DEBANGSU BASAK,J. - (1.) The Court: The present application is under Section 11(6) read with Sections 12, 14 and 15 of the Arbitration and Conciliation Act, 1996.
(2.) Learned advocate for the petitioner submits that, the parties were referred to arbitration where the learned Arbitrator is a retired employee of the respondent. On the petitioner coming to know of the judgment of the Supreme Court reported at 2019 SCC Online SC 1517 (Perkins Eastman Architects DPC and Anr. vs HSCC (India) Ltd.) the petitioner applied before the learned Arbitrator questioning his appointment. Such application was rejected by an order of the learned Arbitrator on February 29, 2020. Thereafter, the petitioner approached this Court under Sections 11(6), 12, 14 and 15 of the Act of 1996.
(3.) Learned advocate appearing for the petitioner relies upon (2019) 5 SCC 755 (Bharat Broadband Network Limited vs. United Telecoms Limited) and submits that, since the learned Arbitrator is a retired employee of the respondent, and since the arbitration agreement allows the General Manager of the respondent to appoint the Arbitrator, the same is hit by Section 12(5) of the Act of 1996. The petitioner did not waive the objection to the appointment by an expressed agreement in writing subsequent to the disputes having arisen between the parties in terms of the proviso to Section 12(5) of the Act of 1996. Therefore, the learned Arbitrator is de jure incapable of proceeding with the arbitration. He submits that, therefore an arbitrator be appointed to arbitrate the dispute between the parties.;