JUDGMENT :

YASHWANT VARMA, J.

1. The Court by means of the present order, and with the consent of parties, proposes to dispose of these two connected petitions. While O.M.P. (I) (COMM.) No. 295/2022 has been preferred under Section 9 of the Arbitration and Conciliation Act, 1996 [The Act], ARB. PET. No. 1303/2022 came to be instituted subsequently and seeks the constitution of an Arbitral Tribunal in accordance with the provisions of Section 11(4) and (6) of the Act.

2. The record would reflect that on the petition preferred under Section 9, on 03 November 2022 a learned Judge of the Court proceeded to pass the following order:

“1. Learned counsel appearing for the respondent states, as per her instructions, the matter has to be heard and decided by this Court.

2. In other words, respondent is not agreeable for appointment of an Arbitrator. She states, reply shall be filed by Tuesday, i.e. November 8, 2022.

3. Till the next date of hearing, status quo with regard to invocation of the bank guarantee, which is the subject matter of the present petition, shall be maintained.

4. List on November 14, 2022.”

It is that order which has continued till these two petitions were taken upon for final disposal today.

3. From the material which has been placed on the record by way of the petition under Section 11, it is manifest that the dispute between the parties emanates from a Lease Agreement dated 04 September 2017. The petitioner appears to have firstly initiated the conciliation process as envisaged under the agreement in terms of its letter of 14 March 2022. Consequent to conciliation proceedings having failed, a conciliation failure report came to be drawn and submitted whereafter the petitioner by its letter of 18 August 2022 called upon the Delhi Metro Rail Corporation [DMRC] for constitution of an Arbitral Tribunal. This was followed by a reminder letter dated 12 September 2022 addressed to the DMRC by the petitioner in reiteration of the said request. It becomes relevant to note that responding to the notice of 18 August 2022, the DMRC by its letter of 15 September 2022 had, while purporting to act in furtherance of clause 11.3 of the Lease Agreement, forwarded a panel of five arbitrators to the petitioner requesting it to nominate one arbitrator who may be then treated to be a constituent of the three-member Arbitral Tribunal which was to enter upon the reference. The petitioner had questioned the aforesaid action of the DMRC asserting that it was entitled to choose an arbitrator out of the entire panel that was maintained by it. It is thereafter that the petition under Section 11 came to be preferred before this Court.

4. The dispute insofar as the aforesaid question is concerned is no longer res integra and stands conclusively settled by the Supreme Court in Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Limited, (2017) 4 SCC 665. It becomes pertinent to note that in the said decision while upholding the composition of the panel as drawn by the DMRC and finding that the choice of retired or erstwhile employees of Central Government and Public Sector Undertakings as offered would not be violative of Section 12 of the Act, the Supreme Court had observed as under:

“25. Section 12 has been amended with the objective to induce neutrality of arbitrators viz. their independence and impartiality. The amended provision is enacted to identify the “circumstances” which give rise to “justifiable doubts” about the independence or impartiality of the arbitrator. If any of those circumstances as mentioned therein exists, it will give rise to justifiable apprehension of bias. The Fifth Schedule to the Act enumerates the grounds which may give rise to justifiable doubts of this nature. Likewise, the Seventh Schedule mentions those circumstances which would attract the provisions of sub-section (5) of Section 12 and nullify any prior agreement to the contrary. In the context of this case, it is relevant to mention that only if an arbitrator