08 November 2021 | Kanodia Infratech Limited v. Dalmia Cement (Bharat) Limited | OMP (Comm) 297/2021 | Suresh Kumar Kait J | Delhi High Court | 2021 SCC OnLine Del 4883
The Delhi High Court has refused to apply the Perkins rule to set aside an award.
In accordance with the agreement, the respondent appointed in 2018 a sole arbitrator (a former Judge of the Punjab and Haryana High Court). His award of March 2021 was challenged by the petitioner mainly on the ground that the arbitrator lacked inherent jurisdiction to entertain and try the disputes because he was, contrary to the Perkins discourse, unilaterally appointed by the respondent (in October 2018 before the Perkins decision).
The challenge was rejected on the reasoning that the petitioner never objected before the award went against him, and actively participated in the arbitration proceedings in the following manner (among others):
Kait J also notes that the Perkins decision was handed up on 26 November 2019 during the pendency of arbitral proceedings, but no objection was raised. The objections came later once the award was against the petitioner.
Further, he distinguished several authorities:
The challenge that the award dealt with different agreements was rejected concluding that the agreements constituted a composite transaction and should be consolidated and heard together. The challenge that the arbitrator made erroneous findings was rejected relying on Delhi Airport 2021 SCC OnLine SC 695.
However, an award of compensation of Rs. 4.00 crore was severed and set aside relying among others on Bachhaj Nahgar v. Nilima Mandal (2008) 17 SCC 491 (where relief is granted despite no prayer or pleading, miscarriage of justice occurs).
Read the judgment here.
Categories: Application for Setting Aside Arbitral Award | Appointment of Arbitrators | Bharat Broadband | De Jure Ineligibility | Delhi Airport | Express Agreement in Writing | Failure or Impossibility to Act | Grounds for Challenge | Ineligibility of Arbitrator | Perkins | Section 12 (5) ACA | Section 12 ACA | Section 34 ACA | Seventh Schedule | Termination of Mandate and Substitution of Arbitrator | TRF | Unilateral Appointment of Arbitrator | Waiver