The main legal point established in the judgment is the importance of neutrality and impartiality of the Arbitrator in the appointment process, as well as the need for a broad-based panel of arbitrators to ensure fairness and transparency in the arbitration process.

JUDGMENT

1. A petition under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act') has been filed for appointment of the Arbitrator.

2. It is submitted in the petition that the respondent-Delhi Metro Rail Corporation (hereinafter referred to as 'DMRC') had invited open bids by way of Open e-Tender bearing NIT No.118A0004 for licensing of commercial space/ area at different floors/ levels at New Delhi Metro Station of Delhi Airport Express Line of DMRC network on 'as is where is' basis. Subsequent to the Pre-Bid, site visit was made on 19th July, 2019 by the petitioner who then formulated and submitted its Bid on 08th August, 2018. The petitioner was declared the successful bidder in terms of Letter of Acceptance dated 22nd October, 2018 and the Contract was accorded to it. Four license Agreements dated 04th February, 2019 were executed which were duly registered on 26th April, 2019 with the Sub Registrar. Thereafter, the petitioner was called for joint measurement and for taking possession on 11th February, 2019. However, during the joint measurements, it was shocked and surprised to find that the scheduled commercial space/ license areas were in badly damaged condition and was in materially different condition from the one that existed during the Pre-Bid visit held on 19th July, 2018. The actual area sought to be handed over was much less than the area as represented in the Tender. The petitioner immediately called upon the respondent to rectify the defects and to restore the scheduled commercial space in the same position and condition as it existed at the time of Pre-Bid visit. The possession of Schedule II, III, IV area was deferred since it was not offered on 'as is where is' basis. For Schedule I, the possession cannot be said to have been handed over/ taken till the time the defects were rectified.

3. However, despite the repeated requests, DMRC issued Letter of Deemed Handing Over of the Schedule II, III and IV Areas. When the petitioner raised issues with the officials of DMRC, they orally assured that the action would be taken to repair and rectify the defects and all the concerns of the petitioner would be addressed. It was further informed that these issues were already pending consideration before the Competent Authority. Despite numerous correspondences, the respondent failed to take any action and even refused to make functional the essential common services like lift, escalators, toilets etc. which were available at site and were necessary and essential for the utilization of the areas and spaces. Moreover, plans, drawings and other permissions pending with the DMRC were not processed despite lapse of considerable period of time.

4. The DMRC thereafter wrongfully raised Invoices for payment of License Fee and issued Cure Notice, even though the License Fee could only commence after the rectification/ removal of the defects and the commercial space was restored and handed over in accordance with the Schedules.

5. The petitioner approached High Court of Delhi seeking interim relief by filing O.M.P.(I)(Comm) 254, 255, 256 and 257 in 2019. The respondent was restrained from taking any coercive steps vide Order dated 06th September, 2019 which is still continuing.

6. The DMRC thereafter carried out some rectification and restoration work, but neither it has not been completed nor the drawings, plants and permissions approved.

7. The petitioner then issued a Notice of Invocation of Arbitration dated 02nd November, 2019 invoking Clause 13 of the License Agreement which was duly served upon the respondent on 05th November, 2019. Since, the claim was above Rs. 50 lakhs, the petitioner nominated its nominee Arbitrator Hon'ble Mr. Justice Permod Kohli (Retired) and further suggested that considering the cost, time and efficiency, the Sole Arbitrator possessing the qualification of retired High Court Judge be appointed with the consent of the respondent.

8. The respondent vide its letter dat