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Judgment
245 paragraphs · 5,077 wordsJustice Sandeep Sharma, J.
1.By way of instant application filed under Sections 14 and 15 of the Arbitration & Conciliation Act, as amended upto date, prayer has been made on
behalf of the petitioner for termination of the mandate of arbitrator and for appointment of substitute arbitrator.
For having a bird’s eye view, facts as emerge from the record are that the petitioner was awarded work of construction of Ghatta-Sihan Road
Km. 0/0 to 1/900 (ii) C/o Chunahan Malhnoo Road Km. 0/0 to 4/500 under PMGSY for the year 2003-04 Package No. HP-08-08, Agreement No. 2
of 2004-05. Since certain disputes arose between the parties, matter came to be referred to the arbitration of Superintending Engineer Arbitration
Circle, HPPWD Solan, vide order dated 13.3.2014. However, aforesaid Superintending Engineer vide communication dated 18.11.2016, requested for
appointment of another arbitrator since dispute pertained to the works executed during his incumbency as Executive Engineer, Mandi. Consequently,
Chief Engineer, Mandi Zone, vide communication dated 2.12.2016 substituted Superintending Engineer 6th Circle, HPPWD Solan with Superintending
Engineer, Arbitration Circle Kullu. A corrigendum came to be issued on 7.12.2016 since name of petitioner was wrongly recorded as Balak Ram
(annexure P-2). Petitioner submitted letter dated 24.1.2017, raising dispute with regard to appointment of Superintending Engineer 6th Circle, Kullu as
sole arbitrator claiming that he could not be appointed as such, in terms of Section 12 of the Act. He claimed that the person appointed as Sole
Arbitrator is under direct employment of the Department as such, he is precluded from being appointed as an arbitrator in terms of amended
provisions of the Act ibid. Since respondent failed to take action, if any, pursuant to aforesaid request made by petitioner, petitioner approached this
Court in the instant proceedings.
Mr. Suneet Goel, learned counsel representing the petitioner, while inviting attention of this Court to Section 12 of the Arbitration & Conciliation
Act, contended that a person having either direct or indirect relationship or interest in any of the parties or in relation to subject matter of dispute, can
not be appointed as an arbitrator, as such, appointment of Superintending Engineer 6th Circle, Kullu, as sole arbitrator is not sustainable and an
independent arbitrator is required to be appointed. He further contended that Superintending Engineer, 6th Circle, is under direct employment of
respondent-Department and as such, his appointment is in violation of the conditions enumerated in 7th Schedule of Arbitration & Conciliation Act as
amended upto date. He further contended that apart from above, learned arbitrator has not made any disclosure as required under amended provisions
of Arbitration & Conciliation Act disclosing the circumstances, which may lead to justifiable doubts as to the impartiality and neutrality of the
arbitrator.
Respondent-State, by way of reply has opposed aforesaid prayer having been made by the petitioner. Mr. Vikrant Chandel, learned Deputy
Advocate General, while disputing aforesaid contention raised in the petition by the petitioner, contended that the petitioner is estopped from
challenging the appointment of the arbitrator at this belated stage because petitioner has participated in the proceedings and has waived off his right in
view of Section 4 of the Arbitration & Conciliation Act. He further contended that as per clause 25 of the contract agreement, petitioner could not
raise objection, if any, to the appointment of a government servant as an arbitrator, as such, objection raised by the petitioner by way of petition is
devoid of merit and deserves outright rejection. He further contended that the Superintending Engineer, HPPWD Arbitration Circle Solan expressed
his inability to adjudicate the dispute on the ground that the works, which are subject matter of dispute, were executed during his incumbency as
Executive Engineer, Mandi, respondent-Department appointed Superintending Engineer 6th Circle Kullu as sole arbitrator vide communication dated
2.12.2016. He further contended that the record clearly suggests that even new incumbent after having entered into reference fixed two dates but
even at that time, petitioner though filed reply to the claim of respondent, but never raised any objection with regard to his appointment as sole
arbitrator. Lastly, Mr. Chandel contended that otherwise also, Section 12 as amended by Act No. 3 of 2016 is not applicable in the present
proceedings, because appointment in terms of dispute raised by petitioner came to be made prior to amendment in Section 12 of the Act ibid. Mr.
Chandel, further contended that challenge if any to the appointment of the arbitrator could be laid within 15 days of his appointment as provided under
Sub-section (3) of Section 13, but in the case at hand, such request came to be made after expiry of period referred herein above.
I have heard the learned counsel for the parties and gone through the record carefully.
