TaxTMI 
TaxTMI 
2024 (6) TMI 1506
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....ustice M.S. Sanklecha, any other Former Judge of any High Court may be appointed as a sole Arbitrator and not Hon'ble Mr. Justice M.S. Sanklecha. The learned Senior Counsel has very fairly submitted that the respondent is not making any allegation of bias against the learned Judge, but the respondent insists on appointment of any other person as sole Arbitrator having regard to the express provisions contained in sub-section (3) of Section 12 of the Arbitration and Conciliation Act, 1996 read with Entry 24 of the Fifth Schedule of the Act, 1996. 3. The undisputed facts which are germane are that the petitioner was an employee of Pricewaterhouse Coopers Pvt. Limited, a registered Company (herein after referred to as 'Company') and was also an equity partner of Pricewaterhouse Cooper Services LLP, which is the respondent herein. It is however contended by the petitioner that he was not given a copy of the LLP Agreement and he did not have knowledge of the clauses contained therein. After his retirement and upon disputes arising between the petitioner and the respondent, the petitioner issued two separate arbitration notices, calling for appointment of Arbitrator to resolve the dis....
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.... for the appointment of the same arbitral tribunal to adjudicate multiple disputes between the same parties arising out of the same contract, to avoid duplication of arguments and save time. Moreover, the appointment of Hon'ble Mr.Justice M.S.Sanklecha was by the court and not nominated by the petitioner. It is submitted that the petitioner has been insisting for consolidated arbitration proceedings since the claim of the petitioner, although arising out of his relationship with the Company on one hand and the LLP Agreement on the other, nevertheless, the issues are closely related to each other. The learned Counsel would hasten to add that the petitioner is not insisting on a consolidated arbitration, however, having regard to the nature of the claim made by the petitioner, it would be in the interest of justice and to avoid conflicting decisions, that the arbitration should be conducted by the same person who has been appointed by the court to consider the other disputes between the petitioner and the Company. 6. However, learned Senior Counsel Sri. C.K. Nandakumar seeks to place reliance on another judgment of the Hon'ble Supreme Court in the case of HRD Corporation(Marcus Oi....
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....ct, such person shall be ineligible to be appointed as an Arbitrator, in terms of sub-section (5) of Section 12. It is not the case of the respondent that the person sought to be appointed as Arbitrator incurs any of the disqualification under the Seventh Schedule. 10. The Hon'ble Apex Court in HRD Corporation (supra) and Panipat Jalandar (supra) has held that the disqualification contained in Entry 22 and 24 are not absolute, if he/she is able to show that he/she was independent and impartial on the earlier two occasions. In a case falling under Entry 24, where a person appointed as Arbitrator currently serves as Arbitrator in another arbitration on a related issue, the Hon'ble Apex Court has clearly drawn a distinction in paragraph No.24 of HRD Corporation (supra), as follows: "24. On reading the aforesaid guideline and reading the heading which appears with Item 16, namely "Relationship of the arbitrator to the dispute", it is obvious that the arbitrator has to have a previous involvement in the very dispute contained in the present arbitration. Admittedly, Justice Doabia has no such involvement. Further, Item 16 must be read along with Items 22 and 24 of th....
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....ate of the respondent herein is barred from being appointed as an Arbitrator in the present case. The gravamen of the issue has been considered and answered in paragraph No.28 in Panipat Jalandar (supra) as follows: "28. The issue of reasonable likelihood of bias must be dealt with objectively from the point of view of a neutral third person. The question to be posed is, whether a neutral third person would perceive the appointment of the Arbitrator as unfair. In other words, the Court has to address to itself the core question of whether the Arbitrator has such interest in the Arbitration, or any of the parties thereto, that could colour his objectivity and sway his decision in any particular way, keeping in mind the grounds specified in the Fifth Schedule. However, a person whose relationship with the parties or counsel or the subject matter of the dispute falls is any of the categories specified in the Seventh Schedule, would outright be ineligible to be appointed as an Arbitrator." 12. As in the case of Panipat Jalandar (supra), this is not a case where different arbitration references relating to different contracts are being made to the same Arbitrator. The appoin....