ORDER : 1. In this petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, petitioner has sought for the following reliefs: “(i) Allow the Petition by annulling the procedure adopted by the Respondent for the appointment of arbitrators under Clause 17.9 of the General Conditions of Contract Agreement dated 28th June 2010 produced at Annexure-A. (ii) Appoint a new arbitral tribunal outside the panel of arbitrators maintained by the Respondent, in the matter of the dispute between the Petitioner and the Respondent. (iii) Pass such further orders or directions as this Hon'ble Court may deem fit in the fact and circumstances of the present case.” CONTENTIONS OF THE PETITIONER: (i) The Petitioner “M/s. JMC-ATEPL Joint Venture” is a joint venture between JMC Projects (India) Ltd., and Arvind Techno Engineers Private Limited. The Respondent-BMRCL is a company incorporated under the Companies Act, 1956, as a Government Undertaking and is a joint venture of Government of India and Government of Karnataka and is a Special Purpose Vehicle entrusted with the responsibility of implementation of Bangalore Metro Rail Project. (ii) It is contended that in the year 2009, the Respondent floated a tender inviting bids for the ‘construction of elevated structures (Viaduct) of approximate length 3.91 km and construction of three numbers of elevated metro stations of North-South Corridor of Bangalore Metro Rail Project. The Petitioner was successful in the bid for the Project and accordingly, the Respondent issued a Notice to proceed along with the Letter of Acceptance (LOA) on 30.04.2010. Pursuant to the LOA, an Agreement dated June 28, 2010 with the accepted Contract amount of Rs. 265,75,46,593/- (Rupees Two Sixty Five Crores Seventy Five Lakhs and Forty Six Thousand Five Hundred and Ninety Three) was entered into between the Petitioner and the Respondent for the execution of the Project. Upon completion of the entire project, as a consequence of the failure and defaults of the Respondent, disputes arose between the parties and the Petitioner was constrained to invoke Clause 17 of the General Conditions of Contract (for short ‘GCC’) which provides a mechanism for resolution of disputes arising out of the Contract. Upon completion of the entire project, as a consequence of the failure and defaults of the Respondent, disputes arose between the parties and the Petitioner was constrained to invoke Clause 17 of the General Conditions of Contract (for short ‘GCC’) which provides a mechanism for resolution of disputes arising out of the Contract. The GCC states that a dispute shall be deemed to have arisen when one party serves on the other party, a notice in writing stating the nature of the dispute; it further envisages that disputes shall be settled through two stages ‘Conciliation’ and ‘Arbitration’ as provided in the Act. Clause 17.9 of the GCC is the arbitration agreement which specifically provides for resolution of disputes by arbitration. Clause 17.9 reads as under: “17.9 If the efforts to resolve all or any of the disputes through conciliation falls, then such disputes or differences, whatsoever arising between the Parties, arising out of touching or relating to construction/manufacture, measuring operation of effect of the Contract or the breach thereof shall be referred to Arbitration in accordance with the following provisions: (a) Matters to be arbitrated upon shall be referred to Sole Arbitrator where the individual claim does not exceed Rs. Five (5) million or the total value of claims does not exceed Rs. Fifteen (15) millions. Beyond the above limits, there shall be three Arbitrators. For this purpose the Employer shall maintain a panel of Arbitrators with the requisite qualifications and professional experience relevant to the field to which the Claims relate. In case of a Sole Arbitrator, the Panel will be of three Arbitrators are to be appointed, the Employer will make out a panel of five. The Contractor and the Employer will choose one Arbitrator each from the above and the two so chosen will choose the third Arbitrator from the above Panel only who will act as the 'Presiding arbitrator' of the Arbitration Panel. If in a dispute, the Contractor fails to choose the Arbitrator within thirty (30) days after the Employer has nominated the Panel, the Employer may apply to the Indian Council of Arbitration, New Delhi, to nominate an Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. If in a dispute, the Contractor fails to choose the Arbitrator within thirty (30) days after the Employer has nominated the Panel, the Employer may apply to the Indian Council of Arbitration, New Delhi, to nominate an Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. If, in a dispute, the two chosen Arbitrators fail to appoint third Arbitrator within thirty (30) days after they have been appointed, the Employer may apply to the Indian Council of Arbitration, New Delhi, to nominate the third Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. Neither, party shall be limited in the proceedings before such Arbitrators to the evidence or arguments put before the Engineer for the Purpose of obtaining his decision. No decision given by the Engineer in accordance with the foregoing provisions shall disqualify him from being called as a witness and giving evidence before the Arbitrators on any matter, whatsoever, relevant to dispute or difference referred to Arbitrators. The arbitration proceedings shall be held in BANGALORE only. The language of proceedings, which of documents and communication shall be English. (b) The Employer at the time of offering the panel of Arbitrators to be appointed as Arbitrator shall also supply the information with regard to the qualifications of the said Arbitrators nominated in the panel along with their professional experience phone nos. an address to the Contractor. (c) The award of the sole arbitrators shall be binding on all parties. (d) In arbitral proceedings with more than one Arbitrators, any decision of the arbitral tribunal shall be made by a majority of all the members and shall be binding on all parties.” (iii) It is contended that in accordance with Clause 17 of GCC, the Petitioner vide letters dated 14.02.2019, made request for Conciliation to the Respondent who failed and neglected to respond to the request for Conciliation. In view of the said failure, Petitioner invoked the arbitration clause in terms of Clause 17.9 by issuing a Notice for Reference to Arbitration vide letter dated 05.04.2019, seeking reference of the disputes that had arisen between the parties to an arbitral tribunal. In view of the said failure, Petitioner invoked the arbitration clause in terms of Clause 17.9 by issuing a Notice for Reference to Arbitration vide letter dated 05.04.2019, seeking reference of the disputes that had arisen between the parties to an arbitral tribunal. (iv) It is contended that the procedure for appointment of arbitrators is as stipulated under clause 17.9 of the Contract; the stipulated provisions for the nomination of arbitrators are such that the Respondent retains complete control over the constitution of the Arbitral Tribunal and can ensure that each member of the Tribunal is a person that the Respondent has selected based on criteria decided and designed by the Respondent; the Respondent has the exclusive right to maintain a panel of arbitrators consisting of arbitrators who are chosen exclusively by the Respondent. Based on the value of the claims the Contractor is required to choose from the panel of arbitrators curated only by the Respondent. (v) Under the stipulated procedure for dispute resolution as envisaged under clause 17.9 of the Contract, when the claim involved is more than Rupees fifteen million, the Respondent is required to make out a panel of five (5) arbitrators, out of which the Petitioner and Respondent are required to nominate one person each and the ‘Presiding Arbitrator’ is to be nominated by the two nominated arbitrators from the very same panel of five (5) arbitrators provided/maintained by the Respondent. Though Clause 17.9 stipulates the procedure for the appointment of arbitrators and the basis for maintaining the panel of arbitrators, this procedure is entirely flawed and prejudicial to the Petitioner; the procedure under Clause 17.9 not only grants a unilateral right to the Respondent to curate the panel of arbitrators, but it is also alarming to observe that this panel of arbitrators is never static and is continuously altered by removing and substituting certain arbitrators by the Respondent for reasons best known to them. (vi) It is contended that whilst the Respondent maintains a panel which gives seemingly an impression that Respondent is being only a facilitator and not the appointing authority, the fact is that they are the appointing authority because the procedure for the constitution of the arbitral tribunal is completely controlled by the Respondent; the appointment procedure under the Contract gives the Respondent an exclusive right to maintain a panel of arbitrators and the Petitioner is merely required to choose one arbitrator from the panel of arbitrators decided and maintained by the Respondent. (vii) It is contended that the Respondent vide letter dated 04.05.2019 provided a list of arbitrators, from which the Petitioner was directed to nominate its arbitrator. Pursuant thereto, petitioner nominated Hon’ble Mr. Justice A.N. Venugopala Gowda, a former Judge of this Court as the Arbitrator. The Respondent nominated Mr. A.P. Joshi, IAS (Retd.) former Secretary Government of India, as its nominee Arbitrator. Pursuant thereto, Respondent communicated to Hon’ble Mr. Justice Ashok B. Hinchigeri, former Judge of this Court about his appointment as the Presiding Arbitrator vide letter dated 10.07. 2019. (viii) It is contended that pursuant to constitution of the Arbitral Tribunal, the Petitioner filed its Statement of Claims and the Respondent filed its Statement of Defense and Counter Claims. The Petitioner filed its reply to the Statement of Counter Claims and rejoinder to the reply to the Statement of Defense filed by the Respondent. The Arbitral Tribunal has framed issues and the matter is presently set down for filing of affidavit of witnesses of the petitioner. (ix) It is contended that the entire procedure for the appointment of arbitrators, as per clause 17.9 of the Contract is conducted at the sole discretion and volition of the Respondent and the Petitioner has no option but to select an arbitrator who is empanelled to the panel of arbitrators maintained by the Respondent; Petitioner had absolutely no role in the appointment of the Arbitrators, as the Contract provides that the Respondent alone shall have the sole discretion in maintaining the panel of arbitrators from which the Petitioner shall merely choose one arbitrator; this procedure is contrary to law as well as the decisions of the Apex Court wherein it has been categorically held that a person who is interested in the decision or outcome of the arbitral proceedings shall be barred from appointing the Arbitrators. It is therefore contended that the appointment of the arbitral tribunal herein in the instant case was the unilateral act of the Respondent and hence the entire procedure adopted herein in the appointment of the arbitrators is contrary to law. It was also contended that the appointment of the arbitrators is also contrary to Section 12 of the Act; further, all the three appointed arbitrators are ineligible and disqualified under Schedule V and/or Schedule VII of the Act and consequently, their appointment is invalid on this ground also. (x) It is contended that the procedure adopted in the appointment of the arbitral tribunal in the present case is contrary to the provisions of the Act as the Respondent is an interested party to the outcome of the arbitration proceedings. The procedure of appointment as stipulated under the Contract provides excessive discretionary rights to the Respondent and is hence barred from appointing the Arbitrator and as such, petitioner has filed the present petition for appointment of independent arbitrators outside the panel of arbitrators maintained by the Respondent. CONTENTIONS OF THE RESPONDENT: (i) The present Petition filed under Section 11(6) of the Act is not maintainable; the provisions of Section 11(6) of the Act can be invoked only in the circumstances where there is failure by a party to act as required under the procedure relating to choosing the Arbitrator or where there is disagreement between the parties or where the institution named to appoint the Arbitrator has failed to perform its duties regarding appointment of Arbitrators; unless a case is made out to satisfy the ingredients of Section 11(6) of the said Act, the power there under cannot be exercised; in the present case, the occasion of appointment/nomination of arbitrators by the parties has already taken place; similarly, the event of both the nominee Arbitrators choosing the Presiding Arbitrator has also taken place leading to the constitution of the Arbitral Tribunal; further, the Arbitral Tribunal has already held 5 sittings and had posted the matter for recording of Evidence by way of filing of Affidavit and as such, the present petition is not maintainable. (ii) It is contended that the Respondent always maintains a broad based panel of arbitrators comprising of well-qualified persons who are well versed in the concerned subjects of disputes and well versed in various fields that are relevant to infrastructure development contracts; the panel of arbitrators consist of former judges of this Hon’ble Court, retired officials/engineers of government departments, public sector undertakings, including from railways, public works department, retired IAS officers, retired