Unilateral appointment of an Arbitrator by one party cannot be sustained, and any award or order purporting to cast a liability on the objecting party would be non-est.

Najmi Waziri, J.(Oral)

The hearing has been conducted through hybrid mode (physical and virtual hearing).

1. This appeal impugns the order of the learned District Judge (Commercial), Central District, Tis Hazari Courts, Delhi dated 18.09.2021 in OMP (COMM.) No. 95 of 2020 which has set aside the Sole Arbitrator's award dated 22.11.2019 in respondent's petition under section 34 of Arbitration & Conciliation Act, 1996 (`The Act'), on the ground that it was rendered by an Arbitrator who was not appointed with the respondent's consent. Reliance was placed on the dicta of the Supreme Court in Perkins Eastman Architects DPC & Anr. V. HSCC (India) Ltd., (2020)20 SCC 760, which was rendered on 26.11.2019.

2. Mr. Inderbir Singh Alag, learned Senior Advocate appearing on behalf of the appellant submits that: i) no arguments were raised apropos the constitution of the Arbitral Tribunal till the arbitral proceedings were concluded; ii) the award had already been pronounced on 22.11.2019, so the rationale and benefit of Perkins Eastman (supra) was not available before the learned Sole Arbitrator; iii) the issue of the constitution of the Arbitral Tribunal was never pressed substantially nor pursued by the respondent, albeit in a passing remark in his reply, he did say that the Arbitrator was not appointed with his consent; iv) the respondent could not have challenged the award apropos the very constitution of the Arbitral Tribunal as this ground is not available under section 34 of the Act; v) the respondent could have raised such grounds under Section 11(6) of the Act but he chose not to. The appellant places reliance upon the dicta of this Court in Kanodia Infratech Limited vs. Dalmia Cement (Bharat) Limited, (2021)284 DLT 722, inter alia reads as under:

"...Now, even if at this belated stage this Court tests the case of petitioner applying the ratio of law laid down in Perkins Eastman (supra) and TRF Limited (supra), it finds that in those cases the Hon'ble Court had dealt with petition filed under the provisions of Section 11(6) of the Act, whereas the present petition has been filed under Section 34 of the Act, provisions whereof prescribe the ground on which an arbitral award can be challenged and set aside and not the mandate of appointment of Arbitral Tribunal. Hence, reliance placed upon decision in Perkins Eastman (supra) is of no help to the case of the petitioner... "

3. The learned Senior Advocate further submits that a compassionate view needs to be taken since the proceedings have gone ahead and the award was passed; that the lis is an old one and the objective of the Arbitral proceedings is to find a resolution and closure to such lis at the earliest.

4. However, the records show that the issue of appointment was raised at the initiation of the Arbitral proceedings itself. The respondent had objected to the appointment of the Arbitrator and the same is recorded in the impugned order as under:

"...39. The contention made by Ld. Counsel for the respondent no.1 is not convincing. The arbitral record reflects that in the objection/written statement filed on behalf of the petitioner herein, in para 5 of the preliminary objection it is stated by the petitioner

"that the Ld. Arbitrator has no jurisdiction/power to adjudicate the present claim petition of the claimant because the Ld. Arbitrator was not appointed by the written consent of the parties"

However, the Ld. Arbitrator has not considered that objection and the award is silent upon the same.

40. The counsel for the respondent no.1 has rightly contended that the autonomy of the parties to the choice of procedure is the foundational pillar of the arbitration. ..."

5. The learned counsel for the respondent places reliance upon the Bharat Broadband Network Limited v. United Telecoms Ltd., (2019)5 SCC 755, wherein the Supreme Court held as under:

"...17. The scheme of Sections 12, 13 and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to gi