Balbir Singh vs Sarkaghat on 13 July, 2026

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    Himachal Pradesh High Court

    Balbir Singh vs Sarkaghat on 13 July, 2026

    Author: Ajay Mohan Goel

    Bench: Ajay Mohan Goel

                                                                         2026:HHC:28759
    
    
    
    
        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
    
                                              CARBC No. 90 and 91 of 2025
    
    
    
    
                                                                           .
                                              Decided on : 13.07.2026
    
    
    
    
    
          CARBC No. 90 of 2025
    
          Balbir Singh                                                        ....Petitioner
    
    
    
    
    
                       Versus
    
    
    
    
                                                 of
          The Executive Engineer, B & R Division, HPPWD,
          Sarkaghat, District Mandi, HP.                                    ...Respondent
          CARBC No. 91of 2025
    
          The Executive Engineer, B & R Division, HPPWD,
                           rt
          Sarkaghat, District Mandi, H.P.                                        ....Petitioner
    
                       Versus
    
          Balbir Singh                                                        ...Respondent
          Coram
    
    
          The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
          Whether approved for reporting?1 Yes
          CARBC No. 90 of 2025
    
    
    
    
          For the petitioner          :       Mr. J.S. Bhogal, Senior Advocate
    
    
    
    
    
                                              with M/s T.S. Bhogal and Swati
                                              Verma, Advocates.
    
    
    
    
    
          For the respondent          :       M/s S.D. Vasudeva and Ayushi
                                              Negi, Deputy Advocate Generals.
          CARBC No. 91 of 2025
    
          For the petitioner          :       M/s S.D. Vasudeva and Ayushi
                                              Negi, Deputy Advocate Generals.
    
          For the respondent          :       Mr. J.S. Bhogal, Senior Advocate
                                              with M/s T.S. Bhogal and Swati
                                              Verma, Advocates.
    
    
          1
                Whether reporters of the local papers may be allowed to see the judgment?
    
    
    
    
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                                                            2026:HHC:28759
    
    
    
    
        Ajay Mohan Goel, Judge             (Oral)
    

    These two petitions have been filed by the

    .

    SPONSORED

    petitioners against the award dated 24.09.2022 passed by the

    learned Arbitrator in Claim petition titled Balbir Singh vs The

    Executive Engineer, Division Sarkaghat, HPPWD, in terms

    whereof, the claim preferred by the claimant was partly

    of
    allowed. A perusal of the award demonstrates that it was

    passed by Er.Ashok Kumar Chauhan, who was a retired
    rt
    Engineer-in-Chief from the Himachal Pradesh Public Works

    Department, i.e. the contesting respondent-Department

    before learned Arbitrator. Record further demonstrates that

    learned Arbitrator was appointed unilaterally by the serving

    Chief Engineer (Mandi Zone), HPPWD, Mandi, vide

    communication dated 04.03.2021, which is not in dispute.

    2. During the course of hearing of these two

    petitions, learned Senior Counsel appearing for the claimant/

    petitioner argued that in the present case, the award in

    issue is void ab initio and against the Public Policy of India,

    for the reason that the appointment of the learned Arbitrator,

    in the facts and circumstances of the case was bad and thus

    the Award, is non est in the eyes of law. Learned Senior

    Counsel submitted that in terms of sub section (5) of Section

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    12 of the Arbitration and Conciliation Act, 1996 (hereinafter

    to be referred as ‘the Act’ for short), notwithstanding any prior

    .

    agreement to the contrary, any person whose relationship,

    with the parties or Counsel or the subject-matter of the

    dispute, was falling under any of the categories specified in

    the 7th Schedule thereof, such person was ineligible to be

    of
    appointed as an Arbitrator. Learned Senior Counsel further

    submitted that
    rt proviso to this sub-section saved the

    appointment of the Arbitrator, provided that the parties,

    subsequent to the disputes having arisen between them,

    waive the applicability of this sub-section by an express

    agreement in writing. Learned senior counsel submitted that

    in terms of the 7th schedule of the Act, no one can be an

    Arbitrator, who is an employee, consultant, advisor or has

    any other past or present business relationship with a party.

    Learned Senior Counsel submitted that in the light of this

    bar, obviously, the serving Chief Engineer (MZ) HPPWD,

    Mandi, could not have been an Arbitrator in the case. Learned

    Senior Counsel further submitted that the issue as to whether

    a person, who is barred to be an Arbitrator in terms of

    provisions of 7th Schedule of the Arbitration and Conciliation

    Act, can appoint an arbitrator, has been answered by Hon’ble

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    Supreme Court of India in Perkins Eastman Architects DPC

    and another vs. HSCC (India) Limited, (2020) 20 Supreme

    .

