O.M.P. (T) (COMM.) 119/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 31.05.2022

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O.M.P. (T) (COMM.) 119/2021

HIMANSHU SHEKHAR

..... Petitioner

versus

PRABHAT SHEKHAR

..... Respondent

Advocates who appeared in this case:

For the Petitioner

: Mr P. Nagesh, Senior Advocate with Mr

Rajeev Ahuja and Mr Akshay Sharma,

Advocates.

For the Respondent

: Mr Sandeep Sethi, Senior Advocate with Mr

Ravi Prakash and Mr Atif Samim,

Advocates.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

The petitioner has filed the present petition under Sections 14(2)

and 15 of the Arbitration & Conciliation Act, 1996 (hereafter the ‘A&C

Act’), inter alia, praying that the mandate of the Sole Arbitrator – Mr.

Subhash Chandra Batra (hereafter the ‘Arbitrator’) be terminated and

an independent arbitrator be appointed in his place.

2.

The petitioner claims that the Arbitrator is ineligible to act as an

arbitrator by virtue of Section 12(5) of the A&C Act. He is related to

the parties and they have not entered into any agreement waiving their

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002132

O.M.P. (T) (COMM.) 119/2021

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right to waive the ineligibility, in terms of the proviso to Section 12(5)

of the A&C Act.

3.

In addition to the above, the petitioner also avers that the manner

in which the Arbitrator has conducted the proceedings, indicates his

bias. In particular, it is contended that the Arbitrator has passed orders

granting interim relief without any application to the aforesaid effect. It

is further submitted that the Arbitrator has also passed orders against

the persons, who are not signatories to the Arbitration Agreement or to

the arbitral proceedings.

4.

It is well settled that Sections 12 and 13 of the A&C Act provide

for the mechanism regarding challenge to the appointment of an

arbitrator. A party challenging the appointment of an arbitrator would

necessarily have to confine itself to that scheme. In terms of Section

13(1) of the A&C Act, the parties are required to follow the procedure,

as agreed, for challenging an arbitrator. Section 13(2) of the A&C Act

provides that failing any such procedure, the party who intends to

challenge an arbitrator is required to file a written statement setting out

the reasons for such a challenge within a period of fifteen days of

becoming aware of the constitution of the arbitral tribunal or the

circumstances as is referred to in Section 12(3) of the A&C Act. If the

arbitrator does not withdraw from the proceedings, the arbitral tribunal

is required to decide the challenge. If the challenge is not sustained, the

arbitral tribunal is required to proceed and make an award. The party

challenging an arbitrator does not have any recourse to courts prior to

the arbitral tribunal rendering the award. Section 13(5) of the A&C Act

This is a digitally signed Judgement.

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makes it clear that in such a case, the party challenging an arbitrator can

make an application for setting aside the award, in accordance with

Section 34 of the A&C Act.

5.

In Progressive Career Academy Pvt. Ltd. v. FIIT Jee Ltd.¹,a

Division Bench of this Court has held as under:

“16.

On a reading of Section 13(5), the

legislative intent becomes amply clear that

Parliament did not want to clothe the Courts with the

power to annul an Arbitral Tribunal on the ground of

bias at an intermediate stage. The Act enjoins the

immediate articulation of a challenge to the authority

of an arbitrator on the ground of bias before the

Tribunal itself, and thereafter ordains that the

adjudication of this challenge must be raised as an

objection under Section 34 of the Act. Courts have to

give full expression and ef