income tax commissioners, etc. and as such, the empanelled arbitrators are well qualified to be Arbitrators within the meaning of Section 43J r/w Eighth Schedule of the Act. Furnishing such a broad based panel enables the contractors to freely choose their nominee from a wide choice, thereby making the procedure fair and independent. (iii) It is contended that after the conclusion of the works, relating to the present dispute, the Petitioner had made certain claims against the Respondent and had, as such, sought for reference of such claims to conciliation as per clause 17.6 of GCC. Since the conciliation proceedings were not initiated within the contractual prescribed period of 30 days, Petitioner had invoked the provisions of clause 17.9 of GCC and had sought to this Respondent to refer the matters in dispute to arbitration. Accordingly, the Petitioner had issued a letter dated 05.04.2019, requesting for reference of the matters in dispute to arbitration in terms of clause 17.9 of GCC. In the said letter, the Petitioner had requested the Respondent to provide the panel consisting of 5 arbitrators, along with information regarding their qualifications, professional experience and contact details, so that it can choose one among them as the Arbitrator. (iv) At the time of the receipt of the said request of the Petitioner, the Respondent had maintained a broad based panel of 14 arbitrators which included 5 former Judges of the High Court of Karnataka and 9 officers from Railways and PSU’s chosen from the field of Engineering, Administration, technical and taxation matters. Although the contractor required the Respondent to provide the names of 5 arbitrators to enable the Petitioner to choose one, and even the request of the claimant was to provide the panel consisting of five arbitrators the Respondent had decided to share the entire list of 14 arbitrators to enable the contractor to choose its nominee. Although the contractor required the Respondent to provide the names of 5 arbitrators to enable the Petitioner to choose one, and even the request of the claimant was to provide the panel consisting of five arbitrators the Respondent had decided to share the entire list of 14 arbitrators to enable the contractor to choose its nominee. Accordingly, in response to the said letter of the Petitioner, the Respondent had issued a letter dated 04.05.2019 providing the list of 14 arbitrators who were empanelled in terms of clause 17.9 of the GCC. Thus the Petitioner had the benefit of choosing its nominee from a broad based list of 14 arbitrators. Pursuant thereto, the arbitral tribunal was constituted in terms of Clause 17.9 of the GCC; consequently, the present petition is highly belated and suffers from delay and laches. The method of maintaining a broad based panel of arbitrators and both parties choosing one arbitrator each and they in turn appointing the presiding arbitrator is not only fair and reasonable, but has also been approved by the Apex Court in several decisions. (v) It is contended that Section 13 of the Arbitration and Conciliation Act, 1996 clearly provides the procedure for challenging the appointment of an arbitrator; as per sub-section (2) of Section 13, a party intending to challenge an arbitrator is required to send a written statement of reasons for the challenge to the arbitral tribunal within 15 days from the date of constitution of the arbitral tribunal or upon becoming aware of any circumstances that give rise to justifiable doubts about his independence or impartiality. (vi) It is contended the Petitioner has not disclosed as to when it came to know that there are justifiable doubts about the independence or impartibility of Mr. A.P. Joshi, on account of the alleged void or voidable procedure followed in the constitution of Arbitral Tribunal pertaining to this case; Petitioner is not casting any aspiration on the integrity of any of the persons in the panel; the includes an arbitrator chosen by the petitioner also. The Petitioner has evasively stated that it allegedly became aware during December 2019 that Mr. A.P. Joshi was the former Managing Director of BMRCL. The Petitioner has categorically stated that it is not casting aspersions on the integrity of any persons in the panel. The Petitioner has evasively stated that it allegedly became aware during December 2019 that Mr. A.P. Joshi was the former Managing Director of BMRCL. The Petitioner has categorically stated that it is not casting aspersions on the integrity of any persons in the panel. Therefore, it is clear that the Petitioner does not have any justifiable doubts about the independence or impartiality of any of the arbitrators. When the Petitioner does not doubt the independence or impartibility of the arbitrators, there are no justifiable grounds to seek reconstitution of the arbitral tribunal on the sole ground of application of the principles of Perkins Eastman, particularly when the said judgment has no application to the facts and circumstances in the present case; on the other hand, the Arbitral Tribunal already constituted is strictly incompliance with the procedure agreed between the parties. 2. I have heard Sri. Uday Holla, learned Senior Counsel for Smt. Nalina Mayegowda appearing for the Petitioner and Sri. Aravind Kamath, learned Senior Counsel for Sri. Nikith Bala appearing for respondent. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior Counsel appearing on behalf of the petitioner made the following submissions: (a) The procedure prescribed in Clause 17.9 of the GCC gives complete autonomy and powers to the respondent to choose and curate the panel of arbitrators as well as appoint and nominate the arbitrators; since the respondent itself is ineligible and disqualified to be an arbitrator by virtue of Schedules V and VII of the Act, the entire panel of arbitrators chosen and curated by the respondent would also incur disqualification and ineligibility; consequently, the said portion of Clause 17.9 of the GCC which provides for the procedure for appointment of arbitrators from only out of the panel chosen and curated exclusively by the respondent is illegal, invalid, null, void, inoperative and not capable of being enforced by the respondent and the arbitrators are to be appointed from outside the said panel. (b) Since the very legality and validity of the said portion of Clause 17.9 of the GCC which prescribes the procedure for appointment of arbitrators has been challenged and assailed by the petitioner, the present petition is maintainable and the contentions of the respondent in this regard are liable to be rejected. (b) Since the very legality and validity of the said portion of Clause 17.9 of the GCC which prescribes the procedure for appointment of arbitrators has been challenged and assailed by the petitioner, the present petition is maintainable and the contentions of the respondent in this regard are liable to be rejected. (c) Since the mandatory ingredients of the proviso to Section 12(5) of the Act have not been fulfilled by the parties in the facts of the instant case, no waiver, acquiescence or estoppel can be attributed to the petitioner in order to come to the conclusion that the petitioner is not entitled to seek any relief in the present petition. (d) The 3 arbitrators who have entered upon reference in the instant case as well as all other empanelled arbitrators are ineligible and disqualified under Schedule V and/or Schedule VII of the Act and consequently, none of the empanelled arbitrators are eligible and qualified to resolve the disputes between the petitioner and respondent which are to be necessarily resolved by appointing arbitrators from outside the said panel. (e) The panel of arbitrators chosen and curated by the respondent is not a broad based panel consisting of qualified professionals from across several fields as required in law and consequently, appointing arbitrators from the said panel is illegal and deserves to be set aside. In support of his contentions, learned Senior Counsel placed reliance upon the following decisions: (i) TRF Limited vs. Energo Engineering Projects Ltd. (2017) 8 SCC 377 (ii) Perkins Eastman Architects DPC vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 (iii) Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd. (2017) 4 SCC 665 (iv) Union of India vs. Parmar Construction Company, (2019) 15 SCC 682 (v) Bharat Broadband Network Ltd. vs. United Telecoms Ltd. (2019) 15 SCC 755 (vi) Afcons Infrastructure Pvt. Ltd. vs. Rail Vikas Nigam Ltd. 2017 SCC Online Del. 8675 (vii) Simplex Infrastructure Ltd. vs. Rail Vikas Nigam Ltd. 2018 SCC Online Del. 13122 (viii) SMS Ltd vs. Rail Vikas Nigam Limited, 2020 SCC Online Del. 77 (ix) L&T vs. Rail Vikas Nigam Ltd. 2018 SCC Online Del. 9176 (x) NCCL-Premco (JV) vs. Rail Vikas Nigam Limited, 2018 SCC Online Del. 11926 (xi) BVSR-KVR (JV) vs. Rail Vikas Nigam Ltd. 2020 SCC Online Del. 13122 (viii) SMS Ltd vs. Rail Vikas Nigam Limited, 2020 SCC Online Del. 77 (ix) L&T vs. Rail Vikas Nigam Ltd. 2018 SCC Online Del. 9176 (x) NCCL-Premco (JV) vs. Rail Vikas Nigam Limited, 2018 SCC Online Del. 11926 (xi) BVSR-KVR (JV) vs. Rail Vikas Nigam Ltd. 2020 SCC Online Del. 456 (xii) Law Commission of India Report No. 246 “Amendments to the Arbitration and Conciliation Act, 1996” August, 2014 (xiii) M/s JV Engineering Associate vs. General Manger, Allahabad, O.P. Nos. 446 to 449 of 2019. 4. Per contra, learned Senior Counsel appearing on behalf of the respondent while reiterating the various contentions put forth in the statement of objections and referring to the material on record, made the following submissions: (a) Since the arbitrators have already been appointed in terms of Clause 17.9 of the GCC, the present petition under Section 11(6) of the Act is not maintainable and is liable to be dismissed particularly when Section 11(6) is not attracted to the facts and circumstances of the instant case and the only remedy available to the petitioner is by way of a challenge under Section 13 of the Act. (b) The entire Clause 17.9 of the GCC is perfectly valid and legal and the same is neither illegal nor invalid as sought to be contended by the petitioner who has voluntarily signed the contract and as such, the various contentions of the petitioner in this regard are liable to be rejected. (c) Since the petitioner has voluntarily invoked Clause 17.9 of the GCC and also appointed its nominee arbitrator by following the prescribed procedure, petitioner is estopped from contending that the procedure for appointment of arbitrators contained in Clause 17.9 is illegal and invalid. (d) The panel maintained by the respondent is a broad based panel fully in accordance with law and the decisions of the Apex Court and the question of choosing/appointing an arbitrator from outside the panel does not arise. (e) None of the empanelled arbitrators including the three arbitrators who have entered upon reference in the instant case suffer from any ineligibility or disqualification either under Schedule V or Schedule VII of the Act and consequently, the claim of the petitioner in this regard is liable to be rejected. (e) None of the empanelled arbitrators including the three arbitrators who have entered upon reference in the instant case suffer from any ineligibility or disqualification either under Schedule V or Schedule VII of the Act and consequently, the claim of the petitioner in this regard is liable to be rejected. In support of his contentions, learned Senior Counsel placed reliance upon the following decisions: (i) Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Ltd. (2017) 4 SCC 665 (ii) Central Organization for Railway Electrification vs. ECI-SPIC-SMO-MCML (JV) A Joint Venture Company, 2019 SCC Online SC 1635 (iii) Government of Haryana PWD Haryana (B&R) Branch vs. G.F. Toll Road Pvt. Ltd. and Others, (2019) 3 SCC 505 (iv) Sri. Krishna Shelters Pvt. Ltd. vs. Union of India, 2020 (1) Kar. L.J. 339 (v) TRF Limited vs. Energo Engineering Projects Ltd. (2017) 8 SCC 377 (vi) Perkins Eastman Architects DPC vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 (vii) HRD Corporation (Marcus Oil and Chemical Division) vs. GAIL India Ltd. (2018) 12 SCC 471 . 