    Court Cases 760, in which judgment, Hon’ble Supreme Court

    has been pleased to hold that in case the Authority

    appointing an Arbitrator is disqualified from being appointed

    as an Arbitrator, then an Arbitrator so appointed by the said

    of
    authority is also disqualified to be an Arbitrator.

    3. On the other hand, learned Deputy Advocate
    rt
    General submitted that record also suggests that after his

    appointment as an Arbitrator, learned Arbitrator in terms of

    order dated 22.04.2021, had conveyed to the parties that he

    has no interest in the subject matter of the dispute between

    the parties or any relationship with any of the parties to the

    arbitration and the parties had conveyed to the Tribunal that

    they have no objection to the appointment of the Arbitrator, to

    arbitrate the dispute between the parties. Learned Deputy

    Advocate General further submitted that as the parties herein

    had waived off their right to object to the appointment of the

    Arbitrator in terms of the proviso to Section 12(5) of the Act,

    the objection taken by learned Senior Counsel for the

    petitioner/claimant was not sustainable in the eyes of law.

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    4. I have heard learned Senior Counsel appearing for

    the claimant as also learned Deputy Advocate General and

    .

    have also gone through the award as also the record of the

    learned Arbitrator.

    5. In the present case, in terms of the contract

    entered between the parties, after a dispute arose between the

    of
    parties, there was unilateral appointment of the learned

    Arbitrator by the Chief Engineer (MZ), HPPWD Mandi. Said
    rt
    appointment was in terms of communication dated

    04.03.2021, which is being reproduced herein below, which

    reads as under:-

    “Subject -In the matter of arbitration between Sh.

    Balbir Singh Govt. contractor Village Tatiha PO &

    Tehsil Sarkaghat Distt. Mandi HP and State of

    HP through Executive Engineer, Sarkaghat

    Division, HP: PWD Sarkaghat for the work

    Metalling/Tarring and CD on Bag Saroli road

    km.0/0 to 4/750 (SH: Removal of formation

    deficiency, CD, P/L soling, M/T, Parapets and

    road sicie drain in km. 0/0 to 4/750 under

    NABARD RIDF-XX. against agreement No. 214

    for the year 2015-16.

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    Whereas disputes have arisen between the

    .

    Executive Engineer. Sarkaghat Division HP:PWD

    Sarkaghat and Sh. Balbir Singh Govt. contractor

    Village Tatiha PO & Tehsil Sarkaghat Distt.

    Mandi HP in respect of above noted work and

    of
    whereas dispute arisen between the parties are

    required to be settled under clause 25 of the
    rt
    agreement No.214 for 2015-16 and to be

    referred to the Sole Arbitration of the person to

    be appointed by the Chief Engineer (MZ)

    HP.PWD. Mandi (HP).

    Therefore, in pursuance of the powers delegated

    to me under the said clause of the agreement 1,

    Ajay Gupta, Chief Engineer (MZ), HP.PWD.

    Mandi, hereby appoint Er. Ashok Kumar

    Chauhan, Engineer-in-Chief (Retd), as an

    Arbitrator, to decide and make his award

    regarding claims / disputes given by the

    Contractor for the subject cited work and also

    regarding the counter claim of the Executive

    Engineer, Sarkaghat Division HP:PWD

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    Sarkaghat if any, followed subsequently, subject

    always, however, to their admissibility under

    .

    Clause-25 of the aforesaid agreement.”

    6. Record demonstrates that the appointment of

    learned arbitrator besides being unilateral by one of the

    parties, was also by an employee of one of the contesting

    of
    parties, that is to say the Chief Engineer (MZ), of the Public

    Works Department between whom and the Claimant a
    rt
    dispute had arisen out of the terms of the contract entered

    into between it and the Claimant. Therefore, obviously, as the

    Chief Engineer (MZ), HPPWD, was an employee of one of the

    parties, in terms of Section 12(5) of the Act, he was ineligible

    to be appointed as an Arbitrator. In this backdrop, if one

    peruses the judgment of Hon’ble Supreme Court of India in

    Perkins Eastman Architects DPC and another vs. HSCC (India)

    Limited, (2020) 20 Supreme Court Cases 760 (supra), one finds

    that after referring to the earlier adjudications made by

    Hon’ble Supreme Court, on the subject, Hon’ble Supreme

    Court was therein pleased to hold as under:-

    “17. In TRF Limited4, the Agreement was en-

    tered into before the provisions of the Amending

    Act (Act No.3 of 2016) came into force. It was sub-

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    mitted by the appellant that by virtue of the provi-

    sions of the Amending Act and insertion of the

    .

