The Court emphasized that grievances regarding the conduct of the arbitrator should be raised at the stage of challenging the eventual award and that the alleged delay in the proceedings did not warrant substitution of the arbitrator.

ORDER :

The rival parties have both approached this Court invoking Section 29-A of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Arbitration Act') for extension of mandate of the learned arbitrator. The only dispute between the parties pertains to the fact that the petitioners in Commercial Arbitration Petition (L) No.24453 of 2023 i.e. M/s. Shanklecha Constructions and others, are also seeking substitution of the learned arbitrator. In that light, the said petitioners have invoked Section 14 of the Arbitration Act also, claiming that the learned arbitrator has been rendered de facto unable to perform her functions. This is seriously disputed by the petitioner in Commercial Arbitration Petition No.368 of 2023 i.e. Ashok Mohanraj Chhajed, who in turn claims that no ground is made out either under Section 14 or under Section 29-A(6) of the Arbitration Act for substitution of the learned arbitrator. For the sake of convenience, the parties are being referred to as per their status in Commercial Arbitration Petition (L) No.24453 of 2023 i.e. M/s. Shanklecha Construction and others as the petitioners and Ashok Mohanraj Chhajed as the respondent.

2. The facts leading upto filing of these two petitions are that a partnership deed was executed on 21.07.2017 between the parties. Disputes arose between the parties and upon invocation of arbitration, an application under Section 11 of the Arbitration Act was filed. By an order dated 19.03.2019, this Court disposed of the said application by appointing a sole arbitrator, being a former Judge of this Court. The said order was silent on the aspect of fees to be charged by the learned arbitrator.

3. On 11.04.2019, a preliminary meeting was held by the learned arbitrator. It was specified therein that the learned arbitrator would charge fees as per Schedule IV to the Arbitration Act. The modality for payment of fees was specified as per the claim, while the modality for payment of fees for the counter-claim was to be indicated later on.

4. On 16.04.2019, the statement of claim was filed. On 18.04.2019, the learned arbitrator passed order on an application filed under Section 17 of the Arbitration Act. The order was passed in favour of the original claimant i.e. the respondent. On 10.06.2019, the petitioners filed their statement of defence and counter-claim, to which on 18.06.2019, the respondent filed reply to the counter-claim.

5. On 25.09.2019, the arbitrator passed an order holding that since capping limit of the fees had been reached, no fees could be charged on the counter-claim except 1/4th of the ad-valorem amount payable to the learned arbitrator. On 18.10.2019, additional statement of defence came to be filed to the amended statement of claim and accordingly, the pleadings stood completed on the said date.

6. The respondent i.e. the original claimant proceeded to place evidence in support of the claim and on 28.02.2020, his evidence was closed. On 26.11.2020, the learned arbitrator directed the parties to pay her balance fees. On 05.12.2020, the petitioners i.e. the respondents before the learned arbitrator filed their affidavit of evidence. On 17.04.2021, the learned arbitrator again directed the parties to pay her fees. On 05.06.2021, the learned arbitrator passed an order, making some observations against the petitioners, indicating that they were not proceeding with the matter on dates that had been selected by their own witnesses. On 06.09.2021, the evidence of the petitioners was closed.

7. On 30.08.2022, the Supreme Court pronounced its judgement in the case of Oil and Natural Gas Corporation Limited (ONGC) Vs. Afcons Gunanusa JV, 2022 SCC OnLine SC 1122. In the said judgement, the Supreme Court held that fees under Schedule IV of the Arbitration Act has to be computed separately for the claim and the counter-claim.

8. On 19.12.2022, the learned arbitrator took note of the aforesaid judgement of the Supreme Court in the case of ONGC Vs. Afcons Gunanusa J