Unilateral appointment of an arbitrator without consent is impermissible, and the court has jurisdiction to interfere when a challenge is raised on the ground of ineligibility of an arbitrator under Section 12(5) of the Arbitration and Conciliation Act, 1996.

JUDGMENT

Vibhu Bakhru, J. - The petitioner has filed the present petition under Sections 14 and 15 of the arbitration and Conciliation act, 1996 (hereafter 'the a&C act') praying that the mandate of the arbitrator, one Mr Manoj Kumar Verma, be terminated as he was unilaterally appointed by the respondent. The petitioner further prays that another arbitrator be appointed in his place.

2. There is no dispute that the said arbitrator was appointed unilaterally by the respondent to adjudicate the disputes that have arisen between the parties in connection with a Partnership Deed dated 01.05.2018 (hereafter 'the Partnership Deed'). In terms of the Partnership Deed, the petitioner and respondent had agreed that the business of the firm shall be carried out under the name - M/s Ocean Exim India (respondent no.2).

3. On 14.01.2020, respondent no. 1 issued a legal notice to the petitioner and respondent no. 2 invoking the arbitration agreement (Clause 12 of the Partnership Deed) and further appointed Mr Manoj Kumar as the Sole arbitrator. The petitioner responded to the said notice by a letter dated 03.03.2020/05.03.2020 sent by his advocate.

4. Respondent no.1 (hereafter 'the respondent') states the petitioner did not respond to the legal notice dated 14.01.2020 but has now, filed a forged and fabricated reply dated 03.03.2020. He further claims that the legal notice dated 14.01.2020 was followed by another notice dated 04.02.2020, which has been concealed by the petitioner.

5. Mr Manoj Kumar Verma sent a letter dated 05.06.2020 accepting his appointment as an arbitrator. The reference to the arbitration agreement in his letter is not the Partnership Deed but another agreement. admittedly, no hearings were held thereafter due to the lock down imposed by the concerned authorities in the wake of the outbreak of the Covid-19 pandemic.

6. Mr Verma issued another notice dated 11.09.2021 stating that the arbitration proceedings were stayed due to the pandemic but he had decided to commence with the proceedings. Further, he directed the parties to appear at his residence on 27.09.2021

7. It is also the respondent's case that the petitioner did not object to the appointment of the learned arbitrator at the material time and therefore, is precluded from raising any objections at this stage.

8. The respondent further states that the present petition is not maintainable as the only recourse available to the petitioner is to make an application under Sections 12 or 13 of the a&C act before the arbitral Tribunal.

9. Next, the learned counsel for the respondent submits that once an arbitral Tribunal is appointed, there is no scope for interference by this Court in such appointment. He referred to the decision of the Supreme Court in SBP & Co. v. Patel Engineering Ltd & anr.: (2005) 8 SCC 618 and drew the attention of this Court to paragraph 47 of the said decision. In that case the Supreme Court had observed that once the matter reaches the arbitral Tribunal, the High Court would not interfere with the orders passed by the arbitral Tribunal save and except under Section 37 of the a&C act or under Section 34 of the a&C act. He also referred to the decision of this Court in Priknit Retails Ltd. v. aneja agencies: (2013) 198 DLT 763, in support of the aforesaid contentions.

10. Before proceeding further, it is relevant to refer to the arbitration Clause as contained in Clause 12 of the Partnership Deed. The same reads as under:-

'12. aRBITRaTION

Whenever there by any difference of opinion or any dispute between the partners the partners shall refer the same to an arbitration of one person. The decision of the arbitration so nominated shall be final and binding on all partners such arbitration proceedings shall be governed by Indian arbitration act, which is in force.'

11. It is clear from the arbitration agreement that it was not open for the respondent to unilaterally appoint any individual as an arbitrator.

12. There is some controversy whether the petitio