Participation Or Counter-Claim Cannot Substitute Waiver U/S 12(5) A&C Act: Delhi High Court Sets Aside Award Over Unilateral Appointment Of Retired PWD Official

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Published 2 November 2026

Case: Not stated in source
Court: High Court of Delhi
Bench: Not stated in source
Citation: Not stated in source
Statutes: Arbitration and Conciliation Act, 1996 — s.34
Source: Verdictum

Bottom Line Up Front (BLUF)

The Delhi High Court set aside an arbitral award and a Section 34 order, holding that participation in arbitration or filing a counter-claim does not constitute an express waiver under Section 12(5) of the Arbitration and Conciliation Act, 1996, especially when objections to the arbitrator's unilateral appointment were raised in written submissions.

Ratio Decidendi · Legal Principle Established

Participation in arbitral proceedings or filing a counter-claim does not amount to an express agreement in writing to waive the applicability of Section 12(5) of the Arbitration and Conciliation Act, 1996, particularly when objections regarding the arbitrator's unilateral appointment are raised in written submissions.

Practice & Procedural Impact for Advocates

Advocates should ensure that any waiver of Section 12(5) of the A&C Act is an express agreement in writing, not merely inferred from participation. Litigants should raise objections to arbitrator appointments at the earliest opportunity and reiterate them clearly in written submissions to preserve their rights.

Key Legal Takeaways

1Waiver under Section 12(5) of the A&C Act must be an express agreement in writing.
2Mere participation in arbitration or filing a counter-claim does not constitute such a waiver.
3Objections raised in written submissions regarding arbitrator appointment must be considered, even if not raised at the outset of proceedings.

The Legal Issue The Delhi High Court addressed whether participation in arbitral proceedings or filing a counter-claim could be construed as a waiver of the right to object to a unilaterally appointed arbitrator under Section 12(5) of the Arbitration and Conciliation Act, 1996. The case involved an arbitral award where a retired PWD official was unilaterally appointed as the arbitrator, and objections to this appointment were raised in the written submissions of the party challenging the award.

Court's Reasoning The Delhi High Court set aside both the arbitral award and the order passed under Section 34 of the Arbitration and Conciliation Act, 1996. The Court clarified that for a waiver under Section 12(5) to be valid, it must be an 'express agreement in writing'. It held that merely participating in the arbitration proceedings or filing a counter-claim does not fulfill this requirement. The Court emphasized that even if objections were not raised at the initial stage, their inclusion in the written submissions was sufficient to warrant examination. The Court found that the unilateral appointment of a retired PWD official was impermissible under the Act, and the subsequent participation did not cure this fundamental defect in the arbitrator's appointment.

What Follows The arbitral award and the Section 34 order have been set aside. This implies that the dispute will likely need to be re-adjudicated, potentially through a fresh arbitration with a properly constituted arbitral tribunal. The decision reinforces the strict interpretation of Section 12(5) of the Arbitration and Conciliation Act, 1996, requiring an explicit written waiver for any disqualification to be overlooked.