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IN THE HIGH COURT OF DELHI AT NEW DELHI
AVNEESH JHINGAN
Railways Board, Ministry Of Railways – Appellant
Versus
Titagarh Rail Systems Limited – Respondent
JUDGMENT :
AVNEESH JHINGAN, J.
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') is filed aggrieved of the arbitral award dated 05.08.2024 (hereinafter 'the award').
BRIEF FACTS
2. The brief facts are that the petitioner issued a notice inviting tender for 'Manufacture and Supply of BCNAHSM1 Wagons'. The respondent was the successful bidder. On 30.09.2020 a contract valuing Rs.499,56,48,000/- for 1652 wagons was awarded.
2.1 There was a dispute between the parties with regard to re- fixation of the delivery period, the imposition of liquidated damages (for short 'LD') and denial clause. The petitioner on 20.03.2023 short- closed the contract; cancelled the supply of balance 390 wagons and forfeited the bank guarantee.
2.2 On 29.05.2023, the respondent issued a notice under Section 21 of the Act and vide letter dated 11.08.2023 proposed the name of one arbitrator. Petition filed by the respondent under Section 11 of the Act was withdrawn on 03.10.2023. The respondent on 17.10.2023 consented for fast-track arbitration as provided in clause 2905(c)(ii)(a) of the Indian Railway Standard Conditions of Contract (for short 'IRS'). On 16.11
A unilateral appointment of an arbitrator from an ineligible party is void ab initio without an express written waiver of Section 12(5) of the Arbitration and Conciliation Act, which cannot be implie....
An arbitrator's appointment violating Section 12(5) of the Arbitration Act without an express written waiver is invalid, rendering any adjudicated award void.
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.
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 appointment of an arbitrator must comply with the Arbitration and Conciliation Act, particularly Section 12(5), which disqualifies certain individuals from serving as arbitrators.
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