Introduction
This article stems from the judgment of the Delhi High Court in Kanodia Infratech Ltd. v. Dalmia Cement (Bharat) Ltd.[1] (Kanodia Infratech), where it was held that the question of lack of jurisdiction of the arbitrator being unilaterally appointed, could not be set up for the first time in a Section 34[2] challenge to an arbitral award. Before analysing the said decision[3], it is necessary to briefly survey the jurisprudence regarding inherent lack of jurisdiction and juxtapose it in the context of the Arbitration and Conciliation Act[4] (the Act), more particularly Section 12[5] and the Fifth[6] and the Second Schedule[7] thereto.
Jurisdiction and inherent lack thereof
The term “jurisdiction” was construed by a seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak[8], where it was held that jurisdiction is the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. Such jurisdiction however can be exercised only when provided for either in the Constitution or in the laws made by the legislature. The power to create and enlarge a jurisdiction is legislative in character and not in the domain of courts. As a sequitur, any decision passed by a court lacking inherent jurisdiction would be coram non judice since a court cannot give itself jurisdiction.
A question arises as to whether parties can waive such inherent lack of jurisdiction and at what stage such plea can be raised. In one of the earliest cases on this subject i.e.Ledgard v. Bull[9], it was held that though consent or waiver can cure a defect in jurisdiction, it cannot cure an inherent lack of jurisdiction. Halsbury’s Laws of England[10] states that where, by reason of limitation imposed by statute, a court lacks inherent jurisdiction, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court.
Further, when an authority exercises jurisdiction it does not possess, its decision amounts to a nullity in law. Thus, a decision by an authority having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be acted upon. It would be of little consequence that such a plea of invalidity was not taken at the earliest possible stage. Reference may be made to decisions of the Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd.[11], and Chiranjilal Shrilal Goenka v. Jasjit Singh[12].
In the context of above, we refer to the provisions of the Act and decipher whether an arbitrator disqualified under Section 12(5) inherently lacks jurisdiction to pass an arbitral award.
The Arbitration Act and the proscription against biased appointments
Independence and impartiality of Judges and adjudicators, be it before courts of law or before tribunals or commissions, is the hallmark of the justice dispensation process. Equally fundamental is the principle of nemo judex in causa sua, ensuring that no person acts as a Judge in his own cause. It is in this context that the 246th Law Commission Report, which suggested sweeping changes to the Act, sought to stymie the practice of unilateral and biased appointment of arbitrators[13]. The Law Commission Report inter alia suggested:
- incorporating the guidelines of the International Bar Association (IBA) to establish the standards of independence and impartiality in the form of Schedules Five and Seven[14] to the Act; and
- introducing Section 12(5) to the Act which would disqualify any person whose relationship with the parties, counsel or the subject-matter of the dispute falls under one of the categories set out in the Seventh Schedule[15].
Section 12(5) read with the Fifth and Seventh Schedules
The recommendations made by the Law Commission Report were incorporated in the Act when it was amended in 2015, resulting in the incorporation of Section 12(5) and the Fifth and Seventh Schedules. The Act drew a clear distinction between persons who became “ineligible” to be appointed as arbitrators and persons about whom “justifiable doubts” exists as to their independence and impartiality. Since the ineligibility of an arbitrator goes to the root of the appointment, Section 12(5) read with the Seventh Schedule makes it abundantly clear that if the arbitrator incurs any disqualification under the items listed in the Seventh Schedule, he de jure becomes ineligible to act as an arbitrator. Per contra, if an arbitrator incurs a disqualification under any of the items enumerated under the Fifth Schedule, he does not ipso facto become ineligible to be appointed as an arbitrator, but invites justifiable doubts about his independence and impartiality.
TRF and Perkins – The final nail in the coffin for unilateral appointments
In TRF Ltd. v. Energo Engg.Projects Ltd.[16] (TRF), the Supreme Court was dealing with a dispute resolution clause which specified that disputes that arose between the parties would be referred to the sole arbitration of the Managing Director of the buyer and/or his nominee. The Supreme Court, relying upon Section 12(5) of the Act read with the Seventh Schedule held that it is inconceivable in law that a person who is statutorily ineligible to act as an arbitrator could also have the power to nominate an arbitrator. Since the Managing Director would necessarily be interested in the outcome of the dispute, the proscription under the Seventh Schedule would squarely apply and the Managing Director could thus neither act as nor nominate an arbitrator – what cannot be done directly may not be done indirectly by engaging another.