5. The following points arise for consideration in the instant case: (i) Whether the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 is maintainable? (ii) Whether the Arbitration Agreement contained in Clause 17.9 of the General Conditions of Contract is severable and if so, whether the portion of the said Clause which prescribes the procedure for appointment of arbitrators can be severed from the remaining part of the said clause and the contract? (iii) Whether that portion of Clause 17.9(a) of the GCC which prescribes the procedure for appointment of arbitrators from out of the panel of arbitrators chosen, appointed, made, maintained and curated by the respondent is valid and binding upon the petitioner? (iv) Whether the present petition is barred by the principles of waiver, acquiescence and estoppel? (v) Whether the 3 arbitrators who have entered upon reference in the instant case are ineligible and disqualified under Schedule V and/or Schedule VII to the Arbitration and Conciliation Act, 1996? Re: Point No. 1: (i) The first question that arises for consideration is whether the present petition seeking appointment of new/substitute arbitrators is maintainable in view of the fact that an arbitral tribunal comprising of 3 arbitrators has already been constituted in terms of Clause 17.9 of the GCC. Re: Point No. 1: (i) The first question that arises for consideration is whether the present petition seeking appointment of new/substitute arbitrators is maintainable in view of the fact that an arbitral tribunal comprising of 3 arbitrators has already been constituted in terms of Clause 17.9 of the GCC. In this context, it is relevant to state that in addition to seeking appointment of arbitrators from outside the panel of empanelled arbitrators in the panel chosen, curated and maintained exclusively by the respondent, petitioner has also sought for annulment of that portion of Clause 17.9 of the GCC which prescribes the procedure for appointment of arbitrators; as such, having regard to the reliefs sought for in the present petition, it cannot be said that the petition is not maintainable. Further, this precise question with regard to maintainability of a petition under Section 11(6) of the Act challenging the validity of the appointment of an arbitrator after such appointment had already been made came up for consideration before the Apex Court in the case of Walter Bau Ag vs. Municipal Corporation of Greater Mumbai, (2015) 3 SCC 800 where it was held as under: “ 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non-est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law.” The said view was reiterated by the Apex Court in its subsequent decision in the case of TRF Ltd. vs. Energo Engineering Products Ltd. (2017) 8 SCC 377 wherein the Apex Court held as under: “31. The purpose of referring to the aforesaid judgments is that courts in certain circumstances have exercised the jurisdiction to nullify the appointments made by the authorities as there has been failure of procedure or ex facie contravention of the inherent facet of the arbitration clause. Submission of the learned counsel for the respondent is that the authority of the arbitrator can be raised before the learned Arbitrator and for the said purpose, as stated hereinbefore, he has placed heavy reliance upon Antrix Corporation Limited (supra). Submission of the learned counsel for the respondent is that the authority of the arbitrator can be raised before the learned Arbitrator and for the said purpose, as stated hereinbefore, he has placed heavy reliance upon Antrix Corporation Limited (supra). In the said case, the two-Judge Bench referred to Article 20 of the agreement which specifically dealt with arbitration and provided that in the event any dispute or difference arises between the parties as to any clause or provision of the agreement, or as to the interpretation thereof, or as to any account or valuation, or as to rights and liabilities, acts, omissions of any party, such disputes would be referred to the senior management of both the parties to resolve the same within three weeks, failing which the matter would be referred to an arbitral tribunal comprising of three arbitrators and the seat of the arbitration would be New Delhi and further that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce (ICC) or UNCITRAL. As the agreement was terminated, the petitioner therein wrote to the respondent company to nominate the senior management to discuss the matter and to try and resolve the dispute between the parties. However, without exhausting the mediation process, as contemplated under Article 20(a) of the agreement, the respondent unilaterally and without prior notice addressed a request for arbitration to the ICC International Court of Arbitration and one Mr. V.V. Veedar was nominated as the arbitrator in accordance with ICC Rules. The correspondence between the parties was not fruitful and the petitioner filed an application under Section 11(4) read with Section 11(10) of the Act for issuance of a direction to the respondent to nominate an arbitrator in accordance with an agreement dated 28.1.2005 and the Rules to adjudicate upon the disputes which had arisen between the parties and to constitute an arbitral tribunal and to proceed with the arbitration. 32. When the matter was listed before the designate of the Chief Justice of this Court, it was referred to a larger Bench and the Division Bench, analyzing the various authorities, came to hold thus: “35.......Once the provisions of the ICC Rules of Arbitration had been invoked by Devas, the proceedings initiated thereunder could not be interfered with in a proceeding under Section 11 of the 1996 Act. The invocation of the ICC Rules would, of course, be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Where the parties had agreed that the procedure for the arbitration would be governed by the ICC Rules, the same would necessarily include the appointment of an arbitral tribunal in terms of the arbitration agreement and the said Rules. Arbitration Petition no. 20 of 2011 under Section 11(6) of the 1996 Act for the appointment of an arbitrator must, therefore, fail and is rejected, but this will not prevent the petitioner from taking recourse to other provisions of the aforesaid Act for appropriate relief.” 33. The said pronouncement, as we find, is factually distinguishable and it cannot be said in absolute terms that the proceeding once initiated could not be interfered with the proceeding under Section 11 of the Act. As we find, the said case pertained to ICC Rules and, in any case, we are disposed to observe that the said case rests upon its own facts. 34. Mr. Sundaram, learned senior counsel for the appellant has also drawn inspiration from the judgment passed by the designated Judge of this Court in Walter Bau AG (supra), where the learned Judge, after referring to Antrix Corporation Limited (supra), distinguished the same and also distinguished the authority and came to hold that: “10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law.....” 35. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore. (ii) So also, in the case of Perkins Eastman Architects DPC and Another vs. HSCC (India) Ltd. (2019) SCC Online SC 1517, after referring to the aforesaid decisions, the Apex Court held as under: “21. The further question that arises is whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law. The further question that arises is whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law. Similar controversy was gone into by a Designated Judge of this Court in Walter Bau AG and the discussion on the point was as under:- “9. While it is correct that in Antrix and Pricol Ltd. it was opined by this Court that after appointment of an arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight of. In Antrix, appointment of the arbitrator, as per the ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Ltd. the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the arbitrator. In the present case, the situation is otherwise. 10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by the second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of arbitrators by ICADR, which the parties had agreed to abide by in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non-est in law. Such an appointment, therefore, will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd18., is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by ICADR. The said appointment, therefore, is clearly invalid in law.” 22. It may be noted here that the aforesaid view of the Designated Judge in Walter Bau AG3 was pressed into service on behalf of the appellant in TRF Limite4 and the opinion expressed by the Designated Judge was found to be in consonance with the binding authorities of this Court. It was observed:- “32. Mr. Sundaram, learned Senior Counsel for the appellant has also drawn inspiration from the judgment passed by the Designated Judge of this Court in Walter Bau AG, where the learned Judge, after referring to Antrix Corporation Ltd. distinguished the same and also distinguished the authority in Pricol Ltd. vs. Johnson Controls Enterprise Ltd. and came to hold that: “10. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law.....” 33. We may immediately state that the opinion expressed in the aforesaid case is in consonance with the binding authorities we have referred to hereinbefore.” 23. In TRF Limited, the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. In TRF Limited, the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal there from on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for Arbitration Application No. 32 of 2019 fresh consideration as is discernible from Para 55 of the Judgment. In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants.” (iii) In the instant case, it is the specific contention of the petitioner that the aforesaid portion of Clause 17.9 prescribing the procedure for appointment of arbitrators is illegal and invalid; it is further contended that the very appointment of arbitrators in terms of the said illegal and invalid portion of Clause 17.9 is also illegal and invalid; consequently, in the light of the decisions of the Apex Court supra, I am of the considered opinion that in the facts and circumstances of the instant case, since the legality and validity of the very appointment process as well as the very appointment of arbitrators itself has been specifically assailed and called in question in the present petition, merely because the arbitrators have already been appointed and entered upon reference or that a challenge procedure under Section 13 of the Act is available to the petitioner, it cannot be said that this Court is denuded of its jurisdiction and powers under Section 11(6) of the Act or that this petition is not maintainable as contended by the respondent. Under these circumstances, I am of the view that the present petition under Section 11(6) of the Act seeking nullification of a portion of the arbitration agreement contained in Clause 17.9 of the GCC prescribing the procedure for appointment of arbitrators and for appointment of arbitrators from outside the panel maintained by the respondent is maintainable. Point No. 1 is answered accordingly. Point No. 1 is answered accordingly. Re: Point No. 2: (i) A perusal of the arbitration agreement contained in Clause 17.9 of the GCC (supra) will indicate that it not only provides for resolution of disputes by reference to arbitration, it also prescribes the procedure for appointment of arbitrators. Whilst the petitioner has not called in question that portion of the clause by which parties have agreed to get their disputes resolved by reference to arbitration, the legality and validity of the other portion of the clause which prescribes the procedure for appointment of arbitrators is the subject matter of challenge in the present petition. In this context, it is relevant to state that the question that arises for consideration is whether the said portion of Clause 17.9 of the GCC prescribing the procedure for appointment of arbitrators is severable from the remaining portion of Clause 17.9 of the GCC. Before adverting to the legal position in this regard, it is necessary to refer to the ‘severability clause’ contained in Clause 1.12 of the GCC which reads as under: “Severability - 1.12 - If any clause, provision, section or part of the Contract is ruled invalid by a court of competent jurisdiction , then the parties shall; (a) promptly meet and negotiate a substitute for such clause, provision, section or part, which shall, to the greatest extent legally permissible, effect he original intent of the parties and (b) if necessary or desirable, apply to the Court which declared such invalidity for a judicial construction of the invalidated portion to guide the negatiations. The invalidity or enforceability or any such clause, provision, section or part shall affect the validity or unenforceability of the balance of the Contract, which shall be construed and enforced as if the Contract did not contain such invalid of unenforceable clause, provision, section or part.” (ii) A plain reading of the aforesaid severability clause clearly indicates that both parties had agreed that a portion/part of the contract is severable/separable from the rest/remaining portions of the contract. It is well settled that a Severability Clause is based on the ‘Doctrine of Severability’ or ‘Doctrine of Separability’ according to which, in the event any provision of a contract is rendered illegal or void and therefore not enforceable, the remaining provisions shall be severed and enforced independent of the unenforceable provision provided such severance does not adversely affect the effectuation of the intention of parties to such contract. The term ‘Severability Clause’ has been defined under Black’s Law Dictionary to mean “a provision that keeps the remaining provisions of a contract or statute in force if any portion of that contract or statute is judicially declared void, unenforceable, or unconstitutional.” The Severability Clause finds its basis from the Blue-Pencil Doctrine or Blue-Pencil Test, which means to delete the invalid (unenforceable) words of a part of a contractual provision to keep the other parts of such provisions validated and thus enforceable. Consequently, the valid part of a provision is enforced without the need to invalidate the complete provision solely owing to a certain invalid part. The term ‘blue-pencil’ popularly means to censor or to make cuts such as in a manuscript, film or other works. ‘Blue-Pencil Test’ has been defined under the Black’s Law Dictionary to mean a judicial standard for deciding whether to invalidate the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them as opposed to changing, adding or rearranging words. The rationale behind the application of the Doctrine of Severability or Blue-Pencil Test is to check whether a contractual provision can be severed into several parts with independent enforceability and implication of each severed part. The severed parts are saved for its validity and enforceability, and the parts that are illegal and void, and thus unenforceable are nullified, while others are enforced. Consequently, rather than invalidating the complete contract, only the invalid provisions are nullified and not