Recourse to Section 14 of the A&C Act is not available in respect of any challenge to the arbitrator under Section 12(1) of the A&C Act, and such a challenge is permissible only if the arbitrator is ineligible by virtue of Section 12(5) of the A&C Act.

ORDER

Vibhu Bakhru, J (Oral). - The petitioner has filed the present petition under Sections 14 and 15 of the Arbitration & Conciliation Act, 1996 (hereafter 'the A&C Act'), inter alia, praying as under:

"a) Terminate the mandate of arbitrator appointed by the petitioner and substitute the Sole Arbitrator for adjudication of all the disputes and differences arising between the parties out of the Agreement dated 13.06.2017 entered into between the Applicant and the Respondents;"

2. The petitioner states that certain disputes have arisen between the parties in connection with execution of the work relating to OR's Barrack and Store for the Indo Tibetan Border Police (ITBP) at Mana.

The contract for the said work was awarded to the respondent. The stipulated date for commencement of work was 21.08.2010 and it was to be completed on or before 20.06.2011. The petitioner states that the respondent failed to execute the work and in the circumstances, the petitioner had no option but to get the work completed from another contractor.

3. The respondent invoked the Arbitration Agreement and sought reference of the disputes to arbitration. On 01.03.2018, the Chief Engineer, NZ-IV, CPWD, appointed Sh. Rajesh Banga as the Sole Arbitrator to adjudicate the disputes between the parties. The petitioner states that the mandate of Sh. Rajesh Banga expired and Sh. Mukund Joshi was appointed as the Arbitrator in place of Sh. Rajesh Banga.

4. Sh. Mukund Joshi made a disclosure as required under Section 12(1) of the A&C Act. However, the disclosure made by him did not indicate any circumstances that were likely to give rise to any justifiable doubts as to his independence and impartiality.

5. The petitioner alleges that the disclosure made by Sh. Mukund Joshi was not full and true inasmuch as, he did not disclose that at one point of time, he was involved with the performance of the contract in question and had directed recommencement of the work. The petitioner claims that it became aware of the same on a disclosure made by Sh. Mukund Joshi in another proceeding. In the said proceeding, Sh. Mukund Joshi had disclosed that on 12.11.2021, while he was serving as the Chief Engineer, NZ-III, CPWD, he had also held an additional charge of NZ-IV for a short period of time. While holding the said additional charge, he was associated with the work in question and had taken a decision to direct recommencement of the work.

6. Mr. Kumar, learned counsel appearing for the petitioner, states that there is a perceived bias on the part of learned Arbitrator and therefore, his mandate is required to be terminated.

7. I have heard the learned counsel for the petitioner.

8. It is well settled that recourse to Section 14 of the A&C Act is not available in respect of any challenge to the arbitrator under Section 12(1) of the A&C Act. Such a recourse is permissible only in the event the arbitrator is ineligible by virtue of Section 12(5) of the A&C Act. Concededly, none of the circumstances as specified in the Seventh Schedule exist in the present case. Thus, per se, the learned Arbitrator cannot be held to be ineligible under Section 12(5) of the A&C Act to act as an arbitrator.

9. A challenge to the appointment of an arbitrator, other than on the ground of ineligibility as specified under Section 12(5) of the A&C Act, is required to be made as per the procedure set out in Section 13 of the A&C Act. Failing any agreement between the parties, such a challenge is to be made in the first instance before the arbitral tribunal. If the learned arbitrator does not recuse from the proceedings, he is required to pass an order in respect of the challenge and if the arbitrator rejects the challenge, he has to proceed to make an award. In terms of Section 13(5) of the A&C Act, the party challenging the arbitrator may challenge the arbitral award under Section 34 of the A&C Act. However, it is not open for the party to seek recourse to this Court in this regard prior to the delivery of the