The court clarified the necessity of mutual consent in the appointment of arbitrators to avoid conflicting awards and emphasized the importance of transparency regarding prior appointments.

JUDGMENT

I.A.14662/2021 (u/S 151 CPC filed by respondent No.1)

1. Against the order dated 12.08.2021 passed by this Court, wherein this Court had appointed Mr.Justice (Retd.) Pankaj Jaiswal the sole Arbitrator to adjudicate the disputes raised in the main petition, respondent No.1-Shipra Estates Ltd. had preferred a Special Leave Petition [Special Leave to Appeal (C) No(s). 13913/2021], which was disposed of on 27.09.2021 by the Hon'ble Supreme Court holding as under:

"Mr. Kapil Sibal, learned senior counsel contends that the concession given by the advocate appearing for the petitioner before the High Court was only to agree to the appointment of Arbitrator, but not for appointing Justice (Retd.) Pankaj Jaiswal, Former Judge of the High Court of Judicature at Allahabad, Uttar Pradesh. For, Justice Vikramajit Sen, Former Judge of the Supreme Court of India was already appointed by the Court vide order dated 02.08.2021.

This grievance cannot be entertained by way of special leave petition. It is for the High Court to clarify the position as to whether the learned counsel appearing for the petitioner had or had not agreed on the name of the Arbitrator mentioned in the impugned order dated 12.08.2021. The petitioner may take out an appropriate application before the High Court."

2. Pursuant to the aforesaid order of the Hon'ble Supreme Court, applicant/defendant No.1 has preferred the present application inter alia praying that the order dated 12.08.2021 be recalled to the extent of appointment of Mr. Justice (Retd.) Pankaj Jaiswal as Arbitrator, as defendant No.1 never consented to this appointment and has further sought modification to the effect that Mr. Justice (Retd.) Vikramajit Sen be appointed as Arbitrator in this case.

3. At the hearing, Mr. Rakesh Khanna, learned senior counsel appearing on behalf of applicant/respondent No.1 submitted that the judgment dated 12.08.2021 was passed by this Court without affording an opportunity of hearing to respondent No.1 and that counsel appearing on behalf of respondent No.1 was unable to place before this Court the order dated 02.08.2021 passed by a Coordinate Bench of this Court in [ARB.P. 513, 514 & 516 of 2021, Annexure-A4] wherein Mr. Justice (Retd.) Vikramajit Sen was appointed sole Arbitrator to adjudicate the disputes with regard to Loan Agreements mentioned therein.

4. Learned senior counsel next submitted that the Loan Agreements and Agreement to Sell dated 30.05.2021 have a clear nexus and so, to avoid conflicting Awards, these cases should be referred to a common arbitral tribunal. In support of his submissions, learned senior counsel relied upon decision of Hon'ble Supreme Court in DLF Home Developers Limited Vs. Rajapura Homes Private Limited & Anr., (2021) SCC OnLine SC 781.

5. The present application is vehemently opposed by Mr. Rajiv Nayar, learned senior counsel appearing on behalf of respondent No.4, who submitted that at the time of hearing on 12.08.2021, learned counsel appearing on behalf of defendant No.1 had accorded concession to the appointment of Arbitrator by this Court and did not at all recommend the name of Mr. Justice (Retd.) Vikramajit Sen, even though this Court had called upon the parties to put-forth their recommendations for appointment of Arbitrator and it is only when no recommendation was made, that this Court had appointed the Arbitrator.

6. It was emphatically submitted by learned senior counsel for respondent No.4 that the earlier round of petitions [ARB.P. 513, 514 & 516 of 2021, Annexure-A4] wherein Mr. Justice (Retd.) Vikramajit Sen has been appointed the sole Arbit