enforced. (iii) While dealing with the aforesaid ‘Doctrine of Severability’ or ‘Blue-Pencil Test’ in relation to an arbitration agreement, in the case of Shin Satellite Public Co. Ltd. vs. M/s Jain Studios Limited, (2006) 2 SCC 628 , the Apex Court held as under: “23. Consequently, rather than invalidating the complete contract, only the invalid provisions are nullified and not enforced. (iii) While dealing with the aforesaid ‘Doctrine of Severability’ or ‘Blue-Pencil Test’ in relation to an arbitration agreement, in the case of Shin Satellite Public Co. Ltd. vs. M/s Jain Studios Limited, (2006) 2 SCC 628 , the Apex Court held as under: “23. ARBITRATION Any dispute arising from the interpretation or from any matter relating to the performance of this Agreement or relating to any right or obligation herein contained which cannot be resolved by the parties shall be referred to and finally resolved by arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL). The arbitration shall be held in New Delhi and shall be in the English language. The arbitrator's determination shall be final and binding between the parties and the parties waive all rights of appeal or objection in any jurisdiction. The costs of the arbitration shall be shared by the parties equally.” Clause 20 is another relevant clause providing severability and reads thus: “20. SEVERABILITY - If any provision of this agreement is held invalid, illegal or unenforceable for any reason, including by judgment of, or interpretation of relevant law, by any Court of competent jurisdiction, the continuation in full force and effect of the remainder of them shall not be prejudiced.” ........In Halsbury's Laws of England (Fourth Edition); Volume 9; Para 430; p. 297, it has been stated: “430. Severance of illegal and void provisions. A contract will rarely be totally illegal or void and certain parts of it may be entirely lawful in themselves. The question therefore arises whether the illegal or void parts may be separated or “severed” from the contract and the rest of the contract enforced without them. Nearly all the cases arise in the context of restraint of trade, but the following principles are applicable to contracts in general. First, as a general rule, severance is probably not possible where the objectionable parts of the contract involve illegality and not mere void promises. Nearly all the cases arise in the context of restraint of trade, but the following principles are applicable to contracts in general. First, as a general rule, severance is probably not possible where the objectionable parts of the contract involve illegality and not mere void promises. In one type of case, however, the courts have adopted what amounts almost to a principle of severance by holding that if a statute allows works to be done up to a financial limit without a licence but requires a licence above that limit, then, where works are done under a contract which does not specify an amount but which in the event exceeds the financial limit permitted without licence, the cost of the works up to that limit is recoverable. Secondly, where severance is allowed, it must be possible simply to strike out the offending parts but the court will not rewrite or rearrange the contract. Thirdly, even if the promises can be struck out as afore-mentioned, the court will not do this if to do so would alter entirely the scope and intention of the agreement. Fourthly, the contract, shorn of the offending parts, must retain the characteristics of a valid contract, so that if severance will remove the whole or main consideration given by one party the contract becomes unenforceable. Otherwise, the offending promise simply drops out and the other parts of the contract are enforceable. Reference may be made to Chitty on Contracts (29th Edition); Volume I; pp. 1048-1049: “16-188 Introductory - Where all the terms of a contract are illegal or against public policy or where the whole contract is prohibited by statute, clearly no action can be brought by the guilty party on the contract; but sometimes, although parts of a contract are unenforceable for such reasons, other parts, were they to stand alone, would be unobjectionable. The question then arises whether the unobjectionable may be enforced and the objectionable disregarded or “severed.” The same question arises in relation to bonds where the condition is partly against the law. 16-189 Partial statutory invalidity - It was laid down in some of the older cases that there is a distinction between a deed or condition which is void in part by statute and one which is void in part at common law. 16-189 Partial statutory invalidity - It was laid down in some of the older cases that there is a distinction between a deed or condition which is void in part by statute and one which is void in part at common law. This distinction must now be understood to apply only to cases where the statute enacts that an agreement or deed made in violation of its provisions shall be wholly void. Unless that is so, then provided the good part is separable from and not dependent on the bad, that part only will be void which contravenes the provisions of the statute. The general rule is that “where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but, where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good.” Thus, a covenant in a lease that the tenant should pay “all parliamentary taxes,” only included such as he might lawfully pay, and a separate covenant to pay the landlord's property tax, which it was illegal for a tenant to contract to pay, although void, did not affect the validity of the instrument. In some situations where there is a statutory requirement to obtain a licence for work above a stipulated financial limit but up to that limit no licence is required, the courts will enforce a contract up to that limit. There is some doubt whether this applies to a lump sum contract “for a single and indivisible work.” Even in this situation if the cost element can be divided into its legal and illegal components, the courts will enforce the former but not the latter. It is no doubt true that a court of law will read the agreement as it is and cannot rewrite nor create a new one. It is also true that the contract must be read as a whole and it is not open to dissect it by taking out a part treating it to be contrary to law and by ordering enforcement of the rest if otherwise it is not permissible. But it is well-settled that if the contract is in several parts, some of which are legal and enforceable and some are unenforceable, lawful parts can be enforced provided they are severable. But it is well-settled that if the contract is in several parts, some of which are legal and enforceable and some are unenforceable, lawful parts can be enforced provided they are severable. The learned counsel for the petitioner, in my opinion, rightly submitted that the court must consider the question keeping in view settled legal position and record a finding whether or not the agreement is severable. If the court holds the agreement severable, it should implement and enforce that part which is legal, valid and in consonance of law. In several cases, courts have held that partial invalidity in contract will not ipso facto make the whole contract void or unenforceable. Wherever a contract contains legal as well as illegal parts and objectionable parts can be severed, effect has been given to legal and valid parts striking out the offending parts. In Goldsoll vs. Goldman, (1914) 2 Ch. 603, the defendant was a dealer........When the covenant was sought to be enforced, it was contended that the same was in restrain of a trade and could not be enforced. It was, however, held that the covenant was unreasonable and unenforceable insofar as it extended to ‘real’ jewellery and also to competition outside the United Kingdom. But it was valid, reasonable and enforceable with regard to rest, namely, dealing in imitation jewellery and in United Kingdom. According to the Court, the words “real or” and the listed places outside the United Kingdom could be severed leaving only reasonable covenant which was enforceable. In Attwood vs. Lamont, (1920) 2 KB 146, the plaintiff.....When the plaintiff brought an action, it was contended by the defendant that the agreement was illegal and could not be enforced. The Court, however, held that various parts of the contract were severable and valid part thereof could be enforced. Upholding the argument of the plaintiff and granting relief in his favour, the Court observed that the Courts would sever in a proper case, where the severance can be made by using a blue pencil. But it could be done only in those cases where the part so enforceable is clearly severable and not where it could not be severed. By such process, main purport and substance of the clause cannot be ignored or overlooked......There it was observed that if the covenant is severable, it could be implemented by applying the ‘blue pencil’ test. But it could be done only in those cases where the part so enforceable is clearly severable and not where it could not be severed. By such process, main purport and substance of the clause cannot be ignored or overlooked......There it was observed that if the covenant is severable, it could be implemented by applying the ‘blue pencil’ test. The legal position in India is not different. In Coringa Oil Co. vs. Koegler, ILR (1876) 1 Cal. 466, a clause in the agreement stated that all disputes be referred to arbitrator of two competent London Brokers and their decision would be 'final'. Dealing with the question of legality of such clause, the Court held that the contract could be enforced by excluding the part as regards challenge to such award. It would not affect the jurisdiction of the court, and to that extent, the clause is not enforceable. The other stipulation, however, would not become void or inoperative. In Babasaheb Rahimsaheb vs. Rajaram Raghunath Alpe, AIR 1931 Bom. 264, there were several clauses in the contract. When the question as to enforceability came up before the court, it was held that if different clauses in an agreement are separable, the fact that one clause is void does not necessarily cause the other clauses to fail. In Union Construction Co. (P) Ltd. vs. Chief Engineer, Eastern Command, Lucknow and Another, AIR 1960 All. 72, a similar contention was raised that the Arbitration Agreement giving finality and conclusiveness was illegal and unenforceable as it was hit by Section 28 of the Contract Act. Clause 68 of the Arbitration Agreement, which was similar to the case on hand, read thus......The Court held that the sub-clause making the award ‘final and conclusive’ was clearly separable from the main clause which made reference to an arbitrator imperative. “The existence of the sub-clause or the fact that the sub- clause appears to be void does not in any way affect the right of the parties to have recourse to arbitration and does not make a reference to an arbitrator any the less an alternative remedy.” In the present case, clause 23 relates to arbitration. It is in various parts. The first part mandates that, if there is a dispute between the parties, it shall be referred to and finally resolved by arbitration. It clarifies that the rules of UNCITRAL would apply to such arbitration. It is in various parts. The first part mandates that, if there is a dispute between the parties, it shall be referred to and finally resolved by arbitration. It clarifies that the rules of UNCITRAL would apply to such arbitration. It then directs that the arbitration shall be held in Delhi and will be in English language. It stipulates that the costs of arbitration shall be shared by the parties equally. The offending and objectionable part, no doubt, expressly makes the arbitrator's determination “final and binding between the parties” and declares that the parties have waived the rights of appeal or objection “in any jurisdiction.” The said objectionable part, in my opinion, however, is clearly severable as it is independent of the dispute being referred to and resolved by an arbitrator. Hence, even in the absence of any other clause, the part as to referring the dispute to arbitrator can be given effect to and enforced. By implementing that part, it cannot be said that the Court is doing something which is not contemplated by the parties or by ‘interpretative process’ the Court is re-writing the contract which is in the nature of novatio. The intention of the parties is explicitly clear and they have agreed that the dispute, if any, would be referred to an arbitrator. To that extent, therefore, the agreement is legal, lawful and the offending part as to the finality and restraint in approaching a Court of law can be separated and severed by using a 'blue pencil'. The proper test for deciding validity or otherwise of an agreement or order is substantial severability and not textual divisibility. It is the duty of the court to severe and separate trivial or technical part by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful and otherwise enforceable. In such cases, the Court must consider the question whether the parties could have agreed on the valid terms of the agreement had they known that the other terms were invalid or unlawful. If the answer to the said question is in the affirmative, the doctrine of severability would apply and the valid terms of the agreement could be enforced, ignoring invalid terms. If the answer to the said question is in the affirmative, the doctrine of severability would apply and the valid terms of the agreement could be enforced, ignoring invalid terms. To hold otherwise would be “to expose the covenanter to the almost inevitable risk of litigation which in nine cases out of ten he is very ill able to