JUDGMENT :

(Moushumi Bhattacharya, J.)

I. Introduction

1. This is an application under section 14 of The Arbitration and Conciliation Act, 1996, for termination of the mandate of the Ld. Sole Arbitrator and stay of all further proceedings in the arbitration pending disposal of the present application.

2. The dispute between the petitioners and the respondents arises out of an Agreement for Arbitration made on 24.3.2018 wherein the respondent no. 1 was described as the “Investor”. The Arbitrator was appointed under clause 3, the material part of which is set out below:

“Clause 3. Any dispute(s), difference(s) and/or claim(s) arising in connection with the Transaction or as to the construction, meaning or effect thereof in relation to any Transaction Document or as to the rights and liabilities of the Parties under any Transaction Document shall be settled by arbitration in accordance with the Arbitration and Conciliation Act, 1996, or any statutory amendments, modifications and/or replacements thereof and the rules framed thereunder, which shall be referred to a sole arbitrator to be appointed by the Investor. The seat of the arbitration shall be India and the venue of the arbitration shall be at such place as determined by the Investor at its sole discretion.”

3. The petitioners say that the appointment is invalid having regard to the unilateral appointment of the Arbitrator by one of the parties to the dispute. Learned counsel appearing for the petitioners further submits that the petitioners did not execute any express agreement in writing to circumvent the invalidity of the appointment. Counsel submits that the unilateral appointment of the Arbitrator is void ab initio and the Arbitrator would hence lack inherent jurisdiction to entertain the arbitration proceeding. It is also submitted that the petitioners’ participation in the arbitration would not amount to a waiver as contemplated under the proviso to section 12(5) of the Act. Counsel relies on the applicability of the Seventh Schedule of the Act in this regard and particularly Entry 12 thereof. Counsel also relies on some of the Minutes of the Arbitration Sittings to urge that there was no express agreement in writing by the petitioners at any point of time as envisaged under the proviso to section 12(5) of the Act. Counsel places at least two instances reflecting the bias of the Arbitrator.

4. Learned counsel appearing for the respondent no. 1 places reliance on the sequence of events to show that the petitioners were aware of a disclosure made by the Arbitrator as far back as in 12.5.2019 and cites several instances thereafter to show that the petitioners knowingly and willingly participated in the Arbitration from 11.5.2019 to 12.2.2020. Counsel submits that the petitioners were also aware of the judgments pronounced by the Supreme Court in TRF Ltd. vs. Energo Engineering Projects Ltd. as well as Bharat Broadband Network Limited vs. United Telecoms Limited and Perkins Eastman Architects DPC vs. HSCC (India) Limited (which will be dealt with later) on the application of section 12(5) but nonetheless continued to participate in the arbitration. Counsel submits that the present application is an afterthought and has been filed only for the purpose of wriggling out of consent orders obtained by the petitioners on 15.7.2019 on the basis of statements made in its affidavit/Statement of Defence. Counsel submits that the pleadings and affidavits filed by the petitioners including the unequivocal stand taken in the arbitration amounts to an express written agreement under the proviso to section 12(5) and hence a waiver of any alleged disqualification of the Arbitrator.

5. Counsel urges that the Arbitrator is not struck by the disability contemplated in section 12(5) and relies on the specific stand taken by the petitioners of not questioning the integrity of the Arbitrator. Counsel places emphasis on the conduct of the petitioners in filing several applications before the Ar