In Perkins Eastman Architects DPC v. HSCC (India) Ltd.[17] (Perkins), the Supreme Court extended the applicability of the TRF[18] principle and held that persons with a vested interest in the outcome of a dispute, such as a Managing Director or Chief Executive Officer (CEO) would not only be ineligible to act as an arbitrator but also be proscribed from appointing an arbitrator to adjudicate the dispute. Perkins[19] therefore extended the ineligibility criteria to two categories i.e. ineligibility to act and ineligibility to appoint, effectively putting an end to unilateral appointment clauses in arbitration agreements.
The ratio of Perkins[20] was succinctly explained in the Bombay High Court’s decision in Lite Bite Foods (P) Ltd. v. Airports Authority of India[21] where the Court held that post TRF[22] and Perkins[23], there are only two modes of appointment of an arbitrator – the arbitrator may be appointed by consent of the parties or alternately, there must be an order of the Court appointing an arbitrator. It was held that, “There is simply no third option. This is the destination to which Perkins Eastman[24] takes us for it requires that there be neutrality in the dispute resolution process throughout. You cannot have an impartial arbitration free from all justifiable doubt if the manner in which the arbitral tribunal is constituted itself is beset by justifiable doubt.”
HRD and inherent lack of jurisdiction
Another judgment of the Supreme Court i.e. HRD Corpn. v. GAIL (India) Ltd.[25] (HRD) bears significant importance to the present discourse.
In HRD[26], the Supreme Court interpreted the 2015 amendment[27] in Section 12 of the Act to state that by virtue of the amendment, a dichotomy had been created between persons who were ineligible to be appointed as an arbitrator (i.e. as a result of them being disqualified under the Seventh Schedule), and persons about whom justifiable doubts exits as to their impartiality (i.e. as per the grounds stated in the Fifth Schedule). The Court went on to explain that in case of arbitrators being disqualified under Section 12(5) read with the Seventh Schedule, they become de jure unable to perform their duties. Importantly, it was held that “such a person would lack inherent jurisdiction to proceed any further” and thus it was not required that his jurisdiction be first challenged under Section 13[28] and if unsuccessful thereunder, then under Section 34.
Thus, HRD[29]holds that when an arbitrator is disqualified under the Seventh Schedule, he lacks inherent jurisdiction and his mandate can be terminated under Section 14[30]. Now, in light of what Perkins[31]has held i.e. a unilateral appointment being impermissible, several High Courts have terminated the mandate of arbitrators appointed unilaterally under Section 14[32]. Thus, if unilateral appointment can lead to termination of mandate under Section 14 and Section 14 in turn can be resorted to if the arbitrator lacks inherent jurisdiction (being disqualified under the Seventh Schedule)–the only logical sequitur would be that a person unilaterally appointed would lack inherent jurisdiction. This is what a conjoint reading of HRD[33]and Perkins[34]must lead us to.
The reason behind the above is that if the appointing authority i.e. one of the parties to the agreement, would itself lack inherent jurisdiction by virtue of being disqualified under the Seventh Schedule, any arbitrator unilaterally appointed by it, without going into the merits of the arbitrator’s purported impartiality and independence, would meet with the same fate.
BBNL and waiver of such ineligibility
Moving to the question of waiver of such lack of jurisdiction, profitable reference can be made to Bharat Broadband Network Ltd. v. United Telecoms Ltd.[35] (BBNL). In BBNL[36], the arbitration clause provided for reference of arbitration to the CMD of BBNL or his appointee. Appointment of the arbitrator by BBNL pursuant to such clause was under challenge.
After referring to the judgment in HRD[37], the Supreme Court reiterated that if a person falls within any of the categories set out in the Seventh Schedule “he is, as a matter of law, ineligible to appointed as an arbitrator” and that “in all Section 12(5) cases, there is no challenge procedure to be availed of”. The Court held that such inability can also be removed by the proviso to Section 12(5) i.e. by an express agreement in writing. Such waiver under the proviso to Section 12(5) must be contrasted with Section 4 of the Act[38] – Section 4 also providing for deemed waiver by conduct. Thus, the agreement contemplated under the proviso to Section 12(5) must be express and state that the parties agree to the appointment of such ineligible arbitrator. The mere filing of a statement of claim would not lead to the inference that there was an express agreement of such nature.
Accordingly, relying on the findings in TRF[39], the appointment of the arbitrator was held to be non est. For the purposes of the present article, it is relevant to note that though BBNL[40] was rendered in the context of Sections 11[41], 12 and 14 of the Act, the Supreme Court ultimately set aside the award since the invalid appointment rendered the award delivered by such an arbitrator/tribunal, infructuous.