Admittedly, in the case at hand, new arbitrator i.e. Superintending Engineer 6th Circle, HPPWD, Kullu came to be appointed on 2.12.2016, vide
annexure R-5. It is also not in dispute that arbitrator so appointed entered into reference on 26.12.2016. Though the petitioner attended first hearing
held on 21.9.2017, but on that he never chose to file application, laying therein challenge, if any, to the appointment of arbitrator. Bare perusal of
Section 13 of the Arbitration & Conciliation Act suggests that a party intending to lay challenge, if any, to the appointment of arbitrator is required to
move a written statement of reasons, if any, within a period of 15 days after becoming aware of constitution of arbitral tribunal or becoming aware of
any circumstance as provided under Sub-section (3) of Section 13. In the case at hand, admittedly petitioner sent communication to the arbitrator i.e.
Superintending Engineer 6th Circle HPPWD on 24.1.2017, annexure R-15, raising question with regard to impartiality and independence of the
arbitrator so appointed by Chief Engineer, (MZ), HPPWD, substituting Superintending Engineer, Arbitration Circle, Solan.
No doubt, in the case at hand, application in terms of Section 13 (2) came to be filed on 24.1.2017 i.e. after one and a half months, whereas as per
Section 13 (2) such application could be made within a period of 15 days after becoming aware of constitution of arbitral tribunal or becoming aware
of any circumstances as referred in Sub-section (3) of section 12. Sub-section (3) of Section 12 provides that appointment of arbitrator can be
challenged only if circumstances exist that give rise to justifiable doubts as to his independence or impartiality or he/she does not possess qualifications
agreed to by the parties. Perusal of communication dated 24.1.2017 filed in terms of Section 13(2) of the Act ibid, suggests that the petitioner objected
to appointment of Superintending Engineer 6th Circle as an arbitrator on the ground that in the arbitral proceedings, respondent-State is being
represented by Executive Engineer, Mandi, who is an authorized authority of the Government. Petitioner further contended that arbitrator i.e.
Superintending Engineer 6 th Circle, Kullu, at present is working employee of State as such, his relationship is directly established with the respondent,
which is in violation of Sr. No. 1 of 7th Schedule of amended Act of 2015. Petitioner also contended before the arbitrator in the application referred to
herein above that in terms of Section 11(1) of Arbitration & Conciliation Act both the parties should agree to the person to be appointed as an
arbitrator but no such consent was ever taken from the petitioner and order has been passed unilaterally by the respondents.
True it is that there appears to be delay on the part of petitioner in moving application laying challenge to the appointment of the arbitrator but as has
been noticed above that the application laying challenge to the appointment of the arbitrator could also be filed within a period of fifteen days from the
discovery of the fact that arbitrator is not eligible to be appointed as an arbitrator in terms of the conditions contained in Sub-section (3) of Section 12.
In the case at hand, petitioner appeared on 21.1.2017 before the Superintending Engineer, 6th Circle, HPPWD, Kullu, after his appointment as an
arbitrator, whereafter on 24.1.2017, application in question came to be filed.
Leaving everything aside, bare perusal of Section 12 (3) of the amended Act, which came to be amended by Act No. 3 of 2016 clearly suggests
that a person having either direct or indirect relationship with the parties or in relation to subject matter in dispute can not be appointed as an arbitrator.
In the case at hand, Mr. Vikrant Chandel, learned Deputy Advocate General has not been able to dispute that the Superintending Engineer, Kullu, who
subsequently came to be appointed as an arbitrator has no direct or indirect relationship or interest with any of the parties or in relation to subject
matter of dispute, rather, petitioner has categorically stated in his application that Superintending Engineer 6th Circle is working employee of State as
such, he has direct relation with the respondent-State, which is one of the parties to the dispute.
At this stage, it would be profitable to take note of Section 12 of the Act.
“12. Grounds for challenge.â€" (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in
writing any circumstances ,-
a) Such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject
matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or
impartiality; and b) Which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire
arbitration within a period of twelve months.
Explanation 1. â€"The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts
as to the independence or impartiality of an arbitrator.
Explanation 2. â€" the disclosure shall be made by such person in the form specified in the Sixth Schedule.]
(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any
circumstances referred to in sub-section (1) unless they have already been informed of them by him.
(3) An arbitrator may be challenged only ifâ€
(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
(b) he does not possess the qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware
after the appointment has been made.
[(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the
dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties
may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.]â€
Bare perusal of aforesaid amended provision of Act clearly suggests that a person having direct/indirect control over the day to day affairs of the
authority, cannot be appointed as an Arbitrator.
