The appointment of the arbitrator must adhere to the terms of the arbitration agreement, and challenges to the appointment must fall within the exhaustive grounds enumerated in Section 34(2) of the 1996 Act.

JUDGMENT

1. The petitioners, having suffered an award passed by the learned Arbitral Tribunal, consisting of a sole arbitrator, on 21st January, 2021, have approached this Court under Section 34 of the Arbitration and Conciliation Act, 1996 (the 1996 Act) for setting aside the award.

2. The only ground urged by Mr. Chaudhary, learned counsel for the petitioners, is that the appointment of the arbitrator, who arbitrated on the dispute, was illegal.

3. When this matter had come up before this Court on an earlier occasion, the stand of Mr. Chaudhary was that there was no arbitration agreement in existence between the parties. This stand was vociferously opposed by Ms. Mallika Ahluwalia, learned counsel for the respondent, who undertook to place the arbitration agreement on record.

4. Subsequently, under cover of an affidavit, dated 12th August, 2021, the respondent has placed on record the loan agreement, executed between the parties, which contains the following unequivocal arbitration clause:

"2.1 Any Dispute arising out of the Business Loan Agreement, shall be referred to a sole arbitrator, from amongst those listed in Schedule hereto, as per his/her availability, in the order of preference in which they have been set-out. The Parties consent to such appointment of arbitrator and agree that, upon reference of any Dispute to the arbitrator and acceptance by the sole arbitrator, no separate consent of the Parties will be required for the appointment."

5. The Schedule to the aforesaid arbitration agreement enlists the names of the following six persons, from whom, according to the afore-extracted Clause 2.1, the arbitrator was to be appointed, in order of preference, proceeding from the first to the sixth:

"(i) Mr. S.S. Yadav :.

(ii) Mr. Parveen Agarwal

(iii) Mr. Ashish Wad

(iv) Mr. Sakie Jakharia

(v) Mr. Vivek Malik

(vi) Mr. Arjun Pant"

6. Consequent to arising of disputes between the parties, Mr. Chaudhary concedes the fact that, on 25th August, 2020, the respondent wrote to the petitioner, stating that, in accordance with the afore-extracted Clause 2.1, that it was appointing Mr. S. S. Yadav, an Advocate, being the first name in the panel in the Schedule to the arbitration agreement, as the sole arbitrator to arbitrate on the disputes, and calling for the petitioner's concurrence thereon.

7. The petitioner did not respond to this communication, and did not, in any manner, oppose the appointment of Mr. Yadav.

8. Thereafter, notices of hearing were issued to the petitioner by the sole arbitrator Mr. S.S. Yadav on 31st August, 2020 and 19th October, 2020. Mr. Chaudhary acknowledges that his client did not respond to these notices either.

9. The petitioner chose not to participate in the arbitral proceedings, or to move any application, either before the arbitrator or before this Court, challenging the authority of Mr. Yadav to arbitrate.

10. Resultantly, the arbitrator came to pass the award dated 22nd January, 2021, which forms subject matter of challenge in the present petition.

11. The petitioner has chosen, in the present petition, to remain studiedly silent regarding the arbitration agreement between the petitioner and respondent, or the fact that, vide the said agreement, the parties had, in fact, agreed to the appointment of one person from the panel of six, in the schedule appended to the arbitration agreement. Even during oral submissions on earlier dates of hearing, the specific stand of Mr. Chaudhury was that there was no arbitration agreement between the parties. On being confronted, today, with the arbitration agreement, Mr. Chaudhury modifies his stance to contending that several documents were signed by his client, and that, though he has signed the arbitration agreement - which, thankfully, he does not deny - he had not received any copy thereof.

12. Though, even on this ground, the present petition is liable to be dismissed, as having been filed by resort to deliberate concealment and suppression of facts, I have, nevertheless, hea