Delhi High Court - Orders
National Highways Authority Of India vs Haridwar Highways Project Limited on 13 September, 2021
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (T) (COMM.) 91/2021
NATIONAL HIGHWAYS AUTHORITY OF INDIA ... Petitioner
Through Mr. Ashish Rana and Ms. Aashnaa
Bhatia, Advs.
versus
HARIDWAR HIGHWAYS PROJECT LIMITED .... Respondent
Through Nemo
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
ORDER
% 13.09.2021 I.A. 11667/2021 (exemption)
1. Allowed, with direction to file requisite clear copies, legible copies with appropriate margins of documents, original documents, certified copies and English translation within six weeks of this Court resuming normal functioning.
2. Application stands disposed of.
O.M.P. (T) (COMM.) 91/2021 & I.A. 11666/2021 (for stay)
3. After learned Arbitral Tribunal was constituted and it came into motion, its first hearing was held on 14.02.2019 and the learned Arbitral Tribunal laid down the time schedule for arbitration proceedings along with fee and expenses of the members of the Tribunal.
4. Second hearing was held on 02.08.2019, whereby issues/points of determination were framed by the Arbitral Tribunal. Further, the fee for counter claims was fixed at Rs.49,87,500/- per member of the Tribunal O.M.P. (T) (COMM.) 91/2021 Page 1 of 4 payable by parties in three equal instalments. Furthermore, the fee fixed for claims in Procedural Order No. 1 was increased from Rs.49,00,000/- to Rs.49,87,500/- due to some error of calculation.
5. Further case of the petitioner is that the respondent has filed claim of Rs.2206,95,80,820/- and the Petitioner has also filed counter-claims of Rs.2226,25,88,411/- before the Arbitral Tribunal and in view of aforementioned orders, petitioner filed an application on 23.11.2020 via email before the Tribunal seeking recall of order dated 02.08.2019, however, vide order dated 01.02.2021, the learned Arbitral Tribunal rejected the application filed by the applicant therein holding that Arbitral Tribunal is an ad-hoc Tribunal and thus, it has power to decide its own fees under Section 38 of the Arbitration and Conciliation Act, 1996. The Arbitral Tribunal further directed the applicant therein to deposit the fees as was directed earlier.
6. It is averred in the petition that under Clause 44.3 of the Concession Agreement, it is stated that if disputes arise under the Agreement, the same should be resolved by way of arbitration while following the ICADR Rules, 1996.
7. Learned counsel for the petitioner submits that on 02.08.2019, the learned Arbitral Tribunal inter-alia recorded that the fee of the Tribunal is being fixed under Schedule I of the ICADR Arbitration Rules which is pari materia to Fourth Schedule of the Arbitration and Conciliation Act, 1996. Schedule I of ICADR Rules, 1996 provides for the fixation of fees as per the "amount in dispute". Learned counsel for petitioner submits that the words "amount in dispute" includes the amounts involved in the claim and counter claim. Therefore, while interpreting and fixing fee as O.M.P. (T) (COMM.) 91/2021 Page 2 of 4 per the Schedule I of the ICADR Rules, 1996, the words "amount in dispute" have to be read as claim along with counter-claim amount.
8. Learned counsel for petitioner further submits that if Schedule I of the ICADR Rules, 1996 is applied, the maximum fees that is required to be paid cannot exceed Rs.30,00,000/- being the prescribed ceiling.
9. To strengthen his arguments, learned counsel for petitioner has relied upon decision of this Court dated 15.05.2018 in Delhi State Industrial Infrastructure Development Corporation Limited (DSIIDC) Vs. Bawana Infra Development Private Limited O.M.P.(Misc.) No. 5 of 2018 wherein it has been held that in the Fourth Schedule to the Arbitration and Conciliation Act, 1996, the term "Sum in Dispute", on the basis of which the arbitral fee is prescribed, includes both claim and counter-claim.
10. Further relied upon judgment dated 04.10.2018 passed by this Court in the matter of National Highways Authority of India Vs. North Bihar Highway Ltd. O.M.P. (T) (COMM.) 104 of 2018 wherein it was observed that the Arbitral Tribunal may revisit the issue as to what should be the ceiling.
11. Learned counsel for petitioner submits that the decision of the learned Arbitral Tribunal to charge separate fee for counter-claim is in violation of the scheme of the Arbitration Act and the governing rules and making Arbitral Tribunal de jure as well as de facto unable to perform its functions and thus, calling for termination and of mandate of all the Arbitrators in the Tribunal.
12. Learned counsel for petitioner further submits that the decision of the Arbitral Tribunal to charge separate fees for the counter-claim is in O.M.P. (T) (COMM.) 91/2021 Page 3 of 4 teeth of the scheme of Arbitration & Conciliation Act, 1996 with respect to arbitration proceedings governed by the institutional rules.
13. Learned counsel for petitioner also submits that the as per 37(1) of the ICADR Rules, 1996, the fees of the arbitrators is either determined from the amount of the statement of claim or can be based on the cumulative amount of claims and counter-claims. Therefore, in any circumstance, there cannot be separate fees for claims and counter- claims.
14. Notice issued.
15. On taking steps, let notice be served upon the respondents by all modes, including e-mail and dasti, returnable on 12.11.2021.
16. Till further orders, the proceedings before the learned Arbitral Tribunal shall remain stayed.
SURESH KUMAR KAIT, J SEPTEMBER 13, 2021 RK O.M.P. (T) (COMM.) 91/2021 Page 4 of 4