    Fifth and Seventh Schedules in the Act, the Man-

    aging Director of the respondent would be a per-

    son having direct interest in the dispute and as

    such could not act as an arbitrator. The extension

    of
    of the submission was that a person who himself

    was disqualified and disentitled could also not
    rt
    nominate any other person to act as an arbitrator.

    The submission countered by the respondent

    therein was as under (SCC p. 385, para 701) –

    “7.1. The submission to the effect that since

    the Managing Director of the respondent has

    become ineligible to act as an arbitrator sub-

    sequent to the amendment in the Act, he

    could also not have nominated any other per-

    son as arbitrator is absolutely unsustain-

    able, for the Fifth and the Seventh Schedules

    fundamentally guide in determining whether

    circumstances exist which give rise to justifi-

    able doubts as to the independence and im-

    partiality of the arbitrator. To elaborate, if

    any person whose relationship with the par-

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    ties or the counsel or the subject-matter of

    dispute falls under any of the categories

    .

    specified in the Seventh Schedule, he is ineli-

    gible to be appointed as an arbitrator but not

    otherwise.”

    18. The issue was discussed and decided by this

    of
    Court as under(TRF case2 SCCpp.403-04, paras

    50-54-
    rt
    “50. First, we shall deal with Clause (d). There

    is no quarrel that by virtue of Section 12(5) of

    the Act, if any person who falls under any of

    the categories specified in the Seventh Sched-

    ule shall be ineligible to be appointed as the

    arbitrator. There is no doubt and cannot be, for

    the language employed in the Seventh Sched-

    ule, the Managing Director of the Corporation

    has become ineligible by operation of law. It is

    the stand of the learned Senior Counsel for the

    appellant that once the Managing Director be-

    comes ineligible, he also becomes ineligible to

    nominate. Refuting the said stand, it is can-

    vassed by the learned Senior Counsel for the

    respondent that the ineligibility cannot extend

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    to a nominee if he is not from the Corporation

    and more so when there is apposite and requi-

    .

    site disclosure. We think it appropriate to

    make it clear that in the case at hand we are

    neither concerned with the disclosure nor ob-

    jectivity nor impartiality nor any such other cir-

    of
    cumstance. We are singularly concerned with

    the issue, whether the Managing Director, af-
    rt
    ter becoming ineligible by operation of law, is

    he still eligible to nominate an arbitrator. At

    the cost of repetition, we may state that when

    there are two parties, one may nominate an

    arbitrator and the other may appoint another.

    That is altogether a different situation. If there

    is a clause requiring the parties to nominate

    their respective arbitrator, their authority to

    nominate cannot be questioned. What really in

    that circumstance can be called in question is

    the procedural compliance and the eligibility of

    their arbitrator depending upon the norms pro-

    vided under the Act and the Schedules ap-

    pended thereto. But, here is a case where the

    Managing Director is the “named sole arbitra-

    tor” and he has also been conferred with the

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    power to nominate one who can be the arbitra-

    tor in his place. Thus, there is subtle distinc-

    .

    tion. In this regard, our attention has been

    drawn to a two-Judge Bench decision in State

    of Orissa v. Commr. Of Land Records and Set-

    tlement7. In the said case, the question arose,

    of
    can the Board of Revenue revise the order

    passed by its delegate. Dwelling upon the said
    rt
    proposition, the Court held: (SCC p. 173, para

    25)

    ’25. We have to note that the Commissioner

    when he exercises power of the Board dele-

    gated to him under Section 33 of the Settle-

    ment Act, 1958, the order passed by him is to

    be treated as an order of the Board of Revenue

    and not as that of the Commissioner in his ca-

    pacity as Commissioner. This position is clear

    from two rulings of this Court to which we

    shall presently refer. The first of the said rul-

    ings is the one decided by the Constitution

    Bench of this Court in Roop Chand vs. State

    of Punjab8. In that case, it was held by the

    majority that where the State Government

    had, under Section 41(1) of the East Punjab

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    Holdings (Consolidation and Prevention of

    Fragmentation) Act, 1948, delegated its appel-

    .