afford, should he venture to act upon his own opinion as to how far the restraint upon him would be held by the court to be reasonable, while it may give the covenantee the full benefit of unreasonable provisions if the covenanter is unable to face litigation.” The agreement in the instant case can be enforced on an additional ground as well. As already noted, clause 20 (Severability) expressly states that if any provision of the agreement is held invalid, illegal or unenforceable, it would not prejudice the remainder. In my view, clause 20 makes the matter free from doubt. The intention of the parties is abundantly clear and even if a part of the agreement is held unlawful, the lawful parts must be enforced. Reference of a dispute to an arbitrator, by no means can be declared illegal or unlawful. To that extent, therefore, no objection can be raised by the respondent against the agreement. In Babasaheb Rahimsaheb vs. Rajaram Raghunath Alpe, AIR 1931 Bom. 264, there were several clauses in the contract.......The Court observed: “In an agreement, if different clauses are separable, the fact that one clause is void does not necessarily cause the other clauses to fail. In the present case, clause 23 relates to arbitration, mainly it is in four parts. The first part states that, if there is dispute between the parties, it shall be referred to and finally resolved by arbitration. It also says that the rules of UNCITRAL would apply to such arbitration. It then states that the arbitration shall be held in Delhi and will be in English language. It also states that the costs of arbitration shall be shared by the parties equally. The disputed part declares the arbitrator's determination as “final and binding between the parties” and also that parties have waived the rights of appeal or objection in any jurisdiction. The said objectionable part, in my opinion, is clearly severable as it is independent of matter being raised to and decided by an arbitrator. The disputed part declares the arbitrator's determination as “final and binding between the parties” and also that parties have waived the rights of appeal or objection in any jurisdiction. The said objectionable part, in my opinion, is clearly severable as it is independent of matter being raised to and decided by an arbitrator. Therefore, even in the absence of any other clause, the said part can be given effect to and enforced. By implementing the said part, it cannot be said that the Court is doing something which is not contemplated by the parties or by interpretative process, the Court is re-writing a contract which is in the form of novatio. The intention of the parties is abundantly clear that in case of dispute, the matter must be referred to arbitrator. To that extent, therefore, the agreement is legal, valid, in accordance with law and enforceable. In the instant case, such an agreement can be enforced even on an additional ground and that is clause 20 (severability). The said clause expressly states that if any provision of the agreement is held invalid, illegal or unenforceable, it would not prejudice the remainder. In my judgment, therefore, the intense of the parties is abundantly clear that in case of dispute the matter was to be referred to arbitrator and to that extent, no objection can be raised by the respondent. (iv) Coming to the facts of the instant case, a perusal of Clause 17.9 of the GCC, which provides for dispute resolution by reference to arbitration has several distinct, independent and separate parts which are separable and severable from one another; the procedure for appointment of arbitrators from out of a panel chosen, made, maintained and curated by the respondent is specifically contained in Clause 17.9(a) which reads as under: “17.9(a) - For this purpose the Employer shall maintain a panel of Arbitrators with the requisite qualifications and professional experience relevant to which the Claims relate. In case of a Sole Arbitrator the Panel will be of three Arbitrators out of which the contractor will chose one. In case, three arbitrators are to be appointed, the Employer will make out a panel of five. In case of a Sole Arbitrator the Panel will be of three Arbitrators out of which the contractor will chose one. In case, three arbitrators are to be appointed, the Employer will make out a panel of five. The Contractor and the Employer will choose one Arbitrator each from the above and the two so chosen will choose one Arbitrator each from the above and the two so chosen will choose the third Arbitrator from the above panel only who will act as the 'Presiding arbitrator' of the Arbitration Panel. If in a dispute, the Contractor fails to choose the Arbitrator within thirty (30) days after the Employer has nominated the Panel, the employer may apply to the Indian Council of Arbitration, New Delhi, to nominate an Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. If, in a dispute, the two chosen Arbitrators tail to appoint third Arbitrator within thirty (30) days after they have been appointed, the Employer may apply to the Indian Council of Arbitration, New Delhi, to nominate the third Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute.” (v) A plain reading of the said portion of Clause 17.9(a) will indicate that the said portion/part of the contract is clearly separable and severable from the remaining portion/part of Clause 17.9 and the contract and even if the same is held to be invalid, illegal or unenforceable, it would not prejudice the remainder and the rest of the clause 17.9 as well as the contract are valid and enforceable. The said Clause 17.9(a) also indicates that it is confined only to the procedure for appointment of arbitrators and merely because the said procedure does not exist in the arbitration clause by virtue of it being deleted/struck off by a ‘blue pencil’ the remaining portion of the arbitration clause does not become invalid or unenforceable. The said Clause 17.9(a) also indicates that it is confined only to the procedure for appointment of arbitrators and merely because the said procedure does not exist in the arbitration clause by virtue of it being deleted/struck off by a ‘blue pencil’ the remaining portion of the arbitration clause does not become invalid or unenforceable. In this context, it cannot be gainsaid that in order to constitute a valid arbitration clause, it is neither necessary nor essential to have a clause/covenant prescribing the procedure for appointment of arbitrators; this position is statutorily recognized under Section 8 as well as Sections 11(2), 11(3) and 11(5) of the Act; it follows there from that in an arbitration agreement/clause, a portion/part prescribing the procedure for appointment of arbitrators can be severed and separated from the rest/remaining part/portion of the clause and the contract which are valid, operative and enforceable. Under these circumstances, applying the Doctrine of Severability or Blue-Pencil Test to the facts of the instant case, I am of the considered opinion that the said portion of Clause 17.9(a) which prescribes the procedure for appointment of arbitrators is clearly separable and severable from the remaining portion/part of Clause 17.9 as well as the contract. Point No. 2 is answered accordingly. Re: Point No. 3: (i) Having come to the conclusion that the aforesaid portion/part of Clause 17.9(a) which prescribes the procedure for appointment of arbitrators is severable and separable from the remaining portion/part of Clause 17.9 and the contract, the next question that arises for consideration is whether the said severed/separated portion is illegal, invalid, void, inoperative and unenforceable as contended by the petitioner. Clause 17.9 envisages a specific procedure for appointment of arbitrators and contemplates 2 situations; claims up to 15 million shall be referred to a sole arbitrator while claims in excess of 15 million shall be referred to a 3 member tribunal; for both the aforesaid purposes, exclusive power and authority is given to the respondent to make, maintain and curate a panel of arbitrators; in fact, the complete autonomy vested in the respondent in appointing/nominating arbitrators as provided in clause 17.9(a) can be discerned from the following: (a) the entire panel of arbitrators shall be made, chosen, maintained and curated by respondent-BMRCL. (b) respondent alone has complete freedom and autonomy to choose the names as well as number of arbitrators in the panel. (b) respondent alone has complete freedom and autonomy to choose the names as well as number of arbitrators in the panel. (c) respondent alone has the option to add/delete the names of arbitrators. (d) in an arbitration with a 3 member arbitral tribunal (like in the instant case), out of the entire panel, respondent alone has the exclusive option/freedom to choose only 5 arbitrators and forward only 5 names to the petitioner. (e) petitioner has no choice in making, choosing, maintaining or curating the panel or the persons in the panel or the number of empanelled arbitrators. (f) petitioner has no option to add/delete the names of empanelled arbitrators. (g) petitioner also does not have the option to even give suggestions to the respondent with regard to the panel of arbitrators. (h) the only option/choice available to the petitioner is to choose an arbitrator only out of the 5 names sent by the respondent out of the entire panel. (i) in an arbitration with a 3 member arbitral tribunal(like in the instant case), after petitioner and respondent appoint their respective nominee arbitrators, the 2 nominee arbitrators shall appoint the 3rd-presiding arbitrator only from the aforesaid panel of arbitrators maintained by the respondent. (j) in an arbitration with a sole arbitrator, if petitioner fails to choose the arbitrator within 30 days after the respondent has nominated the panel, only the respondent(and not the petitioner) is empowered and authorized to apply to the Indian Council of Arbitration, New Delhi to nominate an arbitrator from the same panel maintained by the respondent. (k) in an arbitration with a 3 member arbitral tribunal(like in the instant case), after petitioner and respondent appoint their respective nominee arbitrators, if the 2 nominee arbitrators do not appoint the 3rd-presdiding arbitrator within 30 days after they have been appointed, only the respondent(and not the petitioner) is empowered and authorized to apply to the Indian Council of Arbitration, New Delhi to nominate the 3rd- presiding arbitrator from the same panel maintained by the respondent. (ii) A plain reading of the aforesaid covenants in clause 17.9(a) of the GCC will clearly indicate that wide, extensive and exclusive powers and authority are given to only the respondent to not only make, maintain and curate a panel of arbitrators, but the power and authority to appoint/nominate arbitrators also vests completely and exclusively in the respondent and the petitioner has very little say in the matter of appointment of arbitrators; in other words, for all practical purposes, it is the respondent alone that is the appointing authority that appoints arbitrators in terms of clause 17.9 of the GCC. (iii) There is no gainsaying the fact that though the respondent-BMRCL is the appointing authority that appoints arbitrators in terms of clause 17.9 of the GCC, the respondent- BMRCL and its officials, employees etc. are clearly ineligible and disqualified under Schedule V and Schedule VII to the Act to be appointed as an arbitrator in the instant case. Under these circumstances, the next question that arises for consideration is whether clause 17.9 which empowers and authorizes BMRCL to appoint an arbitrator is legal and valid despite the BMRCL and its employees, officials etc. themselves being ineligible and disqualified to be appointed as an arbitrator; to put it differently, whether BMRCL and its officials, employees etc., who are themselves ineligible and disqualified to be appointed as arbitrators are entitled to appoint or nominate arbitrators in terms of clause 17.9 of the GCC. Under identical circumstances, in the case of TRF Ltd. (supra), the Apex Court held as under: “52. Regard being had to the same, we have to compare and analyse the arbitration clause in the present case. Clause (c), which we have reproduced earlier, states that all disputes which cannot be settled by mutual negotiation shall be referred to and determined by arbitration as per the Act, as amended. Clause (c) is independent of Clause (d). Clause (d) provides that unless otherwise provided, any dispute or difference between the parties in connection with the agreement shall be referred to the sole arbitration of the Managing Director or his nominee. 53. First, we shall deal with Clause (d). There is no quarrel that by virtue of Section 12(5) of the Act, if any person who falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as the arbitrator. 53. First, we shall deal with Clause (d). There is no quarrel that by virtue of Section 12(5) of the Act, if any person who falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as the arbitrator. There is no doubt and cannot be, for the language employed in the Seventh Schedule, the Managing Director of the Corporation has become ineligible by operation of law. It is the stand of the learned senior counsel for the appellant that once the Managing Director becomes ineligible, he also becomes ineligible to nominate. Refuting the said stand, it is canvassed by the learned senior counsel for the respondent that the ineligibility cannot extend to a nominee if he is not from the Corporation and more so when there is apposite and requisite disclosure. We think it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance. We are singularly concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator. At the cost of repetition, we may state that when there are two parties, one may nominate an arbitrator and the other may appoint another. That is altogether a different situation. If there is a clause requiring the parties to nominate their respective arbitrators, their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the “named sole arbitrator” and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa and Others vs. Commissioner of Land Records and Settlement, Cuttack and Others. In the said case, the question arose can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held: “25. