The arbitral Tribunal was entitled to fix its fee as its appointment was made by way of an ad hoc agreement between the parties.

JUDGMENT

Sanjeev Narula, J. - National Highway authority of India [hereinafter, 'NHaI'] invokes Section 14 and 15(2) of the arbitration and Conciliation act, 1996, to seek termination of mandate of the arbitral Tribunal comprising of Hon'ble Mr. Justice Vikramjeet Sen (Retd.), Hon'ble Mr. Justice V. N. Sinha (Retd.) and Mr. Ratan K. Singh, Senior advocate.

THE FaCTS

2. Briefly stated, NHaI and Respondent - MEP Chennai Bypass Toll Road Pvt. Ltd. [hereinafter, 'MEP Chennai'] entered into a Concession agreement dated 14th January, 2013 [hereinafter, 'the agreement']. The said agreement contains an arbitration clause, which reads as follows:

'36.3.1 any Dispute which is not resolved amicably by conciliation as provided in Clause 36.2 shall be finally decided by reference to arbitration by a Board of arbitrators appointed in accordance with Clause 36.3.2. Such arbitration shall be held in accordance with the Rules of arbitration of the International Centre for alternative Dispute Resolution, New Delhi (the 'Rules'), or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the arbitration act. The venue of such arbitration shall be Delhi, and the language of arbitration proceedings shall be English.'

3. When disputes arose, NHaI appointed Dr. Birendra Kumar Sinha, IaS (Retd.) as its nominee arbitrator in terms of procedure contemplated under the afore-noted Clause. MEP Chennai accepted the said nomination, and in turn, appointed Mr. Ratan K. Singh, Senior advocate as its nominee arbitrator. The two arbitrators then, agreed upon Justice Vikramjeet Sen (Retd.) as the third arbitrator, and accordingly, the arbitral Tribunal stood constituted on 19th april, 2019.

4. When arbitration commenced, the arbitral Tribunal vide order dated 14th May, 2019 declared that although the arbitration clause made a mention of the International Centre for alternative Dispute Resolution [hereinafter, 'ICaDR'] and ICaDR Rules, it did not mandate that proceedings must be held under the aegis of ICaDR. Further, the Tribunal noted that it did not receive any communication from ICaDR and the parties have mutually agreed that the Tribunal may adopt procedure as deemed appropriate and expedient by it. In light of the same, the Tribunal noted that in the event MEP Chennai preferred a counter-claim, a fee separate to the claim would be payable to Tribunal.

5. Subsequently, the arbitral Tribunal vide order dated 2nd November, 2020, directed NHaI to pay the entire arbitral fee on the claim; whereas, MEP Chennai was directed to pay entire arbitral fee on the counter-claim.

6. On 30th august, 2021 and 16th October, 2021, the Tribunal reiterated that the parties had not paid the arbitral fee in terms of orders dated 14th May, 2019 and 2nd November, 2020 or the costs imposed vide order dated 25th January, 2021.

7. On dated 3rd November, 2021, the arbitral Tribunal suspended claims and counter-claims since the parties had failed to clear arrears of arbitral fee. On 9th November, 2021, Tribunal restored the counter-claims in view of payment of arbitral fee by MEP Chennai. Since arbitral fee on the claim was still not paid, the same was directed to remain suspended. On 17th November, 2021, the Tribunal reiterated that NHaI's claim remains suspended on account of its failure to clear the outstanding arbitral fee and intimated that the claim shall be terminated, if the balance payment is not made.

8. Thereafter, NHaI filed an application dated 10th December, 2021, inter alia asking the arbitral Tribunal to revise its fee in accordance with Fourth Schedule of the act - which is pari materia with Schedule I of the ICaDR Rules. The Tribunal considered the said application and dismissed the same vide order dated 4th January, 2022, holding that the it is not bound by the Fourth Schedule of the act and arbitral fee was determined separately for claims and counter-claims, keeping in mind the facts and complexity of the dispute between the pa