In the present case, the 1st respondent appointed the Arbitrator unilaterally without the consent of the petitioner and the respondents which was challenged at award stage.
Hon’ble High Court clarified that:
(i) The petitioner is certainly entitled to challenge the appointment of the Arbitrator under Section 34 of the Act, if there is any violation of the provisions of the Act. Even though, the petitioner had not challenged the unilateral appointment of the sole Arbitrator under Section 13 of the Act, it would not certainly take away the rights of the petitioner to challenge the same under Section 34 of the Act.
(ii) In the present case, by virtue of Section 12(5) of the Act, the learned Arbitrator who was appointed unilaterally, is ineligible to be an Arbitrator and the award passed by him, deserves to be set aside, more particularly, as already observed, there is no express waiver in writing as contemplated under the proviso to Section 12(5) of the Act. Therefore, this Court is of the considered view that irrespective of the stage whether it is at the initial stage of the arbitral proceedings or at stage of the execution of the award, the appointment of the Arbitrator can be questioned, not particularly, under Section 13 but also under Section 34 of the Act and the same can be rectified by this Court.
(iii) Any violation of provisions of the Act is against the public policy of India and the award is liable to be set aside.