The appropriate stage for objecting to the jurisdiction of an arbitrator
From a consecutive reading of the above, the issue that arises for consideration is whether an objection to the jurisdiction of an arbitrator can be taken for the first time in a Section 34 petition.
In Lion Engg. Consultants v. State of M.P.[42], (Lion Engineering) the Supreme Court has held that a party that has failed to challenge the jurisdiction of the arbitrator/tribunal under Section 16 of the Act[43] is not precluded from raising such objection for the first time at the stage of setting aside of an award. The Supreme Court observed that the nature of enquiry in a Section 16 proceeding and a Section 34 proceeding are independent of each other and as such, a plea of lack of inherent jurisdiction can be raised in a Section 34 proceeding.
It would be pertinent to note that Section 16(1) of the Act permits an arbitrator/tribunal to determine any objection as to its jurisdiction, including objections pertaining to the existence and validity of arbitration agreements. Further, as per Section 16(2), objections to the jurisdiction of the Tribunal must be taken prior to the submission of the statement of defence.
Accordingly, the judgment in Lion Engineering[44]prima facie appears to be in variance to the scheme of the Act and another coordinate Bench ruling of the Supreme Court in Narayan Prasad Lohia v. Nikunj Kumar Lohia[45] (Narayan Lohia). In Narayan Lohia[46], the jurisdictional challenge was in relation to the composition of the Arbitral Tribunal. The objection was raised for the first time in the Section 34 proceedings and not before the Arbitral Tribunal. The Supreme Court, taking stock of Sections 16(1) and 16(2) of the Act, held that such a challenge ought to have been raised before the submission of the statement of defence and since the party had chosen not to raise such objection before the Arbitral Tribunal, the same shall be construed to be a waiver of its objections on the jurisdiction of the Tribunal.
However, as discussed above, the judgment in BBNL[47] has categorically established that a waiver under Section 12(5) of the Act, challenging the jurisdiction of the arbitrator/tribunal on grounds of unilateral appointment has to be express and cannot be implied from the conduct of the parties. It must be borne in mind that Narayan Lohia[48] was rendered prior to the 2015 Amendment and thus did not have the occasion to consider the term “an express agreement in writing” occurring in the proviso to Section 12(5).
The view expressed in Lion Engineering[49] was subsequently reiterated by a three-Judge Bench of the Supreme Court in Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd.[50] (Hindustan Zinc) where the Supreme Court held that “it is settled law that if there is an inherent lack of jurisdiction, the plea can be taken up at any stage and also in collateral proceedings.” Thus, the Supreme Court upheld the raising of a plea of lack of inherent jurisdiction for the first time, even at the stage of an appeal under Section 37[51] of the Act[52].
It would be apposite to also refer to a two-Judge Bench decision of the Supreme Court in GAIL v. Keti Construction (India) Ltd.[53] which attempted to put a rest to the controversy surrounding challenge to the jurisdiction of the arbitrator in a Section 34 proceedings. The Supreme Court, while negating a jurisdictional challenge in Section 34 proceedings went ahead to observe that “If a plea of jurisdiction is not taken before the arbitrator as provided under Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown.”[54]
Therefore, as on date, there exists a dichotomy between coordinate Benches of the Supreme Court where diverging views have been taken on the issue of the appropriate stage for challenging the jurisdiction of the arbitrator.
However, having noted the difference in opinion of the Supreme Court, it must be borne in mind that the Supreme Court, neither in GAIL[55] nor in Narayan Lohia[56] was concerned with a plea of inherent lack of jurisdiction. At the beginning of the article, we have emphasised that an inherent lack of jurisdiction would be different from a defect in jurisdiction inasmuch as no amount of waiver/acquiesce can give a court/tribunal a jurisdiction which it inherently does not have. Further, as discussed hereinabove, a reading of HRD[57]and Perkins[58] takes us to the inescapable conclusion that an arbitrator unilaterally appointed would lack inherent jurisdiction. Thus, it is apparent that Lion Engineering[59] and Hindustan Zinc[60] would squarely apply when a plea of unilateral appointment is made, for such plea relates to the inherent lack of jurisdiction of an arbitrator.
Kanodia Infratech and contemporaneous views of other High Courts
Before adverting to the decision in Kanodia Infratech[61], persuasive reference can be made to the decisions of the other High Courts.