Hon’ble Apex Court in Volestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd ., (2017) 4 SCC 665, has held as under:-
“14. From the stand taken by the respective parties and noted above, it becomes clear that the moot question is as to whether panel of arbitrators
prepared by the Respondent violates the amended provisions of Section 12 of the Act. Subsection (1) and Sub-section (5) of Section 12 as well as
Seventh Schedule to the Act which are relevant for our purposes, may be reproduced below:
(i) for sub-section (1), the following Sub-section shall be substituted, namely (1) When a person is approached in connection with his possible
appointment as an arbitrator, he shall disclose in writing any circumstancesâ€
(a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-
matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or
impartiality; and
(b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a
period of twelve months.
Explanation 1.--The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as
to the independence or impartiality of an arbitrator.
Explanation 2.--The disclosure shall be made by such person in the form specified in the Sixth Schedule.;
(ii) after Sub-section (4), the following Subsection shall be inserted, namelyâ€
(5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the
dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties
may, subsequent to disputes having arisen between them, waive the applicability of this Sub-section by an express agreement in writing. (emphasis
supplied)
THE SEVENTH SCHEDULE
Arbitrator's relationship with the parties or counsel
The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.
The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties.
The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties.
The arbitrator is a lawyer in the same law firm which is representing one of the parties.
The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the
affiliate is directly involved in the matters in dispute in the arbitration.
The arbitrator's law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself.
The arbitrator's law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties.
The arbitrator regularly advises the appointing party or an affiliate of the appointing party even though neither the arbitrator nor his or her firm
derives a significant financial income therefrom.
The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and
controlling the company.
A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties.
The arbitrator is a legal representative of an entity that is a party in the arbitration.
The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.
The arbitrator has a significant financial interest in one of the parties or the outcome of the case.
The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant
financial income therefrom. Relationship of the arbitrator to the dispute
The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties.
The arbitrator has previous involvement in the case. Arbitrator's direct or indirect interest in the dispute.
The arbitrator holds shares, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held.
A close family member of the arbitrator has a significant financial interest in the outcome of the dispute.
The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the
unsuccessful party in the dispute.
Explanation 1.---The term ""close family member"" refers to a spouse, sibling, child, parent or life partner.
Explanation 2.--The term ""affiliate"" encompasses all companies in one group of companies including the parent company.
Explanation 3.--For the removal of doubts, it is clarified that it may be the practice in certain specific kinds of arbitration, such as maritime or
commodities arbitration, to draw arbitrators from a small, specialized pool. If in such fields it is the custom and practice for parties frequently to
appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the Rules set out above. (emphasis
supplied)
It is a well known fact that the Arbitration and Conciliation Act, 1996 was enacted to consolidate and amend the law relating to domestic
arbitration, inter alia, commercial arbitration and enforcement of foreign arbitral awards etc. It is also an accepted position that while enacting the said
Act, basic structure of UNCITRAL Model Law was kept in mind. This became necessary in the wake of globalization and the adoption of policy of
liberalisation of Indian economy by the Government of India in the early 90s. This model law of UNCITRAL provides the framework in order to
achieve, to the maximum possible extent, uniform approach to the international commercial arbitration. Aim is to achieve convergence in arbitration
law and avoid conflicting or varying provisions in the arbitration Acts enacted by various countries. Due to certain reasons, working of this Act
witnessed some unpleasant developments and need was felt to smoothen out the rough edges encountered thereby. The Law Commission examined
various shortcomings in the working of this Act and in its first Report, i.e., 176th Report made various suggestions for amending certain provisions of
the Act. This exercise was again done by the Law Commission of India in its Report No. 246 in August, 2004 suggesting sweeping amendments
touching upon various facets and acting upon most of these recommendations, Arbitration Amendment Act of 2015 was passed which came into
effect from October 23, 2015.
Apart from other amendments, Section 12 was also amended and the amended provision has already been reproduced above. This amendment is
also based on the recommendation of the Law Commission which specifically dealt with the issue of 'neutrality of arbitrators' and a discussion in this
behalf is contained in paras 53 to 60 and we would like to reproduce the entire discussion hereinbelow:
NEUTRALITY of ARBITRATORS
It is universally accepted that any quasi-judicial process, including the arbitration process, must be in accordance with principles of natural justice.
In the context of arbitration, neutrality of arbitrators, viz. their independence and impartiality, is critical to the entire process. 54. In the Act, the test for
neutrality is set out in Section 12(3) which provides12(3) An arbitrator may be challenged only ifâ€
(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality...
