The court established that an arbitrator appointed by an ineligible individual cannot act, and waivers of objections regarding ineligibility must be expressed in writing, not inferred by conduct.

JUDGMENT

Vibhu Bakhru, J. (Oral)--The matter is taken up today as 18.10.2021 was declared a holiday.

2. The petitioner has filed the present petition under Sections 14 & 15 of the Arbitration and Conciliation Act, 1996 (hereafter the `A&C Act') praying that the mandate of the Arbitral Tribunal be terminated and an independent and impartial arbitrator be appointed in substitution of the learned Arbitrator.

3. The respondent had issued a Work Order dated 30.11.2012 in respect of Civil, Structural & Finishing Works for Tower Tl, T2, T7, Club, STP & other Non Tower Areas and other works in favour of the petitioner. Thereafter, on 04.02.2014, the respondent issued another Work Order for the balance Civil, Structural & Finishing Works for Tower T8, T6, T5, T4 and T3 & corresponding Non Tower Areas of the project known as "The Hermitage", which was being developed by the respondent. On 08.10.2014 and 19.03.2016, addendums to the Work Order were issued. In the meanwhile, the respondent issued another Work Order dated 15.02.2016.

4. Disputes arose between the parties in respect of the said Work Orders.

5. On 24.07.2018, the respondent issued a legal notice calling upon the petitioner to pay a sum of Rs.6,40,26,263/- claiming that the said amount was paid in excess of what was due to the petitioner. The petitioner responded to the said notice, whereby it disputed the assertions made by the respondent and also demanded a sum of Rs.6,23,22,425/- as the balance amount due to it. On 19.03.2019, the respondent issued another legal notice reiterating its demand as made in the notice dated 24.07.2018 and additionally, also demanded a sum of Rs.1,00,00,000/- as damages. In view of the aforesaid disputes, by a letter dated 26.04.2019, the Managing Director of the respondent appointed an Advocate as the Sole Arbitrator to adjudicate the disputes between the parties.

6. Thereafter, the learned Arbitrator entered upon reference. The respondent filed its Statement of Claims and the petitioner filed its Statement of Defence. The petitioner also filed its counter-claims.

7. On 15.02.2020, the petitioner filed an application seeking recusal of the learned Arbitrator on the ground that he was ineligible to act as such. The learned Arbitrator rejected the said application by an order dated 22.02.2021.

8. Mr Grover, learned counsel appearing for the petitioner relies on the decisions of the Supreme Court in TRF Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377; Bharat Broadband Network Limited v. United Telecoms Limited, (2019) 5 SCC 755; and Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517 in support of his contention that the learned Arbitrator is ineligible to act as an arbitrator as he was unilaterally appointed by the Managing Director of the respondent. The petitioner has also referred to the decision of a Coordinate Bench of this Court in Proddatur Cable TV Digi Services v. Siti Cable Network Limited, (2020) 267 DLT 51.

9. Ms Kaadambari, learned counsel appearing for the respondent submitted that the petitioner acquiesced in the appointment of the Arbitrator and had also participated in the arbitration proceeding without any reservations. The petitioner did not raise any objection regarding the ineligibility of the learned Arbitrator at the material time. She submitted that in the aforesaid circumstances, it must be construed that the petitioner had waived its objection if any. She also submits that the objections raised by the petitioner is at a much belated stage and there