JAYANT NATH, J.

1. The present petition is filed under Section 14 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) with a prayer to terminate the mandate of Sh. R.K. Jain, Former Chief Engineer, PWD Haryana to act as Co-Arbitrator and consequently, terminate the mandate of Justice N. Kumar (Retd.) to act as the Presiding Arbitrator.

2. The issue raised in the present petition is as to whether a party to an arbitration proceeding can approach the court under Section 14 of the Act to seek termination of the appointment of an arbitrator on the ground that he is ineligible to be appointed as an arbitrator under Section 12(5) read with the Seventh Schedule of the Act.

3. The case of the respondent is that in case the petitioner had a doubt regarding the eligibility of the Arbitrator nominated by the respondent, the petitioner had to challenge his appointment under Section 13 of the Act before the Arbitral Tribunal and in case the Arbitral Tribunal does not agree with the challenge raised by the petitioner, the petitioner had to await the award and thereafter raise the issue under Section 34 of the Act.

4. The brief facts leading to the present petition are that the petitioner Company entered into a Concession Agreement dated 06.11.2007 with the respondent for design, engineering, finance, operation and maintenance of Delhi Haryana Border to Rohtak Section of NH-10 from KM 29.70 to KM 87.00 including construction of Bahadurgarh and Rohtak by-passes in the State of Haryana under NHDP Phase-III A on build, operate and transfer (BOT) basis. The project was to be completed within a period of 24 months from the appointed date i.e. 02.05.2008. However, it is urged that on account of various delays and breaches committed by the respondent and for reasons beyond the control of the petitioner, the agreed date of completion could not be achieved and the provisional certificate of completion was issued by the respondent only on 26.11.2015 i.e. after a delay of five years and 7 months.

5. The petitioner further submits that while executing the project under the Concession Agreement, various disputes and differences have arisen between the parties. Hence, the petitioner sought to initiate arbitration proceedings in terms of Clause 44.3 of the Concession Agreement. The said Clause provides that in case of disputes, the matter would be decided by reference to a Board of three Arbitrators, each party to select one arbitrator and the two arbitrators so appointed to select the third arbitrator. In the event of disagreement on appointment of the third arbitrator, the appointment was to be made in accordance with the rules of the International Centre for Alternate Disputes Resolution (ICADR), New Delhi (hereinafter referred to as the Rules). The Clause also provides that the arbitration shall be held in accordance with the above Rules of ICADR.

6. Accordingly, the petitioner is said to have nominated Justice Anil Kumar, (Retd.) as the Arbitrator. It is the case of the petitioner that as the respondent failed to nominate his arbitrator, the petitioner filed a petition under Section 11(6) of the Act being Arbitration Petition No. 114/2017 titled as West Haryana Highways Projects Pvt. Ltd. vs. National Highway Authority of India. This court in that case by its order dated 06.02.2017 noting that the respondent have nominated Sh. R.K. Jain, former Chief Engineer, PWD, Haryana as an Arbitrator disposed of the petition. As there was no agreement between the learned Arbitrators with regard to the appointment of the third arbitrator, ICADR was approached by the respondent who appointed Justice N. Kumar (Retd.) as the Presiding Arbitrator on 20.03.2017.

7. The petitioner claims that on receipt of the notice from ICADR about constitution of the Arbitral Tribunal, the petitioner wrote a letter dated 29.03.2017to Sh. R.K. Jain, the learned Arbitrator nominated by the respondent requesting him to provide disclosure as per Section