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa and Others vs. Commissioner of Land Records and Settlement, Cuttack and Others. In the said case, the question arose can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held: “25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand vs. State of Punjab. In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an “officer” an order passed by such an officer was an order passed by the State Government itself 20 (1998) 7 SCC 162 and “not an order passed by any officer under this Act” within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate.” 54. Be it noted in the said case, reference was made to Behari Kunj Sahkari Awas Samiti vs. State of U.P. (1997) 7 SCC 37 , which followed the decision in Roop Chand vs. State of Punjab, AIR 1963 SC 1503 . It is seemly to note here that said principle has been followed in Chairman, Indore Vikas Pradhikaran (supra). 55. Mr. Sundaram, has strongly relied on Firm of Pratapchand Nopaji (supra). It is seemly to note here that said principle has been followed in Chairman, Indore Vikas Pradhikaran (supra). 55. Mr. Sundaram, has strongly relied on Firm of Pratapchand Nopaji (supra). In the said case, the three-Judge Bench applied the maxim “Qui facit per alium facit per se.” We may profitably reproduce the passage: “9......The principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim: “Qui facit per alium facit per se” (What one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the “pucca adatia” or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only.” 56. The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee. 57. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so. (iv) So also, in the case of Perkins Eastman Architects DPC and Another vs. HSCC (India) Ltd (2019) SCC Online SC 1517, after referring to the aforesaid decisions, the Apex Court held as under:- “11. That takes us to the second issue, namely, whether a case has been made out for exercise of power by the Court for an appointment of an arbitrator. 12. The communication invoking arbitration in terms of Clause 24 was sent by the Applicants on 28.06.2019 and the period within which the respondent was to make the necessary appointment expired on 28.07.2019. The next day was a working day but the appointment was made on Tuesday, the 30th July, 2019. Technically, the appointment was not within the time stipulated but such delay on part of the respondent could not be said to be an infraction of such magnitude that exercise of power by the Court under Section 11 of the Act merely on that ground is called for. 13. However, the point that has been urged, relying upon the decision of this Court in Walter Bau AG and TRF Limited, requires consideration. In the present case Clause 24 empowers the Chairman and Managing Director of the respondent to make the appointment of a sole arbitrator and said Clause also stipulates that no person other than a person appointed by such Chairman and Managing Director of the respondent would act as an arbitrator. In TRF Limited, a Bench of three Judges of this Court, was called upon to consider whether the appointment of an arbitrator made by the Managing Director of the respondent therein was a valid one and whether at that stage an application moved under Section 11(6) of the Act could be entertained by the Court. The relevant Clause, namely, Clause 33 which provided for resolution of disputes in that case was under: “33. The relevant Clause, namely, Clause 33 which provided for resolution of disputes in that case was under: “33. Resolution of dispute/arbitration: (a) In case any disagreement or dispute arises between the buyer and the seller under or in connection with the PO, both shall make every effort to resolve it amicably by direct informal negotiation. (b) If, even after 30 days from the commencement of such informal negotiation, seller and the buyer have not been able to resolve the dispute amicably, either party may require that the dispute be referred for resolution to the formal mechanism of arbitration. (c) All disputes which cannot be settled by mutual negotiation shall be referred to and determined by arbitration as per the Arbitration and Conciliation Act, 1996 as amended. (d) Unless otherwise provided, any dispute or difference between the parties in connection with this agreement shall be referred to sole arbitration of the Managing Director of buyer or his nominee. Venue of arbitration shall be Delhi, and the arbitration shall be conducted in English language. (e) The award of the Tribunal shall be final and binding on both, buyer and seller.” 14. In TRF Limited, the Agreement was entered into before the provisions of the Amending Act (Act No. 3 of 2016) came into force. It was submitted by the appellant that by virtue of the provisions of the Amending Act and insertion of the Fifth and Seventh Schedules in the Act, the Managing Director of the respondent would be a person having direct interest in the dispute and as such could not act as an arbitrator. The extension of the submission was that a person who himself was disqualified and disentitled could also not nominate any other person to act as an arbitrator. The submission countered by the respondent therein was as under:- “7.1. The submission to the effect that since the Managing Director of the respondent has become ineligible to act as an arbitrator subsequent to the amendment in the Act, he could also not have nominated any other person as arbitrator is absolutely unsustainable, for the Fifth and the Seventh Schedules fundamentally guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence and impartiality of the arbitrator. To elaborate, if any person whose relationship with the parties or the counsel or the subject-matter of dispute falls under any of the categories specified in the Seventh Schedule, he is ineligible to be appointed as an arbitrator but not otherwise. The issue was discussed and decided by this Court as under:- 50. First, we shall deal with Clause (d). There is no quarrel that by virtue of Section 12(5) of the Act, if any person who falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as the arbitrator. There is no doubt and cannot be, for the language employed in the Seventh Schedule, the Managing Director of the Corporation has become ineligible by operation of law. It is the stand of the learned Senior Counsel for the appellant that once the Managing Director becomes ineligible, he also becomes ineligible to nominate. Refuting the said stand, it is canvassed by the learned Senior Counsel for the respondent that the ineligibility cannot extend to a nominee if he is not from the Corporation and more so when there is apposite and requisite disclosure. We think it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance. We are singularly concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator. At the cost of repetition, we may state that when there are two parties, one may nominate an arbitrator and the other may appoint another. That is altogether a different situation. If there is a clause requiring the parties to nominate their respective arbitrator, their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the “named sole arbitrator” and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa vs. Commissioner of Land Records and Settlement. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa vs. Commissioner of Land Records and Settlement. In the said case, the question arose, can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held: (SCC p. 173, Para 25) “25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand vs. State of Punjab (supra). In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an “officer”, an order passed by such an officer was an order passed by the State Government itself and “not an order passed by any officer under this Act” within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate.” (Emphasis in original) 52. Mr. Sundaram has strongly relied on Pratapchand Nopaji. In the said case, the three-Judge Bench applied the maxim “qui facit per alium facit per se.” We may profitably reproduce the passage: (SCC p. 214, Para 9) “9........The principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim: “qui facit per alium facit per se” (what one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the “pucca adatia” or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only.” 53. The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to the learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee. 54. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.” 15. It was thus held that as the Managing Director became ineligible by operation of law to act as an arbitrator, he could not nominate another person to act as an arbitrator and that once the identity of the Managing Director as the sole arbitrator was lost, the power to nominate someone else as an arbitrator was also obliterated. It was thus held that as the Managing Director became ineligible by operation of law to act as an arbitrator, he could not nominate another person to act as an arbitrator and that once the identity of the Managing Director as the sole arbitrator was lost, the power to nominate someone else as an arbitrator was also obliterated. The relevant Clause in said case had nominated the Managing Director himself to be the sole arbitrator and also empowered said Managing Director to nominate another person to act Arbitration as an arbitrator. The Managing Director thus had two capacities under said Clause, the first as an arbitrator and the second as an appointing authority. In the present case we are concerned with only one capacity of the Chairman and Managing Director and that is as an appointing authority. We thus have two categories of cases. The first, similar to the one dealt with in TRF Limited where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorised to appoint any other person of his choice or discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited, all cases having clauses similar to that with which we are presently concerned a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator. 16. But, in our view that has to be the logical deduction from TRF Limited. Paragraph 50 of the decision shows that this Court was concerned with the issue “whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an Arbitrator” The ineligibility referred to therein, was as a result of operation of law, in that a person having an interest in the dispute or in the outcome or decision thereof, must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator and that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party. But, in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. But, in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and recognised by the decision of this Court in TRF Limited.” (v) It is true that both the aforesaid decisions of the Apex Court were rendered in the context of a sole arbitrator and the Apex Court has specifically stated that in an arbitration with 3 arbitrators with each party given the right to appoint their respective nominee arbitrators, the said decisions may not apply; it is also true that in the instant case also, the arbitral tribunal consists of 3 arbitrators; it is however relevant to state that though the power/option to appoint a nominee arbitrator appears to have been given to the petitioner also in clause 17.9, the other covenants in the said clause with regard to appointment of arbitrators, in particular the fact that even the petitioner’s nominee arbitrator also has to be chosen from only out of the panel chosen, maintained and curated by the respondent is sufficient to indicate that in reality and for all practical purposes, it is only the respondent which is vested with the power and authority to appoint arbitrators; in other words, a distinction has to be drawn between granting complete authority and power to a party to nominate/appoint its arbitrator and granting limited/restricted power and authority to a party to choose only from a panel chosen, maintained and curated by the respondent; while the former may be permissible in a given set of facts, the latter situation whereby the party is virtually denuded of all his rights to appoint an arbitrator clearly runs counter to the said decisions of the Apex Court and consequently, the panel made by the respondent illegal and invalid. Under these circumstances, the ratio of the decisions of the Apex Court in TRF Ltd’s case and Perkins’ case (supra) are clearly applicable to the facts of the instant case. Under these circumstances, the ratio of the decisions of the Apex Court in TRF Ltd’s case and Perkins’ case (supra) are clearly applicable to the facts of the instant case. (vi) Though reliance is placed by the respondent on the decision of the Apex Court in Central Organisation’s case (supra), the correctness of the said decision has been doubted by a subsequent Bench of the Apex Court in the case of Union of India vs. Tantia Constructions, SLP No. 12670/2020 dated 11.01.2021 in which the Apex Court confirmed the Order of the Kolkata High Court appointing arbitrators from outside the panel