Previous judicial involvement does not disqualify an arbitrator under the Arbitration and Conciliation Act, as long as independence and impartiality are maintained.

JUDGMENT :

(Sunita Agarwal, CJ.)

1. This petition raises an interesting question relating to applicability of Section 12 and 14 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act, 1996’ for short) to assert that nomination made by the respondent No. 1 – original claimant is contrary to the provisions of Section 12 (5) of the Act, 1996. The person sought to be appointed as an Arbitrator by respondent No. 1 has a previous involvement in the very same case and the appointment, as such, is hit by the Section 12 (5) read with item No. 16 of the Seventh (‘VII’) Schedule.

2. Though in the petition, various averments have been made of the appointment being contrary to the provisions of Section 11 (6) of the Act, 1996, but all the stated points have not been pressed during the course of arguments. This Court, is called upon to answer the only questions whether the Arbitrator appointed by respondent No. 1 is incapacitated or ineligible to act as an Arbitrator ? Whether disqualification in Seventh (‘VII’) Schedule, pressed into service by the petitioner would be attracted in the facts of the instant case ?

3. It may be noted that owing to some disputes and differences between the parties, a three member Arbitral Tribunal was constituted comprising of two party – nominated Arbitrators and one Presiding Arbitrator. The tribunal was later reconstituted on account of the sudden demise of the Presiding Arbitrator. While the arbitration proceedings were at the stage of final hearing, one of the nominee Arbitrator for respondent No. 1 had recused himself. In light of the recusal, the reconstituted tribunal by the procedural order dated 11.08.2023 had adjourned the matter sine die with the liberty to get the matter revived on the nominations of the Arbitrator, by respondent No. 1.

4. It is contended that the nomination of the Arbitrator by e-mail dated 16.09.2023 sent by respondent No. 1, falling within the instances of the Seventh (‘VII’) Schedule of the Act, 1996, inasmuch as, the nominated Arbitrator had been involved in the present dispute in his capacity as a sitting Judge of this Court. A copy of the e-mail dated 16.09.2023 sent by respondent No. 1 addressed to the members of the Arbitral Tribunal with the request to revive the proceeding, appended with the petition has been placed before the Court.

5. While intimating the appointment of Arbitrator by e-mail dated 16.09.2023, it was also intimated by the respondent No. 1 therein that the orders passed by the Arbitral Tribunal under Section 17 of the Act, 1996 on 04.12.2017 and 23.12.2017 were challenged before the Commercial Court, Rajkot by preferring two appeals, which came to be dismissed on 09.03.2018. The common order dated 09.03.2018 passed by the Commercial Court as also the interim order passed under Section 17 by the erstwhile Arbitral Tribunal was challenged before the High Court by respondent No. 1 namely Deendayal Port Trust by filing Special Civil Application No. 4753 of 2018 and Special Civil Application No. 4759 of 2018. By common judgment dated 12.06.2018, Special Civil Application No. 4753 of 2018 had been dismissed, whereas Special Civil Application No. 4759 of 2018 came