The Act does not lay down any other conditions to identify the ""circumstances"" which give rise to ""justifiable doubts"", and it is clear that there can
be many such circumstances and situations. The test is not whether, given the circumstances, there is any actual bias for that is setting the bar too
high; but, whether the circumstances in question give rise to any justifiable apprehensions of bias.
The limits of this provision has been tested in the Indian Supreme Court in the context of contracts with State entities naming particular
persons/designations (associated with that entity) as a potential arbitrator. It appears to be settled by a series of decisions of the Supreme Court (See
Executive Engineer, Irrigation Division, Puri v. Gangaram Chhapolia MANU/SC/0001/1983 : 1984 (3) SCC 627; Secretary to Government Transport
Department, Madras v. Munusamy Mudaliar MANU/SC/0435/1988 : 1988 (Supp) SCC 651; International Authority of India v. K.D. Bali and Anr.
MANU/SC/0197/1988 : 1988 (2) SCC 360; S. Rajan v. State of Kerala MANU/SC/0371/1992 : 1992 (3) SCC 608; Indian Drugs & Pharmaceuticals
v. IndoSwiss Synthetics Germ Manufacturing Co. Ltd. MANU/SC/0139/1996 : 1996 (1) SCC 54; Union of India v. M.P. Gupta (2004) 10 SCC 504;
Ace Pipeline Contract Pvt. Ltd. v. Bharat Petroleum Corporation Ltd. MANU/SC/7273/2007 : 2007 (5) SCC 304) that arbitration agreements in
government contracts which provide for arbitration by a serving employee of the department, are valid and enforceable. While the Supreme Court, in
Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd. MANU/SC/1502/2009 : 2009 8 SCC 520 carved out a minor exception in situations when the
arbitrator ""was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an
inferior rank in some other department) to the officer whose decision is the subject matter of the dispute"", and this exception was used by the Supreme
Court in Denel Proprietary Ltd. v. Govt. of India, Ministry of Defence MANU/SC/0010/2012 : AIR 2012 SC 817 and Bipromasz Bipron Trading SA
v. Bharat Electronics Ltd. MANU/SC/0478/2012 : (2012) 6 SCC 384, to appoint an independent arbitrator Under Section 11, this is not enough.
The balance between procedural fairness and binding nature of these contracts, appears to have been tilted in favour of the latter by the Supreme
Court, and the Commission believes the present position of law is far from satisfactory. Since the principles of impartiality and independence cannot be
discarded at any stage of the proceedings, specifically at the stage of constitution of the arbitral tribunal, it would be incongruous to say that party
autonomy can be exercised in complete disregard of these principles-even if the same has been agreed prior to the disputes having arisen between the
parties. There are certain minimum levels of independence and impartiality that should be required of the arbitral process regardless of the parties'
apparent agreement. A sensible law cannot, for instance, permit appointment of an arbitrator who is himself a party to the dispute, or who is employed
by (or similarly dependent on) one party, even if this is what the parties agreed. The Commission hastens to add that Mr. PK Malhotra, the ex officio
member of the Law Commission suggested having an exception for the State, and allow State parties to appoint employee arbitrators. The
Commission is of the opinion that, on this issue, there cannot be any distinction between State and non State parties. The concept of party autonomy
cannot be stretched to a point where it negates the very basis of having impartial and independent adjudicators for resolution of disputes. In fact, when
the party appointing an adjudicator is the State, the duty to appoint an impartial and independent adjudicator is that much more onerous-and the right to
natural justice cannot be said to have been waived only on the basis of a ""prior"" agreement between the parties at the time of the contract and before
arising of the disputes.
Large scale amendments have been suggested to address this fundamental issue of neutrality of arbitrators, which the Commission believes is
critical to the functioning of the arbitration process in India. In particular, amendments have been proposed to Sections 11, 12 and 14 of the Act.
The Commission has proposed the requirement of having specific disclosures by the arbitrator, at the stage of his possible appointment, regarding
existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts. The Commission has proposed the incorporation of
the Fourth Schedule, which has drawn from the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration, and
which would be treated as a ""guide"" to determine whether circumstances exist which give rise to such justifiable doubts. On the other hand, in terms
of the proposed Section 12(5) of the Act and the Fifth Schedule which incorporates the categories from the Red list of the IBA Guidelines (as above),
the person proposed to be appointed as an arbitrator shall be ineligible to be so appointed, notwithstanding any prior agreement to the contrary. In the
event such an ineligible person is purported to be appointed as an arbitrator, he shall be de jure deemed to be unable to perform his functions, in terms
of the proposed explanation to Section 14. Therefore, while the disclosure is required with respect to a broader list of categories (as set out in the
Fourth Schedule, and as based on the Red and Orange lists of the IBA Guidelines), the ineligibility to be appointed as an arbitrator (and the consequent
de jure inability to so act) follows from a smaller and more serious sub-set of situations (as set out in the Fifth Schedule, and as based on the Red list
of the IBA Guidelines).
