JUDGMENT :

S. Ravindra Bhat, J.

1. Chennai Metro Rail Limited, the applicant (hereinafter referred to as “Chennai Metro”), a joint venture between the Central Government and the Government of Tamil Nadu, had, pursuant to a public tender, awarded the contract to the respondent (hereafter referred to as “Afcons”) have called for a project the total value of Rs. 1566 crores. The contract was signed on 31.01.2011. Eventually, on 15.04.2021, Afcons sought a reference of several heads of disputes to arbitration after certain interlocutory proceedings. Eventually on 29.04.2021, it was agreed that two dispute heads (claim 2(b) to 2(d)) and the Chennai Metro’s counter claim would be referred to a three-member tribunal under the Arbitration and Conciliation Act, 1996 (hereafter “the Act”). The tribunal was then constituted.

2. The tribunal by Minutes dated 14.05.2021 recorded the agreement of parties, that the hearing fee for each arbitrator (there were three members of the Tribunal) was fixed at Rs.1,00,000/- per session of hearing date. During the course of the proceedings, one member of the tribunal passed away and had to be substituted, which was done on 12.08.2021. The parties proceeded with the conduct of arbitration. In the mean-while, another tribunal had dealt with two claims of Afcons. The award passed in those proceedings became the subject matter of challenge (by Afcons) under Section 34 which was declined by an order of the Madras High Court. The appeal against that order was thereafter pending.

3. The tribunal in the present case on 13.04.2022 decided that suspension of its proceedings due to the pendency of the appeal, to await the outcome of the Division Bench was not in the larger interest of justice and proceeded with other part of the claim which was pending before it. The 10th Meeting/hearing was held on 28.06.2022 and its minutes were issued on 01.07.2022. The tribunal sought to revise the fee payable from Rs.1,00,000/- to Rs.2,00,000/- for each session of three hours. Chennai Metro objected to this revision on 08.07.2022 through an affidavit. Expressing its disagreement with the enhancement, Afcons by its affidavit dated 10.07.2022 submitted that the applicability of Schedule IV of the Act, and the issue of increase of tribunals’ fee, after initial fixation, was subjudice before this court and the arguments were concluded on 11.05.2022. Afcons therefore requested the tribunal to keep its direction for modification of fee, in abeyance till the decision of this court. In these circumstances, the proceedings continued and cross-examination of Afcons’ witnesses was taken up by Chennai Metro on three later dates of hearing. According to Chennai Metro, the issue of fees was not taken up; yet in the minutes of these proceedings issued on 24.07.2022, the tribunal reiterated its stand about entitlement of revised fee. The tribunal also stated that the session would be considered one complete session for four and a half hours i.e. between 3.30 p.m. to 8 PM. The parties were directed to pay the revised fee from the 10th Virtual Meeting onwards i.e. in effect for the past hearings too. The Tribunal further stated that it was not known when this court would deliver its judgment and also raised doubts about the applicability of the said decision on the present tribunal.

4. Afcons, by its e-mail dated 28.07.2022 informed Chennai Metro that it had paid the revised fee for five hearings (i.e., for 10th to 14th virtual hearings). Chennai Metro therefore filed an application before the Madras High Court on 10.08.2022. In this proceeding under Section 14, the relief sought was a declaration that the mandate of the tribunal (whose members were impleaded as second to the fourth respondents, hereafter collectively referred to as “the tribunal”) was terminated in respect of the disputes referred to them. It was highlighted in these proceedings, that the payment of the disputed increased amount by one party, placed Chennai Metro “in an embarras