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19. It is his submission that the Tribunal is a creation of the Arbitration Agreement and derives its power from it. The parties are the appointing authority and fee, if provided in the Arbitration Agreement is part of the terms of appointment and is binding. The Supreme Court in NHAI v. Gayatri Jhansi Roadways Ltd, (2020) 17 SCC 626, while considering two conflicting judgments passed by two co-ordinate benches of the this Court in Gayatri Jhansi Roadways Ltd. (supra) (relied upon by the Tribunal to fix its own fee) and NHAI v. Gammon Engineers and Contractors Ltd, 2018 SCC OnLine Del 10183, held that the law laid down by the Single Judge of this Court in Gayatri Jhansi Roadways (supra) is not a correct view of the law. The Supreme Court held that the Tribunal was bound to charge fee as per the agreement between the parties and cannot charge anything contrary to it. It was held that the arbitrator‟s fees may be a component of costs to be paid but it is a far cry thereafter to state that Section 31 (8) and 31-A of the Act would directly govern contracts in which fee structure has already been laid down. When the Agreement lays down the fee to be paid or the rules to be followed, in the present case, the ICADR Rules, then the same forms an integral part of the KUMAR YADAV O.M.P. (T) (COMM.) 45/2022 Page 10 terms of appointment. The Tribunal is bound by the arbitration agreement between the parties, which is the source of its power. The Tribunal cannot accept the appointment in part and rewrite the arbitration agreement between the parties. This Court in the matter of NTPC v. Amar India OMP (T) (Comm.) No. 13/2020, held where a Tribunal decides to charge a higher fee which is not as per the Arbitration Agreement, then the Tribunal has not accepted its appointment and has in fact varied the terms of the appointment and is thus, de jure unable to perform its functions.

21. In the present case, the arbitration clause provides that the arbitration is to be held in accordance with the ICADR Rules. The ICADR Rules provide for the fee payable to the Tribunal and the fee prescribed by the ICADR Rules is binding on the Tribunal. As per ICADR Rules, the maximum fee payable to each of the arbitrator is ₹30,00,000/- for both claims and counter claims taken together. This Court in NHAI v. North Bihar Highway Limited, OMP (T) (Comm.) No. 104/2018, has also held that the maximum fee required to be paid as per the ICADR Rules cannot exceed ₹30,00,000/-.

27. Without prejudice to the afore mentioned submissions, Mr. Tripathi has also submitted that as soon as it revised the fee payable to the arbitrators vide order dated November 24, 2021, the Tribunal, at that very instant became de jure incapable to perform its functions and its mandate is liable to be terminated.

28. That apart, Mr. Tripathi has also submitted that the initial fixation of fee by the Tribunal at ₹ 49,87,500/- (plus 10% towards KUMAR YADAV O.M.P. (T) (COMM.) 45/2022 Page 17 their research associates) for each arbitrator by and ignoring fee prescribed under the ICADR Rules (which is made applicable to the arbitration) was illegal and contrary to law. Moreover, it is also the case of the petitioner as put forth by Mr. Tripathi that even under the Fourth Schedule of the Act, which is pari materia to the Fee Schedule of ICADR, the maximum fee payable is ₹ 30,00,000/-. He has pointed out that the issue qua the ceiling limit under the Fourth Schedule is pending before the Supreme Court in the case of Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV, Arbitration Petition (Civil) 05/2022 and connected matters which included the case of Rail Vikas Nigam Ltd. v. Simplex Infrastructure, SLP(C) No. 10358/2020, where the petitioner herein, i.e., the NHAI has filed an impleadment application and argued for the ceiling of ₹ 30,00,000/-. To buttress his argument that the ceiling is in fact ₹30,00,000/-, he has relied upon a judgment of the High Court of Patna in the case of State of Bihar and Ors. v. Bihar Sugarcane Corporation Ltd. and Ors., MANU/BH/0720/2020; a judgment of the High Court of Allahabad at Lucknow in State of UP and Ors., v. GVK EMRI (UP) Pvt. Ltd. and Ors., MANU/UP/1313/2021, and the 246th Law Commission Report dated August 2004. He has also referred to the judgments of the Supreme Court in the cases of OS Singh and Anr. v. Union of India and Anr. (1996) 7 SCC 37; Mithilesh Kumari and Anr. v. Prem Behrari Khare, (1989) 2 SCC 95 and Shrimant Shamrao Suryavanshi and Anr. v. Prahlad Bhairoba Suryavanshi (Dead) by LRs and Ors., (2002) 3 SCC 676, to contend that the provision in the sixth entry of the Fourth Schedule of the Act should be interpreted to KUMAR YADAV O.M.P. (T) (COMM.) 45/2022 Page 18 mean that the maximum ceiling of fee payable is ₹ 30,00,000/- and not ₹49,87,500/-. Further, as per the agreement and the ICADR Rules applicable to the arbitration, the arbitrator‟s fee is capped at ₹30,00,000/- and the petitioner has paid its share of ₹15,00,000/-.

39. In the present case, the arbitration clause provides that the arbitration shall be in terms of the ICADR Rules. The ICADR Rules provides the following:-

II. Arbitrator's fee referred to in rule 28 Amount of fee Amount in dispute For one Arbitrator (in rupees) (in rupees)