maintained by the Railways; as such, no reliance can be placed by the respondent on Central Organisation’s case (supra), in support of its contention. (vii) The aforesaid discussion clearly indicates that since the BMRCL and its officials, employees etc., are themselves incapacitated, ineligible and disqualified to be appointed as arbitrators, the aforesaid portion of Clause No. 17.9(a) which prescribes the procedure for appointment of arbitrators by conferring powers upon the respondent to choose, make, maintain and curate a panel of arbitrators is also clearly illegal, invalid, inoperative and unenforceable and consequently, appointment of arbitrators from out of the panel of arbitrators made and maintained by the respondent is also illegal and invalid and not enforceable against the petitioner; to put is simply, since the Respondent-BMRCL itself is incapacitated, ineligible and disqualified to be an arbitrator, the entire panel of arbitrators chosen, appointed, made, maintained and curated by the respondent is void-ab-initio. Point No. 3 is answered accordingly. Re: Point No. 4: (i) It is the specific contention of the respondent that in the face of the undisputed fact that the petitioner itself had not only sought for reference of the dispute to arbitration, but had also appointed its nominee arbitrator from out of the panel maintained by the respondent without any objection, the claim of the petitioner is barred by the principles of waiver, acquiescence and estoppel. (ii) Per contra, it is contended by the petitioner that since the very legality and validity of the aforesaid portion/part of Clause No. 17.9(a) which prescribes the procedure for appointment of arbitrators is challenged in the present petition in addition to the disqualification/ineligibility incurred by the respondent under Schedule V and Schedule VII in the light of Section 12(5) of the Act which contains a non-obstante clause, the said contention of the respondent is liable to be rejected particularly when the mandatory requirements of the proviso to Section 12(5) had not been fulfilled/satisfied in the instant case. (iii) At the outset, it is significant to note that it is an undisputed fact that subsequent to disputes having arisen between the petitioner and respondent, no express agreement within the meaning of the proviso to Section 12(5) to waive the applicability of the provision has been entered into between the parties. In this context, it is relevant to extract Section 12(5) of the Act of 1996, which reads as under: “12. Grounds for Challenge: 1. xxx xxx xxx 2. xxx xxx xxx 3. xxx xxx xxx 4. xxx xxx xxx 5. Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.” It is also relevant to extract Section 14(1)(a) of the Act of 1996, which reads as under: “14. Failure or impossibility to act: (1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if: (a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay.” (iv) While dealing with Section 12(5) of the Act in TRF Ltd. case (supra), the Apex Court held as under: “12. Sub-Section (5) of Section 12, on which immense stress has been laid by the learned counsel for the appellant, as has been reproduced above, commences with a non-obstante clause. Sub-Section (5) of Section 12, on which immense stress has been laid by the learned counsel for the appellant, as has been reproduced above, commences with a non-obstante clause. It categorically lays down that if a person whose relationship with the parties or the counsel or the subject matter of dispute falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator. There is a qualifier which indicates that parties may, subsequent to the disputes arisen between them, waive the applicability by express agreement in writing. The qualifier finds place in the proviso appended to sub-section (5) of Section 12. On a careful scrutiny of the proviso, it is discernible that there are fundamentally three components, namely, the parties can waive the applicability of the sub-section; the said waiver can only take place subsequent to dispute having arisen between the parties; and such waiver must be by an express agreement in writing.” So also, in its subsequent decision in the case of Bharat Broadband (supra), while dealing with scheme of the Act contained in Sections 12, 13, 14 and 15, the Apex Court held as under: 11. Section 12(5) has been earlier dealt with in three Supreme Court judgments. In Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Ltd. (2017) 4 SCC 665 , this Court went into the recommendations of the aforesaid Law Commission Report, and referred in great detail to the law before the amendment made in Section 12 and then held: “23. It also cannot be denied that the Seventh Schedule is based on IBA guidelines which are clearly regarded as a representation of international based practices and are based on statutes, case law and juristic opinion from a cross-section on jurisdiction. It is so mentioned in the guidelines itself.” xxx xxx xxx “25. Section 12 has been amended with the objective to induce neutrality of arbitrators viz. their independence and impartiality. The amended provision is enacted to identify the “circumstances” which give rise to “justifiable doubts” about the independence or impartiality of the arbitrator. If any of those circumstances as mentioned therein exists, it will give rise to justifiable apprehension of bias. The Fifth Schedule to the Act enumerates the grounds which may give rise to justifiable doubts of this nature. The amended provision is enacted to identify the “circumstances” which give rise to “justifiable doubts” about the independence or impartiality of the arbitrator. If any of those circumstances as mentioned therein exists, it will give rise to justifiable apprehension of bias. The Fifth Schedule to the Act enumerates the grounds which may give rise to justifiable doubts of this nature. Likewise, the Seventh Schedule mentions those circumstances which would attract the provisions of sub- section (5) of Section 12 and nullify any prior agreement to the contrary. In the context of this case, it is relevant to mention that only if an arbitrator is an employee, a consultant, an advisor or has any past or present business relationship with a party, he is rendered ineligible to act as an arbitrator. Likewise, that person is treated as incompetent to perform the role of arbitrator, who is a manager, director or part of the management or has a single controlling influence in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration. Likewise, persons who regularly advised the appointing party or affiliate of the appointing party are incapacitated. A comprehensive list is enumerated in Schedule 5 and Schedule 7 and admittedly the persons empanelled by the respondent are not covered by any of the items in the said list.” 12. In HRD Corporation vs. GAIL (India) Ltd. (2018) 12 SCC 471 , this Court, after setting out the amendments made in Section 12 and the Fifth, Sixth, and Seventh Schedules to the Act, held as follows: “12. After the 2016 Amendment Act, a dichotomy is made by the Act between persons who become “ineligible” to be appointed as arbitrators, and persons about whom justifiable doubts exist as to their independence or impartiality. Since ineligibility goes to the root of the appointment, Section 12(5) read with the Seventh Schedule makes it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes “ineligible” to act as arbitrator. Since ineligibility goes to the root of the appointment, Section 12(5) read with the Seventh Schedule makes it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes “ineligible” to act as arbitrator. Once he becomes ineligible, it is clear that, under Section 14(1) (a), he then becomes de jure unable to perform his functions inasmuch as, in law, he is regarded as “ineligible.” In order to determine whether an arbitrator is de jure unable to perform his functions, it is not necessary to go to the Arbitral Tribunal under Section 13. Since such a person would lack inherent jurisdiction to proceed any further, an application may be filed under Section 14(2) to the Court to decide on the termination of his/her mandate on this ground. As opposed to this, in a challenge where grounds stated in the Fifth Schedule are disclosed, which give rise to justifiable doubts as to the arbitrator’s independence or impartiality, such doubts as to independence or impartiality have to be determined as a matter of fact in the facts of the particular challenge by the Arbitral Tribunal under Section 13. If a challenge is not successful, and the Arbitral Tribunal decides that there are no justifiable doubts as to the independence or impartiality of the arbitrator/arbitrators, the Tribunal must then continue the arbitral proceedings under Section 13(4) and make an award. It is only after such award is made, that the party challenging the arbitrator’s appointment on grounds contained in the Fifth Schedule may make an application for setting aside the arbitral award in accordance with Section 34 on the aforesaid grounds. It is clear, therefore, that any challenge contained in the Fifth Schedule against the appointment of Justice Doabia and Justice Lahoti cannot be gone into at this stage, but will be gone into only after the Arbitral Tribunal has given an award. Therefore, we express no opinion on items contained in the Fifth Schedule under which the appellant may challenge the appointment of either arbitrator. They will be free to do so only after an award is rendered by the Tribunal.” xxx xxx xxx “14. The enumeration of grounds given in the Fifth and Seventh Schedules have been taken from the IBA Guidelines, particularly from the Red and Orange Lists thereof. The aforesaid guidelines consist of three lists. They will be free to do so only after an award is rendered by the Tribunal.” xxx xxx xxx “14. The enumeration of grounds given in the Fifth and Seventh Schedules have been taken from the IBA Guidelines, particularly from the Red and Orange Lists thereof. The aforesaid guidelines consist of three lists. The Red List, consisting of non-waivable and waivable guidelines, covers situations which are “more serious” and “serious” the “more serious” objections being non-waivable. The Orange List, on the other hand, is a list of situations that may give rise to doubts as to the arbitrator’s impartiality or independence, as a consequence of which the arbitrator has a duty to disclose such situations. The Green List is a list of situations where no actual conflict of interest exists from an objective point of view, as a result of which the arbitrator has no duty of disclosure. These Guidelines were first introduced in the year 2004 and have thereafter been amended, after seeing the experience of arbitration worldwide. In Part 1 thereof, general standards regarding impartiality, independence and disclosure are set out.” xxx xxx xxx “17. It will be noticed that Items 1 to 19 of the Fifth Schedule are identical with the aforesaid items in the Seventh Schedule. The only reason that these items also appear in the Fifth Schedule is for purposes of disclosure by the arbitrator, as unless the proposed arbitrator discloses in writing his involvement in terms of Items 1 to 34 of the Fifth Schedule, such disclosure would be lacking, in which case the parties would be put at a disadvantage as such information is often within the personal knowledge of the arbitrator only. It is for this reason that it appears that Items 1 to 19 also appear in the Fifth Schedule.” 13. In TRF Ltd. (supra), this Court referred to Section 12(5) of the Act in the context of appointment of an arbitrator by a Managing Director of a corporation, who became ineligible to act as arbitrator under the Seventh Schedule. This Court held: “50. First, we shall deal with Clause (d). There is no quarrel that by virtue of Section 12(5) of the Act, if any person who falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as the arbitrator. This Court held: “50. First, we shall deal with Clause (d). There is no quarrel that by virtue of Section 12(5) of the Act, if any person who falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as the arbitrator. There is no doubt and cannot be, for the language employed in the Seventh Schedule, the Managing Director of the Corporation has become ineligible by operation of law. It is the stand of the learned Senior Counsel for the appellant that once the Managing Director becomes ineligible, he also becomes ineligible to nominate. Refuting the said stand, it is canvassed by the learned Senior Counsel for the respondent that the ineligibility cannot extend to a nominee if he is not from the Corporation and more so when there is apposite and requisite disclosure. We think it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance. We are singularly concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator. At the cost of repetition, we may state that when there are two parties, one may nominate an arbitrator and the other may appoint another. That is altogether a different situation. If there is a clause requiring the parties to nominate their respective arbitrator, their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the “named sole arbitrator” and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction......” xxx xxx xxx “54. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.” 