ARB.P. 1711/2025 $~2 * IN THE HIGH COURT OF DELHI AT NEW DELHI # CNR No. DLHC010789502025 + ARB.P. 1711/2025 OMPARKASH .....Petitioner Through: Mr. Rahul Aggarwal, Advocate. versus THE GOVERNMENT OF NCT OF DELHI AND ORS .....Respondent Through: Mr. Anubhav Gupta, Panel Counsel (Civil) for GNCTD. CORAM: HON'BLE MS. JUSTICE JYOTI SINGH O R D E R % 29.09.2026 1. This petition is filed on behalf of the Petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996 (‘1996 Act’) for appointment of an Arbitrator. 2. Case of the Petitioner is that Letter of Award was issued by the Respondent in favour of the petitioner on 06.11.2018 for work of “Development of Abandoned Portion of Bawana Escape Drain from Burari Bakhtawarpur Road to Hiranki Checkpost into a Water Body to facilitate Ground Water Recharge by using constructed wetland system(Revised)”. LOP was issued on 12.11.2018 and after this an Agreement was formally executed between the parties, stipulating 22.08.2019 as the date of completion and therefore, nine months period was given for completion of This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/10/2026 at 11:28:35 ARB.P. 1711/2025 the work. As per the LOA, Petitioner furnished performance bank guarantee of Rs. 7,00,000/-. The work was executed as per the agreement, however, without any valid reason and without giving chance of hearing, Respondent rescinded the contract vide letter date 06.06.2022 and Petitioner sent notice dated 25.08.2022 under Clause 25 of the Agreement stating that the rescission was unlawful and arbitrary. Many communications were sent thereafter, but there was no response and hence, petitioner invoked the Arbitration Agreement and sent notice on 06.09.2024 under Clause 25 of the Agreement seeking appointment of a Sole Arbitrator. Notice was served on the Respondent, but the arbitrator was not appointed. 3. Learned counsel for the Respondent submits that the Arbitration Agreement contained in Clause 25(ii) expressly provides that the Sole Arbitrator shall be appointed only by the Chief Engineer, CPWD (I&FC in this case) or Additional Director General or Director General of Works and no other person and if that was not possible, the matter will not be referred for arbitration and since in view of judgements of the Supreme Court in TRF Limited v. Energo Engineering Projects Limited, (2017) 8 SCC 377 and Perkins Eastman Architects DPC and Anr. v. HSCC (India) Ltd., (2020) 20 SCC 760, the appointing authority under the arbitration clause is disqualified from appointing an arbitrator, no reference can be made to arbitration. 4. There is merit in the contention of the Respondent that in light of the judgements in TRF Limited (supra) and Perkins Eastman (supra), the authority designated in arbitration clause 25(ii) has become ineligible to appoint an arbitrator, however, the second submission that owing to the ineligibility of the appointing authority, no arbitration can take place This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/10/2026 at 11:28:35 ARB.P. 1711/2025 between the parties to the lis, is misconceived. In Hindustan Construction Company Limited through its Authorised Signatory Yogesh Dalal v. Bihar Rajya Pul Nirman Nigam Limited and Others, (2026) 3 SCC 264, dealing with a similar clause, the Supreme Court held that unilateral and exclusionary mechanism of appointment is void and severable and that the Courts under Section 11(6) are empowered to cure the defect and appoint an independent Arbitrator. Applying this judgement, co-ordinate Bench of this Court in Mahavir Prasad Gupta and Sons v. Government of Government of NCT of Delhi, ARB.P. 716/2026, decided on 11.08.2026, held that Clause 25 GCC providing for appointment of the arbitrator by the Respondent is void but this will not dent the substantive agreement to arbitrate. 5. Scope of jurisdiction of a Referral Court under Section 11(6-A) is restricted and Courts have to determine existence of arbitration agreement between the parties. Clause 25(ii) in the instant case, which is an arbitration agreement, provides for appointment of the arbitrator by the Respondent and since this would amount to unilateral appointment, to this extent the clause is void and unenforceable in law. In TRF Limited (supra) and Perkins Eastman (supra), it is held by the Supreme Court that a party who has an interest in the outcome of the dispute, cannot be appointed as an arbitrator and being ineligible for appointment, he cannot appoint an arbitrator. This controversy was set to rest by the Supreme Court in the judgement in Central Organization for Railway Electrification v. ECI-SPIC-SMO- MCML (JV), (2025) 2 SCC 1, wherein the Supreme Court observed that principle of equal treatment of parties enshrined in Section 18 of 1996 Act operates at the stage of constitution of the Arbitral Tribunal as well and This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/10/2026 at 11:28:35 ARB.P. 1711/2025 therefore, an appointment procedure which envisages appointment by an interested party is untenable in law. Recently, in Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 SCC Online SC 7, this position in law was reaffirmed. Therefore, Clause 25 of the Agreement which gives right to the Respondent to make unilateral appointment is void and legally unenforceable to that extent albeit the arbitration agreement will survive and consequently, the contention of the Respondent that there can be no reference to arbitration in light of the ineligibility of the Chief Engineer or any other designated officer, is rejected. 6. Accordingly, this petition is allowed. Delhi International Arbitration Centre (‘DIAC’) is directed to appoint a Sole Arbitrator to adjudicate the disputes between the parties as per DIAC Rules and fee of the Arbitration shall be fixed as per fee schedule under DIAC (Administrative Cost & Arbitrators’ Fees) Rules, 2018. 7. Learned Arbitrator shall give disclosure under Section 12 of the 1996 Act before entering upon reference. 8. It is made clear that this Court has not expressed any opinion on the merits of the case and all rights and contentions of the respective parties are left open. 9. It will be open to the Respondent to file the counter claim, if any. 10. Petition is disposed of in the aforesaid terms. JYOTI SINGH, J SEPTEMBER 29, 2026/AK This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/10/2026 at 11:28:35