Ineligibility under Section 12(5) cannot be waived by conduct or participation without express written agreement.

The Petitioner, a registered Class-II Contractor, was awarded a work order by the Respondents on January 16, 2019, for upgrading residential flats in New Delhi

Delays occurred due to COVID-19 lockdowns, NGT construction bans, and the Kisan Andolan

Disputes arose regarding unpaid bills and the Respondents' decision to float a new tender for the same work

The Petitioner invoked arbitration under Clause 25 of the contract

The Respondents initially appointed an arbitrator who later withdrew; subsequently, following a Section 9 petition, the Respondents unilaterally appointed Mr. Akhilesh Kumar (a former employee) as the Sole Arbitrator

The Petitioner challenged this appointment under Section 11(6), arguing that a unilateral appointment of a former employee is legally invalid

1. Whether the unilateral appointment of a sole arbitrator by one party is legally valid under the Arbitration and Conciliation Act, 1996

2. Whether the Petitioner’s participation in initial proceedings before the unilaterally appointed arbitrator constitutes a waiver of the right to object under Section 12(5)

The Court applied Section 11(6) and Section 12(5) of the Arbitration and Conciliation Act, 1996, read with the Seventh Schedule, which renders certain categories of persons ineligible to act as arbitrators

It relied on the seminal principles established in TRF Limited v. Energo Engineering Projects Ltd. and Perkins Eastman Architects DPC v. HSCC (India) Ltd., which prohibit unilateral appointments by a party interested in the outcome

The court applied the "express waiver" requirement from Bhadra International (India) Pvt. Ltd. v. Airports Authority of India (2026) and Bharat Broadband Network Limited v. United Telecoms Limited, which mandates that any waiver of an arbitrator’s ineligibility must be through an express written agreement after the dispute has arisen, rather than by conduct

The Court observed that Clause 25 of the contract granted the Respondents unilateral power to appoint the arbitrator, a mechanism previously declared invalid by the Supreme Court to ensure neutrality

The Respondent’s appointee was a former employee, triggering ineligibility under the Seventh Schedule

The Court rejected the Respondents' argument that the Petitioner had accepted the appointment through participation or correspondence

Citing Bhadra International, the Court reasoned that "express agreement in writing" under the proviso to Section 12(5) cannot be inferred from conduct, procedural participation, or filing of claims

Since no such written waiver existed, the appointment was void ab initio, and the Court was duty-bound to appoint an independent arbitrator

The Court allowed the petition and appointed Mr. Davinder Singh, Senior Advocate, as the independent Sole Arbitrator to adjudicate the disputes. The Respondents were granted liberty to raise preliminary objections regarding jurisdiction or arbitrability before the newly appointed tribunal