The Bombay High Court in Jatin Pratap Desai v. A.C. Choksi Share Broker (P) Ltd.[62] has held that when an arbitrator inherently lacks the jurisdiction to adjudicate upon an action, the issue of jurisdiction could be raised for the first time under Section 34. The Madras High Court in J.V. Engg. Associate v. CORE[63] (CORE), after relying upon TRF[64], Perkins[65] and HRD[66]held that an award having been passed by an arbitrator who is ineligible under Section 12(5), deserves to be set aside. The Calcutta High Court in Jagdish Kishinchand Valecha v. Srei Equipment Finance Ltd.[67], not only set aside the award on the ground that the arbitrator was ineligible under Section 12(5), but also went a step further and appointed a new arbitrator in the Section 34 proceedings.
However, none of the above judgments have had the occasion to consider the issue as to whether a challenge as to the inherent lack of jurisdiction of an arbitrator appointed unilaterally can be raised for the first time in a Section 34 petition. This is where Kanodia Infratech[68] becomes relevant.
In Kanodia Infratech[69], the arbitrator had been unilaterally appointed by the respondent claimant. The petitioner had also filed its statement of defence/counterclaim and a Section 17[70] application before the arbitrator. No challenge as to the jurisdiction of the arbitrator on the ground of his being unilaterally appointed was made under Sections 13, 14 or 16. Ultimately the award was rendered in favour of the respondent claimant. The petitioner sought to challenge the award principally on the ground that the arbitrator lacked inherent jurisdiction to adjudicate the dispute since he was unilaterally appointed. However, the Delhi High Court negated the challenge to the award on such ground. The reasoning adopted by the Delhi Court and the authors’ humble opinion in disagreement thereof are listed as under:
- —The petitioner had filed counterclaims before the arbitrator as well as an application for interim relief.
Opinion.—As per BBNL[71],taking part in arbitration proceedings or filing of a pleading cannot result in a deemed waiver since the proviso to Section 12(5) uses the words “an express agreement in writing”.
- Reason.—Even after Perkins[72]was pronounced by the Supreme Court, no jurisdictional challenge was raised.
Opinion.—As stated above, an arbitrator unilaterally appointed, would lack inherent jurisdiction, being disqualified by implication under the Seventh Schedule. Once he lacks inherent jurisdiction, such plea can be raised at any stage.
- —Perkins[73], TRF[74] and BBNL[75]were rendered in the context of Section 11 of the Act and would not be applicable in a Section 34 petition.
Opinion.—Perkins[76]and TRF[77] establish the prohibition against unilateral appointments in the context of Section 12(5) read with the Seventh Schedule. Such an arbitrator is not only ineligible [and hence de jure unable to act an arbitrator (as per BBNL[78]) so as to merit a fresh appointment under Section 11], but also lacks inherent jurisdiction – rendering an award made by him as non est and void ab initio.
- —Hindustan Zinc[79] is distinguishable since in the said case the challenge was on the ground that the State Electricity Commission had no authority to appoint the arbitrator, and no challenge was made to the unilateral appointment of an arbitrator.
Opinion.—Hindustan Zinc[80]while holding that the State Electricity Commission had no authority to appoint the arbitrator, allowed such plea to be raised at Section 37 stage on the ground that the arbitrator lacked “inherent jurisdiction”. The same ground is applicable when an arbitrator is unilaterally appointed.
- —The arbitrator was a retired Judge and hence, his integrity cannot be doubted.
Opinion.—Perkins[81]clearly holds that even if the arbitrator appointed may not be disqualified and may be neutral, the very fact that he was unilaterally appointed is beset by justifiable doubt.
Thus, it is the authors’ view that Kanodia Infratech[82] might need to be revisited by a larger Bench. In fact, a similar issue is also currently sub judice before another Single Bench of the Delhi High Court in Ruia Exports v. Moneywise Financial Services (P) Ltd.[83].
It is also relevant to note that the Bombay High Court, in a petition under Section 34, was in fact quick to stay the operation of an award since the entire appointment procedure of the Arbitrator was unilateral. In Sanjay Pukraj Bafna v. Volkswagon Finance (P) Ltd.[84], it was held that an improper and impermissible appointment imperils any arbitral award, for it goes to the root of the matter.
Conclusion
At the outset, it would be crucial to note that the authors have not come across any Supreme Court ruling involving a situation where an unilateral appointment of arbitrator was considered to be a valid ground for setting aside of an award, despite the fact that no challenge to the inherent jurisdiction of the arbitrator was raised by the parties during the pendency of the arbitral proceedings. The Madras High Court in CORE[85] did attempt to deal with such a situation. However, beyond observing that that parties had not expressly waived the applicability of Section 12(5) of the Act, the Madras High Court did not shed light on the jurisdictional aspect behind the issue of challenging unilateral appointment of arbitrators for the first time in a Section 34 proceeding.