The Commission, however, feels that real and genuine party autonomy must be respected, and, in certain situations, parties should be allowed to
waive even the categories of ineligibility as set in the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations
where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objective ""justifiable doubts"" regarding his
independence and impartiality. To deal with such situations, the Commission has proposed the proviso to Section 12(5), where parties may, subsequent
to disputes having arisen between them, waive the applicability of the proposed Section 12(5) by an express agreement in writing. In all/all other cases,
the general Rule in the proposed Section 12(5) must be followed. In the event the High Court is approached in connection with appointment of an
arbitrator, the Commission has proposed seeking the disclosure in terms of Section 12(1) and in which context the High Court or the designate is to
have ""due regard"" to the contents of such disclosure in appointing the arbitrator. (emphasis supplied)
We may put a note of clarification here. Though, the Law Commission discussed the aforesaid aspect under the heading ""Neutrality of
Arbitrators"", the focus of discussion was on impartiality and independence of the arbitrators which has relation to or bias towards one of the parties. In
the field of international arbitration, neutrality is generally related to the nationality of the arbitrator. In international sphere, the 'appearance of
neutrality' is considered equally important, which means that an arbitrator is neutral if his nationality is different from that of the parties. However, that
is not the aspect which is being considered and the term 'neutrality' used is relatable to impartiality and independence of the arbitrators, without any
bias towards any of the parties. In fact, the term 'neutrality of arbitrators' is commonly used in this context as well.
Keeping in mind the afore-quoted recommendation of the Law Commission, with which spirit, Section 12 has been amended by the Amendment
Act, 2015, it is manifest that the main purpose for amending the provision was to provide for neutrality of arbitrators. In order to achieve this, Sub-
section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel
or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an
arbitrator. In such an eventuality, i.e., when the arbitration Clause finds foul with the amended provisions extracted above, the appointment of an
arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator(s) as may be permissible. That would be
the effect of non-obstante Clause contained in Sub-section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms
of arbitration agreement.â€
It is quite apparent from the reading of aforesaid judgment rendered by Hon'ble Apex Court that main purpose for amending the provision is to
provide for neutrality of the arbitrators. Hon'ble Apex Court has categorically held that in order to achieve neutrality as referred above, Sub-section
(3) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person having relation with the parties or with the subject
matter of dispute falling in any of the categories specified in Schedule, shall be ineligible to be appointed as arbitrator. In view of the aforesaid specific
finding returned by Hon'ble Apex Court, submission having been made by the learned Deputy Advocate General that the petitioner himself had agreed
at the time of the execution of agreement that he shall not raise any objection for appointment of government servant as an arbitrator, has no merit and
deserves outright rejection.
Another contention put forth by Mr. Vikrant Chandel, learned Deputy Advocate General that amended Section 12 is not applicable in the present
case, since the arbitrator i.e. Superintending Engineer, 6th Circle, Kullu was appointed prior to the amendment in Section 12 i.e. 23.4.2015, is also
devoid of merit and deserves outright rejection because admittedly Superintending Engineer, 6th Circle, HPPWD Kullu came to be appointed as sole
arbitrator in place of Superintending Engineer, Arbitration Circle, HPPWD Solan on 2.12.2016 i.e. after amendment in Section 12 of the Act ibid.
Consequently, in view of detailed discussion made herein above, as well as law laid down by Hon'ble Apex Court, present petition is allowed. Mr.
Rajesh Mandhotra, Advocate, HP High Court, is appointed as an arbitrator to adjudicate upon the dispute inter se parties. His consent/declaration
under Section 11 (8) of the Act ibid has been obtained and is placed on record. Mr. Mandhotra has no objection to his appointment as an arbitrator in
the present matter. He is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. It shall be
open for the learned arbitrator to determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing
of time limit for filing pleadings or passing of award stands prescribed under Sections 23 and 29A of the Act.
Needless to say, award shall be made strictly as per provisions contained in Arbitration & Conciliation Act. A copy of this order shall be made
available to the learned arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the
arbitration proceedings within stipulated period.
The petition is disposed of.