    late powers vested in it under Section 21(4) to

    an “officer”, an order passed by such an offi-

    cer was an order passed by the State Govern-

    ment itself and “not an order passed by any

    of
    officer under this Act” within Section 42 and

    was not revisable by the State Government. It
    rt
    was pointed out that for the purpose of exer-

    cise of powers of revision by the State under

    Section 42 of that Act, the order sought to be

    revised must be an order passed by an officer

    in his own right and not as a delegate of the

    State. The State Government was, therefore,

    not entitled under Section 42 to call for the

    records of the case which was disposed of by

    an officer acting as its delegate.’ (emphasis in

    original)

    51. Be it noted in the said case, reference was

    made to Behari Kunj Sahkari Awas Samiti v.

    State of U.P.9, which followed the decision

    in Roop Chand v. State of Punjab6. It is

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    seemly to note here that the said principle has

    been followed in Indore Vikas Pradhikaran8.

    .

    52. Mr Sundaram has strongly relied on Prat-

    apchand Nopaji11. In the said case, the three-

    Judge Bench applied the maxim “qui facit per

    alium facit per se”. We may profitably repro-

    of
    duce the passage: (SCC p. 214, para 9)

    rt
    “9. … The principle which would apply, if the

    objects are struck by Section 23 of the Con-

    tract Act, is embodied in the maxim: “qui facit

    per alium facit per se” (what one does through

    another is done by oneself). To put it in an-

    other form, that which cannot be done directly

    may not be done indirectly by engaging an-

    other outside the prohibited area to do the ille-

    gal act within the prohibited area. It is immate-

    rial whether, for the doing of such an illegal

    act, the agent employed is given the wider

    powers or authority of the “pucca adatia”, or,

    as the High Court had held, he is clothed with

    the powers of an ordinary commission agent

    only.”

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    53. The aforesaid authorities have been com-

    mended to us to establish the proposition that

    .

    if the nomination of an arbitrator by an ineligi-

    ble arbitrator is allowed, it would tantamount

    to carrying on the proceeding of arbitration by

    himself. According to the learned counsel for

    of
    the appellant, ineligibility strikes at the root of

    his power to arbitrate or get it arbitrated upon
    rt
    by a nominee.

    54. In such a context, the fulcrum of the con-

    troversy would be, can an ineligible arbitrator,

    like the Managing Director, nominate an arbi-

    trator, who may be otherwise eligible and a re-

    spectable person. As stated earlier, we are

    neither concerned with the objectivity nor the

    individual respectability. We are only con-

    cerned with the authority or the power of the

    Managing Director. By our analysis, we are

    obligated to arrive at the conclusion that once

    the arbitrator has become ineligible by opera-

    tion of law, he cannot nominate another as an

    arbitrator. The arbitrator becomes ineligible as

    per prescription contained in Section 12(5) of

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    the Act. It is inconceivable in law that person

    who is statutorily ineligible can nominate a

    .

    person. Needless to say, once the infrastruc-

    ture collapses, the superstructure is bound to

    collapse. One cannot have a building without

    the plinth. Or to put it differently, once the

    of
    identity of the Managing Director as the sole

    arbitrator is lost, the power to nominate some-
    rt
    one else as an arbitrator is obliterated. There-

    fore, the view expressed by the High Court is

    not sustainable and we say so.”

    19. It was thus held that as the Managing Direc-

    tor became ineligible by operation of law to act as

    an arbitrator, he could not nominate another per-

    son to act as an arbitrator and that once the iden-

    tity of the Managing Director as the sole arbitrator

    was lost, the power to nominate someone else as

    an arbitrator was also obliterated. The relevant

    Clause in said case had nominated the Managing

    Director himself to be the sole arbitrator and also

    empowered said Managing Director to nominate

    another person to act as an arbitrator. The Man-

    aging Director thus had two capacities under said

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    Clause, the first as an arbitrator and the second

    as an appointing authority. In the present case

    .

    we are concerned with only one capacity of the

    Chairman and Managing Director and that is as

    an appointing authority.

