Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(SC) 9

SUPREME COURT OF INDIA
J.B. PARDIWALA, K.V. VISWANATHAN, JJ.
Bhadra International (India) Pvt. Ltd. and Others – Appellants
Versus
Airports Authority of India – Respondent
Civil Appeal Nos. 37-38 of 2026 [Arising Out of Special Leave Petition (C) Nos. 16107-16108 of 2025]
Decided On : 05-01-2026

Advocates Appeared:
For the Appellants : Navin Pahwa, Ashish Mohan, Akshit Mago, Akshit Pradhan
For the Respondents: Parag Tripathi, Sonal K. Singh, Ayan De, Shivang Singh, Anmol Adhrit, Sukanya Lal

Unilateral appointment of an arbitrator is void if it violates Section 12(5) of the Arbitration Act; mere participation does not imply waiver without express written consent post-disputes.

Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 12(5) - Challenge to the appointment of a sole arbitrator and waiver of ineligibility - Arbitration agreement allowing unilateral appointment deemed void if the appointed arbitrator is ineligible per the Seventh Schedule - The court ruled that mere participation in arbitration does not waive the statutory objection to ineligibility without an express written agreement. (Paras 68, 119)

(B) Appellant's Claims - An objection raised for the first time in Section 34 proceedings was valid, claiming the arbitrator was unilaterally appointed and hence without jurisdiction, rendering awards null and void against public policy - Court indicated that consent cannot cure inherent lack of jurisdiction. (Paras 100, 118)

Facts of the case:
Appeals arose from a challenge to the appointment of a sole arbitrator, as the arbitrator was appointed unilaterally by the respondent, allegedly violating Section 12(5). The appellants contended that this lack of consent invalidated the arbitration, leading to awards that were sought to be set aside.

Findings of Court:
Unilateral appointment was ruled invalid as it ran contrary to the explicit provisions of the Act, which uphold impartiality and the equal treatment of parties. Court reiterated that ineligibility under Section 12(5) must be addressed before an award can be made, and parties can challenge it at any time.

Issues: Whether unilateral appointment violated statutory provisions, the validity of waivers implied from party conduct, and the ability to challenge appointment at a later stage.

Ratio Decidendi: The court emphasized that express written agreements are essential to waive arbitrator ineligibility, and participation in proceedings does not constitute such a waiver.

Result: Appeals allowed; awards set aside, and fresh arbitration proceedings permitted.

Judgement Key Points

The case involves a dispute over the appointment of a sole arbitrator in an arbitration proceeding. The key facts are as follows:

The parties had an arbitration agreement that stipulated the appointment of a sole arbitrator by a designated authority, which in this case was the Chairman of the Airports Authority of India (!) (!) .
The arbitration was initiated due to disputes arising from a license agreement for ground handling services at airports, which included an arbitration clause (!) (!) .
The respondent appointed the arbitrator unilaterally, which the appellants contended was invalid because the appointment violated statutory provisions that require the arbitrator to be eligible under the law, specifically under the amended Section 12(5) and the Seventh Schedule (!) (!) .
The appellants argued that the appointment was void ab initio because the arbitrator was ineligible due to his relationship with the respondent, which fell under the categories listed in the Seventh Schedule, making him de jure ineligible to act as an arbitrator (!) (!) (!) .
The appellants further claimed that their participation in the arbitration proceedings did not constitute a waiver of their right to object to the appointment, especially since no express written agreement waiving such ineligibility was made after the dispute arose (!) (!) (!) .
The courts examined whether the appointment was unilateral and invalid, whether the parties had waived their rights through conduct or agreement, and whether objections could be raised at different stages of the arbitration process, including during Section 34 proceedings (!) (!) (!) (!) .
Ultimately, the courts found that the appointment was indeed ineligible and unilateral, and that no valid waiver had been established. The appointment was declared void, and the arbitral awards based on such appointment were set aside, allowing for the possibility of initiating fresh arbitration proceedings (!) (!) .

In summary, the case centers on whether the appointment of the arbitrator was legally valid, focusing on issues of eligibility, unilateral appointment, and waiver of rights, with the courts ruling that the appointment was invalid due to statutory violations.

