The challenge for the appointment of Arbitrator under Section 13 of the Act can only be made along with the final award under Section 34.

JUDGMENT

(Prayer: Arbitration Original Petition filed under Sections 14 and 15 read with Schedule V of the Arbitration and Conciliation Act, 1996 to terminate the mandate of the Hon''ble Mr. Justice G.M.Akbar Ali and Hon''ble Ms. Justice K.B.K.Vasuki by setting aside the order passed in 2/2022 dated 03.02.2023 and to consequently appoint substitute Arbitrators to proceed further in the Arbitration and to fix the fees for the newly appointed Arbitrators.)

This Arbitration Original Petition has been filed under Sections 14 and 15 read with Schedule V of the Arbitration and Conciliation Act, 1996 (hereinafter called as “the Act”) to terminate the mandate of the Hon''ble Mr. Justice G.M.Akbar Ali and Hon''ble Ms. Justice K.B.K.Vasuki by setting aside the order passed in 2/2022 dated 03.02.2023.

2. Mr.Ramanlal, learned Additional Advocate General appearing for the petitioner would submit that this petition has been filed to terminate the Mandate of the learned Arbitrators as they have become de jure unable to perform their functions by virtue of the fact that they fall within the categories 26 and 34 of Schedule V of the Act. Further, he would submit that in the present case, there are two learned Arbitrators namely Hon''ble Ms. Justice K.B.K.Vasuki and Hon''ble Mr. Justice G.M.Akbar Ali. Both the learned Arbitrators are having office at the same premises and also having professional relationship and therefore, they are de jure unable to perform their function as Arbitrators. In this regard, an application was also filed before the learned Arbitrators and the same was rejected vide order dated 03.02.2023. Aggrieved over the same, the present original petition has been filed to set aside the aforesaid order passed by the learned Arbitrators dated 03.02.2023.

3. The learned Additional Advocate General appearing for the petitioner would refer to Category 26 to Schedule V of the Act, which reads as follows:

“26. The Arbitrator was within the past three years a partner of, or otherwise affiliated with, another arbitrator or any of the counsel in the same Arbitration.”

4. Further, at the time of arguments, he would refer to Category 34 to Schedule V of the Act, which talks about the affiliate of one of the parties. He would also submit that though these issues were raised before the learned Arbitrators, they had arrived at the conclusion that they are all independent professionals and they are merely shared their office. Apart from sharing office, they did not have any professional relationship with each other and they are also not connected with any of the firm jointly. By referring the said conclusion of the learned Arbitrators, the learned Additional Advocate General would submit that the observation of the learned Arbitrators is not correct and in fact, since they are having office in the same premises and having professional relationship, they are not supposed to act as Arbitrators.

5. Further, he would fairly submit that both the learned Arbitrators were appointed in some other cases and they had also decided the matters. However, the professional relationship between the learned Arbitrators came to be known recently, due to which the petitioners had filed an application before the learned Arbitrators and the same was rejected. Further they have also not disclosed their interest in terms of Section 12(1)(b) read with Schedule VI of the Act. Therefore, he would submit that there is a justifiable doubt with regard to the independence and impartiality of the learned Arbitrators. Hence, he prays that the said appointment has to be terminated in terms of Sections 14 and 15 of the Act.

6. In support of his submission, he had also referred to a judgement of the Hon''ble Apex Court in Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Limited reported in (2017) 4 SCC 665 and prays for setting aside the order passed by the learned Arbitrators and also to terminate the Mandate of the learned Arbitrators.

7. Per contra, Mr.Vi