Unilateral appointment of a sole arbitrator is impermissible as it violates neutrality. Statutory ineligibility under the governing arbitration law can only be waived by an express agreement in writing executed after the dispute has arisen, rather than by mere conduct, participation in proceedings, or seeking extensions of the mandate.

JUDGMENT

SUBRAMONIUM PRASAD, J.

1. The Petitioner has filed FAO(OS)(COMM) No. 40 of 2024 and FAO(OS)(COMM) No. 41 of 2024 under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”), seeking to appeal against the common Judgment and Order dated 01.12.2023 (hereinafter referred to as “Impugned Judgment”) passed by this Court in OMP (COMM) No. 470 of 2023, and OMP (COMM) No. 469 of 2023 respectively, wherein this Court allowed these Petitions filed by the Respondent under Section 34 of the Act and set aside the final arbitral awards, both dated 28.06.2023 (hereinafter referred to as “Impugned Awards”).

2. Both the Impugned Awards were delivered by the same Sole Arbitrator between the parties, albeit with respect to different projects. As the parties were same and the contentions raised were common in both the petitions, the same were taken up for consideration together by the learned Single Judge of this Court vide the Impugned Judgment. This Court, in the same vein, will take up both the cases, together.

3. Shorn of unnecessary details, the facts leading to the filing of the present Appeals are as follows:-

i. The impugned award in FAO(OS)(COMM) No. 41 of 2024, was passed in the context of Letter of Acceptance (LOA) dated 04.05.2010 issued to the Respondent being the lowest bidder for the project to construct 430 flats in eight towers in a housing scheme near Jhajjar Village, Prem Nagar, Dehradun, for an estimated cost of Rs. 98.01 crores (hereinafter referred to as “Dehradun Project”). An agreement was executed on 10.06.2010.

ii. The impugned award in FAO(OS)(COMM) No. 40 of 2024, was passed in the context of LOA dated 30.11.2017 issued to the Respondent to complete the balance work at the project site comprising 545 flats in eight towers for an amount of Rs. 38.33 crores (hereinafter referred to as “Meerut Project”). Notably, the Petitioner in the year 2010 had launched a housing scheme at Shatabdi Nagar, Meerut, which it had awarded to one M/s Omaxe Infrastructure & Construction Limited. However, the contract was terminated on 27.10.2017 resulting in issuance of LOA in favour of the Respondent. An agreement was executed on 17.01.2018.

iii. Disputes arose between the parties regarding delayed construction and other ancillary issues connected therewith, in both, the Dehradun Project and the Meerut Project.

iv. On 13.07.2019, the Appellant terminated the contract with respect to the Dehradun Project by invoking Clause 7 of the Contract Agreement and the balance/unfinished work was undertaken at the risk and cost of the Respondent.

v. On 22.06.2019, the Appellant terminated the Contract with respect to the Meerut Project for non-performance.

vi. As per clause 18.2 of the Contract Agreement dated 04.05.2010/ Clause 18.2 of GCC forming part of the Agreement dated 10.06.2010, executed for the Dehradun Project, the Chairman of the Appellant vide appointment letter dated 24.07.2019 appointed Mr. Vinod Kumar Maheshwari as the Sole Arbitrator for adjudication of disputes.

vii. Similarly, as per clause 18.2 of the Contract Agreement dated 30.11.2017/Clause 22 of the Agreement dated 17.01.2018, executed for the Meerut Project, the Chairman of the Appellant vide appointment letter dated 15.07.2019 appointed Mr. Vinod Kumar Maheshwari the So