14. From a conspectus of the above decisions, it is clear that Section 12(1), as substituted by the Arbitration and Conciliation (Amendment) Act, 2015 [“Amendment Act, 2015”] makes it clear that when a person is approached in connection with his possible appointment as an arbitrator, it is his duty to disclose in writing any circumstances which are likely to give rise to justifiable doubts as to his independence or impartiality. The disclosure is to be made in the form specified in the Sixth Schedule, and the grounds stated in the Fifth Schedule are to serve as a guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Once this is done, the appointment of the arbitrator may be challenged on the ground that justifiable doubts have arisen under sub-section (3) of Section 12 subject to the caveat entered by sub-section (4) of Section 12. The challenge procedure is then set out in Section 13, together with the time limit laid down in Section 13(2).What is important to note is that the arbitral tribunal must first decide on the said challenge, and if it is not successful, the tribunal shall continue the proceedings and make an award. The challenge procedure is then set out in Section 13, together with the time limit laid down in Section 13(2).What is important to note is that the arbitral tribunal must first decide on the said challenge, and if it is not successful, the tribunal shall continue the proceedings and make an award. It is only post award that the party challenging the appointment of an arbitrator may make an application for setting aside such an award in accordance with Section 34 of the Act. 15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non-obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be “ineligible” to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an “express agreement in writing.” Obviously, the “express agreement in writing” has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule. 16. The Law Commission Report, which has been extensively referred to in some of our judgments, makes it clear that there are certain minimum levels of independence and impartiality that should be required of the arbitral process, regardless of the parties’ agreement. This being the case, the Law Commission then found: “59. 16. The Law Commission Report, which has been extensively referred to in some of our judgments, makes it clear that there are certain minimum levels of independence and impartiality that should be required of the arbitral process, regardless of the parties’ agreement. This being the case, the Law Commission then found: “59. The Commission has proposed the requirement of having specific disclosures by the arbitrator, at the stage of his possible appointment, regarding existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts. The Commission has proposed the incorporation of the Fourth Schedule, which has drawn from the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration, and which would be treated as a “guide” to determine whether circumstances exist which give rise to such justifiable doubts. On the other hand, in terms of the proposed section 12 (5) of the Act and the Fifth Schedule which incorporates the categories from the Red list of the IBA Guidelines (as above), the person proposed to be appointed as an arbitrator shall be ineligible to be so appointed, notwithstanding any prior agreement to the contrary. In the event such an ineligible person is purported to be appointed as an arbitrator, he shall be de jure deemed to be unable to perform his functions, in terms of the proposed explanation to section 14. Therefore, while the disclosure is required with respect to a broader list of categories (as set out in the Fourth Schedule, and as based on the Red and Orange lists of the IBA Guidelines), the ineligibility to be appointed as an arbitrator (and the consequent de jure inability to so act) follows from a smaller and more serious sub-set of situations (as set out in the Fifth Schedule, and as based on the Red list of the IBA Guidelines). 60. The Commission, however, feels that real and genuine party autonomy must be respected, and, in certain situations, parties should be allowed to waive even the categories of ineligibility as set in the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objective “justifiable doubts” regarding his independence and impartiality. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objective “justifiable doubts” regarding his independence and impartiality. To deal with such situations, the Commission has proposed the proviso to section 12 (5), where parties may, subsequent to disputes having arisen between them, waive the applicability of the proposed section 12 (5) by an express agreement in writing. In all other cases, the general rule in the proposed section 12 (5) must be followed. In the event the High Court is approached in connection with appointment of an arbitrator, the Commission has proposed seeking the disclosure in terms of section 12 (1), and in which context the High Court or the designate is to have “due regard” to the contents of such disclosure in appointing the arbitrator.” (Emphasis in original) Thus, it will be seen that party autonomy is to be respected only in certain exceptional situations which could be situations which arise in family arbitrations or other arbitrations where a person subjectively commands blind faith and trust of the parties to the dispute, despite the existence of objective justifiable doubts regarding his independence and impartiality. 17. The scheme of Sections 12, 13, and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under Sections 12(1) to 12(4) read with Section 13. However, where such person becomes “ineligible” to be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case, i.e. a case which falls under Section 12(5), Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e. de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator. This being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator under Section 14(1) itself. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties. Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator continues as such, being de jure unable to perform his functions, as he falls within any of the categories mentioned in Section 12(5), read with the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. Questions which may typically arise under Section 14 may be as to whether such person falls within any of the categories mentioned in the Seventh Schedule, or whether there is a waiver as provided in the proviso to Section 12(5) of the Act. As a matter of law, it is important to note that the proviso to Section 12(5) must be contrasted with Section 4 of the Act. Section 4 deals with cases of deemed waiver by conduct; whereas the proviso to Section 12(5) deals with waiver by express agreement in writing between the parties only if made subsequent to disputes having arisen between them. 18. On the facts of the present case, it is clear that the Managing Director of the appellant could not have acted as an arbitrator himself, being rendered ineligible to act as arbitrator under Item 5 of the Seventh Schedule, which reads as under: “Arbitrator’s relationship with the parties or counsel xxx xxx xxx 5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration” Whether such ineligible person could himself appoint another arbitrator was only made clear by this Court’s judgment in TRF Ltd. (supra) on 03.07.2017, this Court holding that an appointment made by an ineligible person is itself void ab initio. Thus, it was only on 03.07.2017, that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio. Since such appointment goes to “eligibility” i.e. to the root of the matter, it is obvious that Shri Khan’s appointment would be void. Thus, it was only on 03.07.2017, that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio. Since such appointment goes to “eligibility” i.e. to the root of the matter, it is obvious that Shri Khan’s appointment would be void. There is no doubt in this case that disputes arose only after the introduction of Section 12(5) into the statute book, and Shri Khan was appointed long after 23.10.2015. The judgment in TRF Ltd. (supra) nowhere states that it will apply only prospectively, i.e. the appointments that have been made of persons such as Shri Khan would be valid if made before the date of the judgment. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. Indeed, the judgment itself set aside the order appointing the arbitrator, which was an order dated 27.01.2016, by which the Managing Director of the respondent nominated a former Judge of this Court as sole arbitrator in terms of clause 33(d) of the Purchase Order dated 10.05.2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014, whereas the appointment by the Managing Director is after the Amendment Act, 2015, just as in the case of TRF Ltd. (supra). Considering that the appointment in the case of TRF Ltd. (supra) of a retired Judge of this Court was set aside as being non-est in law, the appointment of Shri Khan in the present case must follow suit. 19. However, the learned Senior Advocate appearing on behalf of the respondent has argued that Section 12(4) would bar the appellant’s application before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator, inter-alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act. 20. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act. 20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing.” The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: “9. Promises, express and implied - In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 21. The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation vs. Sasan Power Ltd. (2017) 1 SCC 487 , and referred to paragraph 21 thereof, which reads as follows: “21. 21. The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation vs. Sasan Power Ltd. (2017) 1 SCC 487 , and referred to paragraph 21 thereof, which reads as follows: “21. Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of contract, Section 63 of the Contract Act, 1872 governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.” This judgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty vs. Hotel Vandana Palace, (2014) 5 SCC 660 and BSNL vs. Motorola India (P) Ltd. (2009) 2 SCC 337 [“BSNL”], for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5). (v) In the facts of the instant case, it is not in dispute that there is no express Agreement entered into between the petitioner and respondent whereby both of them have waived the applicability of Section 12(5) of the Act subsequent to arising of disputes between them; Consequently, as held by the Apex Court in the aforesaid decisions, in the absence of an express agreement between the petitioner and the respondent subsequent to arising of disputes whereby the parties expressly agreed to waive the applicability of Section 12(5) of the Act, it cannot be said that the claim of the petitioner is barred by the principles of waiver, acquiescence and estoppel and the contention of the respondent in this regard deserves to be rejected. Point No. 4 is answered accordingly. Re: Point No. 5: (i) The undisputed material on record indicates that while it is the specific contention of the petitioner that all the 3 arbitrators who have entered upon reference in the instant dispute between the parties are ineligible and disqualified under Schedule V and Schedule VII to the Act, it is contended by the respondent that none of the 3 arbitrators incur any disqualification and that none of them are ineligible to be appointed as arbitrators. In my considered view, having regard to the conclusions arrived at by me in this order while dealing with points 1 to 4 (supra), the said aspect of the matter does not require to be dealt with or adjudicated upon for the purpose of disposal of the present petition. Point No. 5 is answered accordingly. 6. Accordingly, I pass the following: ORDER: (i) Petition is allowed. (ii) The portion of Clause 17.9 (a) of General Conditions of Contract to the Agreement dated 28.06.2010 vide Annexure-A entered into between the petitioner and respondent to the extent indicated below is held to be null and void, illegal, invalid, inoperative and unenforceable: “17.9(a) For this purpose the Employer shall maintain a panel of Arbitrators with the requisite qualifications and professional experience relevant to which the Claims relate. In case of a Sole Arbitrator the Panel will be of three Arbitrators out of which the contractor will chose one. In case of a Sole Arbitrator the Panel will be of three Arbitrators out of which the contractor will chose one. In case, three arbitrators are to be appointed, the Employer will make out a panel of five. The Contractor and the Employer will choose one Arbitrator each from the above and the two so chosen will choose one Arbitrator each from the above and the two so chosen will choose the third Arbitrator from the above panel only who will act as the ‘Presiding Arbitrator’ of the Arbitration Panel. If in a dispute, the Contractor fails to choose the Arbitrator within thirty (30) days after the Employer has nominated the Panel, the employer may apply to the Indian Council of Arbitration, New Delhi, to nominate an Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. If, in a dispute, the two chosen Arbitrators tail to appoint third Arbitrator within thirty (30) days after they have been appointed, the Employer may apply to the Indian Council of Arbitration, New Delhi, to nominate the third Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute.” (iii) However, except the aforesaid portion of clause 17.9 (a) indicated above, the remaining portion of clause 17.9 (a) and the rest of the Contract is held to be valid. (iv) Consequently, the constitution of the arbitral tribunal which has already entered upon reference in respect of the dispute between the petitioner and the respondent is hereby declared to be null and void. (v) Liberty is reserved in favour of the petitioner as well as the respondent to seek reference to arbitration outside the panel of arbitrators maintained by the respondent by taking necessary steps in this regard.