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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
Caparo Financial Solutions Limited - Appellant
Versus
Jem and Associates - Respondent
O.M.P. (T) (COMM.) 1 of 2021
Decided On : 15-02-2021
| Table of Content |
|---|
| 1. grounds for objection to arbitrator. (Para 1 , 2) |
| 2. parties consent to substitute arbitrator. (Para 3 , 4) |
| 3. court's appointment of substitute arbitrator. (Para 5 , 6) |
| 4. petition disposed with directions. (Para 7 , 8) |
(Video-Conferencing)
1. Consequent to an objection having been raised by the respondent, regarding the appointment of Hon'ble Mr. Justice N.K. Modi, a retired Judge of the High Court of Madhya Pradesh, as the arbitrator to arbitrate on the disputes between the petitioner and the respondent, premised on Section 12(5) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act") read with the Seventh Schedule thereto and the judgment of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517: the learned arbitrator recused from the proceedings.
2. This provoked the petitioner to file the present petition before this Court, seeking appointment of a substitute arbitrator.
3. Mr. Ram, learned Counsel for the respondent has, on instructions, submitted that his client has no objection to the appointment of Hon'ble Mr. Justice N. K. Modi as the substitute arbitrator by this Court, in exercise of jurisdiction under Section 12(5) of the 1996 Act, and that the objection voiced before the learned arbitrator was on a matter of principle.
4. Learned Counsel for the parties also agree, ad idem, that the learned arbitrator could continue the proceedings from the point where the proceedings stood discontinued at the stage of his recusal.
5. Accordingly, this petition is disposed of by appointing Hon'ble Mr. Justice N.K. Modi (retired), who was earlier conducting the arbitral proceedings between the parties, as the substitute arbitrator under Section 12(5) of the 1996 Act.
6. The learned arbitrator would be entitled to continue the arbitral proceedings from the point where they stood at the time of his recusal. As this is a substitute appointment, under Section 15(2) read with Section 12(5) of the 1996 Act, the mandate of the learned arbitrator would commence afresh from today.
7. Both sides submit that the learned arbitrator has requested them to appear before him on 15th March, 2021. They may do so accordingly.
8. With the above observations, this petition stands disposed of.
Neutrality of the arbitrator is essential; a substitute arbitrator can be appointed by mutual consent to maintain fairness in arbitration proceedings.
Section 12(5) of the Arbitration and Conciliation Act mandates the termination of an arbitrator's mandate if applicable, ensuring appointment of a qualified substitute arbitrator for fairness in proc....
An arbitrator cannot be unilaterally appointed in violation of Section 12(5) of the Arbitration and Conciliation Act, 1996; such an appointment is unsustainable.
Court emphasized that arbitration must preserve progress and ensure equitable resolution of disputes as per contractual terms.
The court allows appointment of a substituted Arbitrator without restarting proceedings, ensuring continuity after the original Arbitrator's demise.
Proper proceedings under the Arbitration and Conciliation Act can include substitution of an arbitrator when a nominated arbitrator returns the reference.
A substituted arbitrator can be appointed under the Arbitration and Conciliation Act, 1996, following the demise of the previous arbitrator without objection from the parties involved.
Section 11 of the Arbitration and Conciliation Act, 1996 does not provide for the substitution or termination of the mandate of an arbitrator, and cannot be invoked to substitute an arbitrator appoin....
The main legal point established is the court's authority to appoint a substitute arbitrator under Section 15 of the Arbitration and Conciliation Act, 1996, when the initially appointed arbitrator fa....
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