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2017 (11) TMI 1814 - HC - Indian LawsAppointment of an Arbitrator - Whether a party, who appoints an arbitrator knowing fully well that such arbitrator is suffering from a disability that falls under any of the categories specified in the Seventh Schedule of the Act and shall be ineligible to be appointed as an arbitrator, can later challenge his appointment on the ground that he was ineligible to be appointed as an arbitrator under Section 12(5) of the Act? HELD THAT:- The petitioner, knowing fully well that the arbitrator suffered from an ineligibility in terms of Section 12(5) of the Act proceeded to nominate him as a Sole Arbitrator after the disputes had arisen between the parties and the Respondent concurred in such appointment and even proceeded to file its Statement of Claim before the Arbitrator. Though it was contended that the appointment was made before the decision in TRF LTD. VERSUS ENERGO ENGINEERING PROJECTS LTD. [2017 (7) TMI 1288 - SUPREME COURT] , this would not help the petitioner inasmuch as TRF Ltd. only applied Section 12(5) of the Act to the facts of the case therein. The appointment was accepted by the respondent who even proceeded to file the Statement of Claim before such arbitrator, without objections to his appointment or jurisdiction. Therefore, the disputes having arisen between the parties, both parties waived the applicability of Section 12(5) of the Act. The appointment being in writing and the filing of the Statement of Claim without any reservation also being in writing, in my opinion, in the facts of the case, the same would amount to an express agreement in writing as required under proviso to Section 12(5) of the Act. Petition dismissed.
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