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2014 (6) TMI 99 - HC - Indian LawsValidity of Exparte arbitration award - consent for appointment of arbitral tribunal - Unilateral appointment of Arbitrator cum Advocate by one party - Dual capacity of Arbitrator and Advocate of one party - Failure to perform the terms and conditions of MOU - Petitioner remained absent from proceedings therefore, ex parte order passed - Held that:- The requirement of consent, in no way, permits any one party to appoint Arbitrator unilaterally. It is contrary to the terms and the law. Apart from this clause, it is necessary for both the parties to appoint and/or nominate and/or select sole Arbitrator by consent. The appointment of the Arbitral Tribunal without consent itself was contrary to the agreed terms of the contract. The Arbitrator who was Advocate of the Respondents, acted also as the Advocate and also as the Arbitrator. It is just impermissible. Such dual capacity of Advocate and/or even of the Arbitrator is against the basic provisions of the Arbitration Act and/or the arbitration scheme itself. The Advocate by consent can act as Arbitrator, but cannot act in such dual capacity for only one party. Petitioner would have participated in the arbitration proceedings and resisted the claim in all respects. The Arbitrator would have passed the appropriate order. But in this case, the Petitioners having made their position clear in writing and had resisted every steps taken by the Respondents including the steps taken by the Arbitrator, who was no one else, but the Advocate of the Respondents and, therefore, the nonparticipation, in no way, can be treated as deliberate action to avoid the settlement of disputes through the arbitration proceedings. I am inclined to observe that both the proceedings so initiated and concluded is illegal, contrary and perverse. The Award so passed is unsustainable and liable to be quashed and set aside on all counts. - Decided in favour of appellant.
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