    20. We thus have two categories of cases. The

    of
    first, similar to the one dealt with in TRF Limited4

    where the Managing Director himself is named as
    rt
    an arbitrator with an additional power to appoint

    any other person as an arbitrator. In the second

    category, the Managing Director is not to act as

    an arbitrator himself but is empowered or autho-

    rised to appoint any other person of his choice or

    discretion as an arbitrator. If, in the first category

    of cases, the Managing Director was found incom-

    petent, it was because of the interest that he

    would be said to be having in the outcome or re-

    sult of the dispute. The element of invalidity

    would thus be directly relatable to and arise from

    the interest that he would be having in such out-

    come or decision. If that be the test, similar inva-

    lidity would always arise and spring even in the

    second category of cases. If the interest that he

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    has in the outcome of the dispute, is taken to be

    the basis for the possibility of bias, it will always

    .

    be present irrespective of whether the matter

    stands under the first or second category of

    cases. We are conscious that if such deduction is

    drawn from the decision of this Court in TRF Lim-

    of
    ited4, all cases having clauses similar to that

    with which we are presently concerned, a party
    rt
    to the agreement would be disentitled to make

    any appointment of an Arbitrator on its own and

    it would always be available to argue that a

    party or an official or an authority having interest

    in the dispute would be disentitled to make ap-

    pointment of an Arbitrator.

    21. But, in our view that has to be the logical de-

    duction from TRF Limited4. Paragraph 50 of the

    decision shows that this Court was concerned

    with the issue, “whether the Managing Director,

    after becoming ineligible by operation of law, is

    he still eligible to nominate an Arbitrator” The in-

    eligibility referred to therein, was as a result of

    operation of law, in that a person having an inter-

    est in the dispute or in the outcome or decision

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    thereof, must not only be ineligible to act as an

    arbitrator but must also not be eligible to appoint

    .

    anyone else as an arbitrator and that such per-

    son cannot and should not have any role in chart-

    ing out any course to the dispute resolution by

    having the power to appoint an arbitrator. The

    of
    next sentences in the paragraph, further show

    that cases where both the parties could nominate
    rt
    respective arbitrators of their choice were found to

    be completely a different situation. The reason is

    clear that whatever advantage a party may de-

    rive by nominating an arbitrator of its choice

    would get counter balanced by equal power with

    the other party. But, in a case where only one

    party has a right to appoint a sole arbitrator, its

    choice will always have an element of exclusivity

    in determining or charting the course for dispute

    resolution. Naturally, the person who has an in-

    terest in the outcome or decision of the dispute

    must not have the power to appoint a sole arbitra-

    tor. That has to be taken as the essence of the

    amendments brought in by the Arbitration and

    Conciliation (Amendment) Act, 2015 (Act 3 of

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    2016) and recognised by the decision of this

    Court in TRF Ltd.2″

    .

    7. It is evident from the said judgment of Hon’ble

    Supreme Court that the person, who is interested in the

    outcome of decision of the dispute, must not have the power

    of
    to appoint the Sole Arbitrator. Hon’ble Supreme Court has

    also held that where a person has become ineligible by
    rt
    operation of law to act as an Arbitrator, he could not

    nominate another person to act as an Arbitrator and that

    once the identity of said person as the Sole Arbitrator is lost,

    the power to nominate some else as an Arbitrator was also

    obliterated. Hon’ble Supreme Court in para 20 of the

    judgment has further observed that there can be two kind of

    situations, i.e. one where the officer himself is named as an

    arbitrator with an additional power to appoint any other

    person as an Arbitrator and the second category where the

    officer is not to act as an Arbitrator himself but is empowered

    or authorized to appoint any other person of his choice or

    discretion as an Arbitrator. By referring to its earlier judgment

    in TRF Ltd. Vs. Energo Engg. Projects Ltd. (2017) 8 SCC 377,

    Hon’ble Supreme Court further held that if in the first

    category of cases, the officer was found incompetent, it was

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    because of the interest that he would be said to be having in

    the outcome or result of the dispute, the element of validity

    .

    would thus be directly relatable to and arise from the interest

    that he would be having in such outcome or decision and if

    that be the test, similar invalidity would always arise and

    spring even in the second category of cases. Hon’ble Supreme

    of
    Court further held that if the interest that he has in the

    outcome of the dispute, is taken to be the basis for the
    rt
    possibility of bias, it will always be present irrespective of

    whether the matter stands under the first or second category

    of cases.

    8. Therefore, it is evident from the said judgment of

    Hon’ble Court that wherein an officer himself is ineligible to

    act as an arbitrator, then any Arbitrator appointed by such an

    ineligible officer, will be an invalid appointment. Therefore, in

    the light of said judgment of the Hon’ble Supreme Court, this

    Court has no hesitation in holding that as the Chief

    Secretary (MZ), HPPWD, Mandi, was ineligible to be

    appointed as an Arbitrator being the employee of one of the

    contesting parties and having a direct interest in the outcome

    of the litigation, he was ineligible to appoint Er. Ashok Kumar

    Chauhan as an Arbitrator in the matter. Therefore, the

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    appointment of Er.Ashok Kumar Chauhan as a Sole

    Arbitrator by the Chief Engineer (MZ) HPPWD was bad in law.

