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IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, AJAY DIGPAUL, JJ
BHADRA INTERNATIONAL INDIA PVT LTD AND ORS. – Appellant
Versus
AIRPORTS AUTHORITY OF INDIA – Respondent
| Table of Content |
|---|
| 1. appointment of arbitrator by one party was consented to by the other. (Para 1 , 3) |
| 2. objection raised late in proceedings undermines its validity. (Para 4 , 17 , 21) |
| 3. intentional relinquishment of known rights must be evident in arbitration cases. (Para 12 , 36) |
JUDGMENT :
C. HARI SHANKAR, J.
The Issue, and our view
1. The contract between the appellants and respondent Airport Authority of India [“AAI” hereinafter] envisages arbitration of disputes by a Sole Arbitrator to be appointed by the respondent. In terms thereof, the appellants wrote to the AAI, call on the respondent to appoint a Sole Arbitrator. The respondent appointed a learned retired Judge of the Supreme Court. Before learned Arbitrator, both the parties submitted that they had no objection to his arbitrating on the disputes. The Record of Proceedings, so prepared, was communicated to the parties, and neither party objected. An arbitral award was passed. The unsuccessful appellant challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 [“the 1996 Act” hereinafter]. No dispute, regarding the legality of appointment of the Arbitrator, was raised in the Section 34 petition. How
Parties consenting to arbitration and participating without objection cannot later challenge the arbitral award based on alleged unilateral appointment of the arbitrator.
An arbitrator's appointment violating Section 12(5) of the Arbitration Act without an express written waiver is invalid, rendering any adjudicated award void.
Participation in arbitration without objection constitutes a waiver of the right to challenge the appointment of the arbitrator, as per Sections 4 and 12 of the Arbitration and Conciliation Act.
The necessity for an express written waiver to validate an arbitrator's appointment under Section 12(5) of the Arbitration and Conciliation Act, 1996.
The main legal point established in the judgment is the requirement of an express agreement in writing to waive the applicability of Section 12(5) of the Arbitration and Conciliation Act, 1996.
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