Case Law Details
Abhay Trading Pvt. Ltd Vs National Aluminium Company Ltd (Orissa High Court)
1. The challenge in the present petition is to continuance of the Arbitrator presently seized of adjudicating the dispute between the parties in view of declaration made by such Arbitrator on 9th September, 2021 that his younger brother was at that point in time employed in the Opposite Party as an Executive Director-(ED) (Project and Technical).
2. Admittedly, the Petitioner participated in the proceedings thereafter and as it transpired,_ the said ED superannuated on 30th April, 2022. During the hearing before the learned Arbitrator on 31st March 2022, an objection was raised to his continuation as an Arbitrator in view of the above declaration.
3. The Arbitrator noted in the minutes of the order passed on that date that neither of the parties had raised an objection regarding his appointment and further that his brother was due to retire from service of NALCO in April, 2022.
4. Learned counsel for the Petitioner contends that in terms of proviso to Section 12 (5) of Arbitration and Conciliation Act, 1996 (Act), there could not be a waiver of the applicability of Section 12 (5) of the Act unless it was by an express agreement in writing. According to him, inasmuch as there is no express writing as to the waiver, the prohibitive Clause-9 in the Seventh Schedule to the Act would stand attracted and the Arbitrator would be rendered de jure unable to act in terms of Section 14(1)(a) of the Act.
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