Arun Bhansali, J.

This arbitration application under Section 14 read with Section 11 of the Arbitration and Conciliation Act, 1996 ('the Act') has been filed by the applicant seeking termination of the mandate/removal of sole arbitrator and for appointment of fresh/new arbitrator.

The application has been filed with the following prayers:

"In view of the aforesaid, the applicant humbly prays before this Hon'ble Court that this Hon'ble Court may be pleased to:

(a). Terminate/Revoke the mandate of the Hon'ble Arbitrator Justice (Retd.) Narayan Prasad Gupta to act as the sole Arbitrator in the impugned Arbitration proceedings.

(b). Appoint a fresh/new arbitrator to act as the Sole Arbitrator with the mandate to complete the arbitral proceedings by taking over the proceedings from its current stage.

(c). Pass appropriate order determining the fee payable to the new Arbitrator.

(d). Pass any other order which this Hon'ble Court deems just and proper in favour of the Applicant."

2. The application with prayers as quoted above has been filed with the contentions that by order dated 27/9/2016 passed in Arbitration Application No. 6/2016 sole arbitrator was appointed to adjudicate upon the contractual dispute between the parties in terms of arbitration agreement and as per the Manual of Procedure for Alternative Dispute Resolution, 2009 ('the Manual of Procedure'); the arbitral proceedings commenced at Udaipur and parties filed their respective claim and counter claim. The respondent/claimant filed a claim of Rs. 99 crore (approx.) to which the applicant/respondent filed counter claim to the tune of Rs. 111 crore (approx.) for the alleged loss suffered respectively by the parties to the contract; the arbitrator fixed the fees payable by the parties for the resolution of dispute as per IV Schedule of the Act on 10.5.2016 calculating the same separately for the claim and counter claim as per the rates prescribed in the Schedule.

3. It appears that the fees fixed by the arbitrator were sought to be discussed by the applicant herein and submissions were made including based on Notification No.01/SRO/2017 dated 23.3.2017 issued by the Rajasthan High Court amending the Manual of Procedure and providing for calculation of arbitrator's fees on the aggregate of claim and counter claim and same was made applicable w.e.f. 23.10.2015.

4. However, request made by the applicant for scaling down the fee was declined by the arbitrator on 26.5.2017 (Annex.13). Submissions have been made in the application that on account of conflict like situation between the applicant and the arbitrator on the issue of fee, particularly when the applicant only has raised the objection of scaling down of fee, the applicant has lost faith that the sole arbitrator would be able to adjudicate upon the matter in dispute with utmost impartiality, several other submissions have also been made in the application.

5. The respondent appeared on caveat and has filed reply to the application making allegations that the intention and conduct of the applicant has always been to delay the arbitral proceedings initiated by the respondent against the applicant to recover its loss on account of breach of contract. The averments made in the application questioning the action/determination of the arbitrator and the implication/inference sought to be drawn by the applicant have been denied.

6. Further submissions have been made that apparently no objection was raised at the time when the fees were fixed. It is also submitted that the application made is frivolous and has been made on vague grounds and, therefore, the same deserves to be dismissed.

7. A rejoinder has been filed by the applicant along with certain emails exchanged between the arbitrator and the parties.

8. During the course of submissions being made by parties on the application, an issue arose as to the maintainability of the present application under Section 14 of the Act before this Court. The parties were granted opportunity t