    .

    On this count, the award passed by said learned Arbitrator

    being in conflict with Public Policy of India as also law

    declared by Hon’ble Supreme Court of India in Perkins

    Eastman (supra) is obviously bad in law and is held as such.

    of

    9. As far as the issue raised by learned Deputy

    Advocate General of waiver and the compliance of the proviso
    rt
    to Section 12(5) of the Act is concerned, this Court is of the

    considered view that this proviso does not come to the rescue

    of the State in the facts of this case.

    10. The proviso to Section 12(5) of the Act provides

    that the parties may, subsequent to disputes having arisen

    between them, waive the applicability of sub-section (5) of

    Section 12 “by an express agreement in writing”. Therefore,

    the condition precedent for this proviso to come into force is

    that subsequent to the dispute having been arisen, there has

    to be a waiver of the applicability of proviso to Section 12(5) of

    the Act and this waiver has to be by way of an express

    agreement in writing.

    11. A perusal of the record of the arbitration

    proceedings demonstrates that there is no express agreement

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    in writing on record entered into between the parties and

    executed after the dispute has arisen, to the effect that they

    .

    are waiving off the applicability of Section 12(5) of the Act.

    12. Reliance upon the order passed by the learned

    Arbitrator dated 22.04.2021 by the learned Deputy Advocate

    General is not a substitute to the statutory requirement of the

    of
    proviso to Section 12(5) of the Act.

    13. Inrt the absence of there being an express

    agreement in writing, mentioning therein the waiver on the

    part of the parties to the applicability of Section 12(5) of the

    Act in the proceedings, what is contained in the order passed

    by learned Arbitrator dated 22.04.2021 is of no consequence.

    14. In fact, this issue is no more res integra. Hon’ble

    Supreme Court in Bharat Broadband Network Limited vs.

    United Telecoms Limited (2019) 5 Supreme Court Cases

    755, has been pleased to hold with regard to the applicability

    of Section 12(5) of the Act that unlike Section 4 of the

    Arbitration and Conciliation Act, which deals with deemed

    waiver of the right to object by conduct, the proviso to Section

    12(5) of the Act will only apply if subsequent to disputes

    having arisen between the parties, the parties waive the

    applicability of sub-section 5 of Section 12 by an express

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    23
    2026:HHC:28759

    agreement in writing. Hon’ble Supreme Court has held that

    Section 12(5) of the Act refers to an express agreement in

    .

    writing and the expression ‘express agreement in writing’

    refers to an agreement made in words as opposed to an

    agreement which is to be inferred by conduct. Hon’ble

    Supreme Court has also held that it is thus necessary that

    of
    there has to be an express agreement in writing and this

    agreement must be an agreement by which both parties with
    rt
    full knowledge of the fact that the learned Arbitrator is

    ineligible to be appointed as an arbitrator still go ahead and

    say that they have full faith and confidence in the arbitrator

    to continue as such.

    15. Thereafter, recently, Hon’ble Supreme Court of

    India in Bhadra International (India) Pvt. Ltd. And others

    vs. Airports Authority of India, 2026 SCC Online SC 7, has

    again been pleased to reiterate that ineligibility of an

    arbitrator can be waived off only by way of an express

    agreement in writing and conduct of the parties is

    inconsequential and does not constitute a valid waiver under

    the proviso.

    16. Therefore, in the light of above discussion, as

    obviously, the so called waiver to the appointment on the part

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    24
    2026:HHC:28759

    of the parties to the appointment of the Arbitrator cannot save

    the said invalid appointment of the Arbitrator, both these

    .

    petitions are disposed of by setting aside the award dated

    24.09.2022, passed by the learned Arbitrator on the ground

    that the said award is against the Public Policy of India as

    well as in contravention to the law declared by Hon’ble

    of
    Supreme Court of India in judgments referred to herein above

    as the appointment of the learned Arbitrator was bad in law.

    rt
    The parties are at liberty to have recourse qua the redressal of

    their grievance in accordance with law. Pending

    miscellaneous application(s), if any, also stand disposed of

    accordingly.

    
                                              (Ajay Mohan Goel)
    
    
    
    
        July 13, 2026                              Judge
           (narender)
    
    
    
    
    
    
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