Table of Content
1. factual background and context of the appeals. (Para 4 , 6 , 8 , 9 , 10 , 11 , 12)
2. arguments raised by the appellants regarding the ineligibility of the arbitrator. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19)
3. counterarguments presented by the respondent on arbitrator's eligibility. (Para 21 , 22 , 23 , 24 , 26 , 27)
4. legal observations concerning the symmetrical treatment of parties in arbitration. (Para 30 , 32 , 33 , 40 , 56)
5. rationale on the necessity of express agreements for waiver of ineligibility. (Para 61 , 68 , 71 , 84)
6. clarification on the authority and jurisdiction relative to ineligible arbitrators. (Para 102 , 114 , 120)
7. conclusion of the court on the validity of the arbitrator's appointment and judgments made. (Para 123 , 124 , 125 , 126)

JUDGMENT :

J.B. PARDIWALA, J.

For the convenience of exposition, this judgment is divided into the following parts:

INDEX
I.	FACTUAL MATRIX
II.	JUDGMENT OF THE SINGLE JUDGE ON APPLICATION UNDER SECTION 34 OF THE ACT, 1996
III.	IMPUGNED JUDGMENT
IV.	SUBMISSIONS ON BEHALF OF THE APPELLANTS
V.	SUBMISSIONS ON BEHALF OF THE RESPONDENT
VI.	ISSUES FOR CONSIDERATION
VII.	ANALYSIS
	i. Whether the sole arbitrator could be said to have become “ineligible to be appointed as an arbitrator” by virtue of Sub-Section (5) of Section 12 of the Act, 1996?
	a. Interplay between Equal Treatment of Parties and Party Autonomy
	b. Scope and Application of Sub-Section (5) of Section 12 of the Act, 1996
	c. Appointment of the sole arbitrator in light of Sub-Section (5) of Section 12 of the Act, 1996
	d. De Jure inability of the arbitrator to perform his functions
	ii. Whether the parties could be said to have waived the applicability of Sub-Section (5) of Section 12 of the Act, 1996, by way of their conduct, either expressed or implied?
	a. Meaning and Import of the expression “express agreement in writing” used in proviso to Sub-Section (5) of Section 12 of the Act, 1996
	b. “Statement of Claim” as a parameter of waiver
	d. “Continued Participation” as a parameter of waiver
	c. “Extension of Time” under Section 29A of the Act, 1996 as a parameter of waiver
	iii. Whether the appellants could have raised an objection to the appointment of the sole arbitrator for the first time in an application under Section 34 of the Act, 1996?
	a. Challenge to the ineligibility of the arbitrator during the proceedings
	b. Challenge to the ineligibility of the arbitrator after arbitral award has been passed
	c. Challenge to the ineligibility of the arbitrator at any stage of the proceedings
VIII.	CONCLUSION

1. Leave granted.

2. Since the issues raised in both the captioned appeals are the same, the parties are same, and the challenge is also to the self-same judgment and order passed by the High Court, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

3. These appeals arise from the common judgment and order dated 11.02.2025 passed by a Division Bench of the High Court of Delhi in FAO(OS) (COMM) Nos. 23 and 24 of 2025 respectively (hereinafter, the “Impugned Judgment”), by which the appeals filed by the appellants herein under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, the “Act 1996”) came to be dismissed thereby affirming the order dated 19.02.2022 passed by a learned Single Judge of the High Court in OMP (COMM) Nos. 414 and 415 of 2018 respectively under Section 34 of the Act, 1996 (hereinafter, the “Single Judge”) dismissing the preliminary objection raised by the appellants as regards unilateral appointment of a sole arbitrator by the respondent.

I. FACTUAL MATRIX

4. The facts giving rise to the appeals may be summarized as under:

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2026 Supreme(SC) 9

SUPREME COURT OF INDIAJ.B. PARDIWALA, K.V. VISWANATHAN, JJ.Bhadra International (India) Pvt. Ltd. and Others – AppellantsVersusAirports Authority of India – RespondentCivil Appeal Nos. 37-38 of 2026 [Arising Out of Special Leave Petition (C) Nos. 16107-16108 of 2025]Decided On : 05-01-2026

Unilateral appointment of an arbitrator is void if it violates Section 12(5) of the Arbitration Act; mere participation does not imply waiver without express written consent post-disputes.

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