Company Limited vs Avinash Kumar And Anr
2023 Latest Caselaw 719 Cal/2

ODC 20
                                ORDER SHEET
                                EC/462/2022
                              IA NO: GA/1/2023
                      IN THE HIGH COURT AT CALCUTTA
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                           COMMERCIAL DIVISION


              M/S CHOLAMANDALAM INVESTMENT AND FINANCE
                          COMPANY LIMITED
                                 VS
                       AVINASH KUMAR AND ANR


     BEFORE:
     The Hon'ble JUSTICE SHEKHAR B. SARAF
     Date: 20th March, 2023.

                                                                      Appearance:
                                                             Mr. Ranjit Singh, Adv.
                                                  Ms. Pooja Sett Chakraborty, Adv.

                                                        Mr. Priyankar Saha, Adv.
                                                        Mr. Lalratan Mondal, Adv.


The Court:



1.

The instant execution petition arises out of an award passed by a

unilaterally appointed sole arbitrator.

2. While dealing with the fate of such awards, this Court in Cholamandalam

Investment and Finance Company Ltd. -v- Amrapali Enterprises and

Anr. reported in 2023 SCC OnLine Cal 605, had outlined the inherent

lack of jurisdiction that plagues the awards passed by unilaterally

appointed sole arbitrators.

This Court held, in the light of the judgments of the Supreme Court in

HRD Corporation -v- GAIL reported in (2018) 12 SCC 471, TRF Limited -

v- Energo Engineering Projects Limited reported in (2017) 8 SCC 377,

Perkins Eastman Architects DPC -v- HSCC (India) Limited reported in

(2020) 20 SCC 760, and Bharat Broadband Network Limited -v- United

Telecoms Limited reported in (2019) 5 SCC 755, that arbitral

proceedings conducted by arbitrators who are unilaterally appointed are

vitiated from the very beginning and that any award as a result of such

proceedings is a nullity, and therefore, has to be regarded as non-est in

law.

3. While, this inherent lack of jurisdiction can be cured through a written

express waiver in terms of the proviso to Section 12(5) of the Arbitration

and Conciliation Act, 1996 ('Act'), the same has not been done in the

instant case. As such, this Court is bound to conclude that there is no

award which can be executed in the instant execution petition.

4. As a result of the aforesaid findings, the parties are at liberty to re-agitate

the matter before a new arbitral tribunal in accordance with the law.

5. However, the parties before me, have consented for the appointment of an

arbitrator and waived the applicability of Section 21 of the Act.

Accordingly, I appoint Mr. Shuvasish Sengupta, Advocate, Mob. No.

9830855276 as the Sole Arbitrator to adjudicate the dispute between the

parties.

6. The appointment is subject to submission of declaration by the Arbitrator

in terms of Section 12(1) in the form prescribed in the Sixth Schedule of

the Act before the Registrar, Original Side of this Court. Such declaration

must be furnished within four weeks from the date of this order. Let this

order be conveyed to the Arbitrator by the Registrar, Original Side

forthwith.

7. Accordingly, EC/462/2022 along with GA/1/2023 is disposed of. There

shall no order as the costs.

(SHEKHAR B. SARAF, J.)

sp/