Arbitration fees must adhere strictly to the terms of the Arbitration Agreement, and unilateral alterations by the Tribunal are impermissible.

JUDGMENT

V. Kameswar Rao, J. (ORAL)

I.A. 13050/2022 (filed by the petitioner seeking permission to place additional documents on record)

For the reasons stated in the application, the same is allowed and the documents A, B and C filed along with the application are taken on record. Application is disposed of.

O.M.P. (T) (COMM.) 45/2022

1. This petition has been filed by the petitioner National Highways Authority of India ("NHAI", for short) under Section 14 and 15 (2) of the Arbitration and Conciliation Act, 1996 ("the Act" hereinafter) seeking, inter-alia, termination of the mandate of the Arbitral Tribunal ("Tribunal" hereinafter) and appointment of a substitute Tribunal.

2. According to the petitioner, the Tribunal is de jure and de facto unable to perform its functions, as the fee being charged by the Tribunal is in complete disregard of the agreement between the parties which provides for Arbitration as per the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi ("ICADR Rules", for short). The respondent is a special purpose vehicle incorporated to carry out rehabilitation and upgradation of the Piprakothi-Motihari-Raxaul Section of National Highway (NH) 28A from KM 0.600 to KM 62.064 and for construction of two-lane link road from KM 62.064 to ICP Raxaul Section of the said National Highway in the State of Bihar on Design, Build, Finance, Operate and Transfer (DBFOT) basis.

3. A Concession Agreement ("CA", hereinafter) was signed between the petitioner and the respondent on April 15, 2011 for two-laning with paved shoulder of Piprakothi to Raxaul Section of NH - 28A from KM. 0.600 to KM. 62.064 in the State of Bihar. Clause 44.3.1 of the CA provided as under:

"a. Arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi.

b. Or such other rules as may be agreed by the Parties and shall be subject to the provisions of the Arbitration Act.

c. The venue of such arbitration shall be Delhi."

4. Later, certain disputes arose between the parties and it was mutually agreed to refer the disputes to arbitration in accordance with ICADR Rules in terms of Clause 44.3.1 reproduced above, and accordingly a three-member Tribunal was appointed.

5. On May 27, 2018, the Tribunal stated that it would fix its own fees as per the judgment of this Court in National Highway Authority of India v. Gayatri Jhansi Roadways Ltd., 2017 SCC OnLine Del 10285. Accordingly, the fee was fixed as per Fourth Schedule of the Act. Relevant part of the order dated May 27, 2018 is reproduced as under:

"10 .... Fees payable to each of the Arbitrators shall be as per Fourth Schedule to the Arbitration and Conciliation Act, 1996 (as amended) which, depending upon the claim shall be paid to each arbitrator towards establishment cost and administrative charges.

xxx xxx xxx

11.4 The venue of arbitration will be generally at Delhi unless situation arises to hold at Kolkata, Patna or any other place or places."

6. The petitioner filed an application on July 18, 2018 for modification of the order dated May 27, 2018 with respect to fees and venue. The Tribunal dismissed the application vide order dated September 20, 2018 by stating as under:

"11 . .. We are of the view that the application is liable to be rejected and accordingly rejected vide this order particularly on the basis of the order passed by two members of the Tribunal being common in arbitration between North Bihar Highways Ltd and National Highways Authority of India vide order no. 5 dated 08.08.2018.

12. So far the second limb of the application with regard to venue is concerned, it will be held at Delhi in usual course excepting for some reasons which are contemplated u/s 20(3) of the Arbitration and Conciliation Act, 1996, names of the other places are mentioned in the order.

13. So far as the order which we have passed following the other order of the other Tribunal