒘𝒆𝒆𝒏 𝒕𝒉𝒆 𝒑𝒂𝒓𝒕𝒊𝒆𝒔 subsequent to the occurrence of dispute, could waive off the party’s right to challenge the appointment, which did not happen in this case.
2. Further the Court clarified that the Petitioner’s 𝒂𝒑𝒑𝒍𝒊𝒄𝒂𝒕𝒊𝒐𝒏 𝒖𝒏𝒅𝒆𝒓 𝑺𝒆𝒄𝒕𝒊𝒐𝒏 29𝑨 𝒇𝒐𝒓 𝒆𝒙𝒕𝒆𝒏𝒔𝒊𝒐𝒏 𝒐𝒇 𝒕𝒉𝒆 hashtag#𝒎𝒂𝒏𝒅𝒂𝒕𝒆 𝒐𝒇 𝒕𝒉𝒆 𝑨𝒓𝒃𝒊𝒕𝒓𝒂𝒕𝒐𝒓 𝒅𝒐𝒆𝒔 𝒏𝒐𝒕 𝒂𝒎𝒐𝒖𝒏𝒕 𝒕𝒐 ‘𝒆𝒙𝒑𝒓𝒆𝒔𝒔 𝒘𝒂𝒊𝒗𝒆𝒓 𝒊𝒏 𝒘𝒓𝒊𝒕𝒊𝒏𝒈’.
3. Accordingly, the Court allowed the set aside application

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