That being said, from a conspective reading of the jurisprudence on the existing subject, the authors contend that parties cannot be precluded from objecting to the jurisdiction of an arbitrator on grounds of its appointment being hit by Section 12(5) of the Act, as long as such jurisdiction translates to an inherent lack of jurisdiction. Ostensibly therefore, any disqualification incurred under the Seventh Schedule would amount to a lack of inherent jurisdiction.
Further, the Supreme Court in Associate Builders v. DDA[86] while explaining the scheme of patent illegality as a ground of setting aside arbitral awards held that “a contravention of the Arbitration Act itself would be regarded as a patent illegality”(para 42.2 – as confirmed in para 39 of Ssangyong Engg. & Construction Co. Ltd. v. National Highways Authority of India[87]). Since allowing an arbitrator to be appointed despite being disqualified under the Seventh Schedule to the Act would be in contravention to the provisions of the Act, and thus, patently illegal, the authors submit that there is no express proscription from raising such a jurisdictional challenge for the first time in a Section 34 proceeding.
However, as a matter of practice and prudence, parties must attempt to raise any and/or all jurisdictional challenges at the earliest and in any event before the filing of the statement of defence, to avoid wastage of time and resources.
*Advocate, Bombay High Court.
**Advocate, Jharkhand High Court.
[2]Arbitration and Conciliation Act, 1996, S. 34.
[3]Kanodia Infratech Ltd. v. Dalmia Cement (Bharat) Ltd., 2021 SCC OnLine Del 4883.
[4]Arbitration and Conciliation Act, 1996.
[5]Arbitration and Conciliation Act, 1996, S. 12.
[6]Arbitration and Conciliation Act, 1996, Sch.5.
[7]Arbitration and Conciliation Act, 1996, Sch. 2.
[10](4th Edn., Reissue), Vol. 10, para 317.
[13]Law Commission of India, Report No. 246: Amendments to the Arbitration & Conciliation Act, 1996.
[14]Arbitration and Conciliation Act, 1996, Sch. 7.
[15] See Clause 8(iv) at p. 49 of the Law Commission Report.
[27]Arbitration and Conciliation (Amendment) Act, 2015.
[28]Arbitration and Conciliation Act, 1996, S. 13.
[30]Arbitration and Conciliation Act, 1996, S. 14.
[32]See Raksha Vigyan KaramchariSahkariAwas Samiti Ltd. v. Proto Developers and Technologies (P) Ltd., 2021 SCC OnLine Del 2731; Reom Infrastructure and Construction Ltd. v. Air Force Naval Housing Board, 2021 SCC OnLine Del 2857; Score Information Technologies Ltd. v. GR Infra Projects Ltd., 2021 SCC OnLine Del 3547; Harsh Haresh Desai v. Dewan Housing Financial Corpn. Ltd., 2020 SCC OnLine Bom 10650; VSK Technologies (P) Ltd. v. Delhi Jal Board, 2021 SCC OnLine Del 3525; K. Jeganathan v. P. Sampath, 2020 SCC OnLine Mad 17704.
[38]Arbitration and Conciliation Act, 1996, S. 4.
[41]Arbitration and Conciliation Act, 1996, S. 11.
[43]Arbitration and Conciliation Act, 1996, S. 16.
[51]As an aside, it may be noted that the Supreme Court in State of Chhattisgarh v. Sal Udyog (P) Ltd., 2021 SCC OnLine SC 1027, has also held that fresh grounds for challenge can be raised in S. 37 appeal, even if the same was not raised in a S. 34 petition.
[52]Hindustan Zinc, (2019) 17 SCC 82 was authoritatively referred to by the Supreme Court in MP Power Trading Co. Ltd. v. Narmada Equipments (P) Ltd., 2021 SCC OnLine SC 255, though in the context of a S. 11 application.
[54]While GAIL, (2007) 5 SCC 38 attempted to qualify its finding and carve out an exception to jurisdictional challenges being raised in a S. 34 proceeding, it is unlikely that its findings would have significant precedential value since the findings in Lion Engineering, (2018) 16 SCC 758, Narayan Lohia, (2002) 3 SCC 572 and Hindustan Zinc, (2019) 17 SCC 82 have been delivered by Benches of a larger strength.
[70]Arbitration and Conciliation Act, 1996, S. 17.
[73] 2019 SCC Online SC 1517.
[83]OMP (COMM) No. 16 of 2020 (Del HC).