JUDGMENT :

(Prayer: Original Petition filed under Section 14 and Section 15 read with Section 11 of the Arbitration and Conciliation Act, 1996, praying to terminate the mandate of the arbitral tribunal and reconstitute the arbitral tribunal by appointing a Retired High Court Judge as a sole arbitrator.)

This Original Petition has been filed seeking to terminate the mandate of the Arbitrator who entered a reference in dispute emanated from the agreement dated 11/2005-2006 consequent to the letter of acceptance issued by the 1st Respondent.

2. The petitioner has entered into an agreement of contract dated 29.07.2015 with the 1st respondent for upgrading Virudhachalam/ Parangipettai State Highways No.SH 70 for a contract price of Rs.165,41,09,975/-. The date of commencement of contract period is 33 months. On 23.7.2018 notice of termination was issued by the petitioner upon recommendations from the authority engineer on 11.6.2018. Thereafter, the dispute arose between the parties. The petitioner has invoked the bank guarantee, as against which a suit was filed by the 1st Respondent before the City Civil Court in O.S.No.7525 of 2018. Thereafter, Application under Section 8 of the Act was also filed by the Petitioner. Thereafter, the matter has been referred to the Arbitration. Subsequently, three member Arbitrators were appointed.

3. The first hearing of the arbitration was held on 14.02.2019, wherein the fees and other expenses were fixed by the Arbitral Tribunal. The Tribunal had fixed a sum of Rs.1,00,000/- per sitting per Arbitrator for internal meetings and site visits if any and the above fee is restricted to the claim and it reserves the right for further counter claims, if any. The Arbitral Tribunal has also fixed reading charges of Rs.2 lakhs for each Arbitrator. Apart from that, a sum of Rs.1 lakh was fixed as incidental charges other than the meeting charges. Besides extra charges for days other than hearing/meeting fees subject to a maximum period of two days per occasion, a sum of Rs.20,000/- per day per arbitrator was fixed. That apart the charges for lodging, boarding and travel by Air as per actual on submission of supporting vouchers and other expenses also fixed by the Arbitral Tribunal.

4. It is an undisputed fact that about 32 hearings were conducted by the learned Arbitrators. Similarly, it is also undisputed that originally, the petitioner has filed its reply statement along with counter claim to the tune of Rs.1,16,89,716/-. Thereafter, they have amended and reserved their right to claim. Later stage, they have filed the counter claim and amended the claim for a sum of Rs.56,42,79,789/-. At this stage, the trouble started. It is also relevant to note that per day, two settings were conducted and sometimes, the learned Arbitrators have conducted one session in the morning and other session in afternoon. Some of the sittings conducted in post lunch at 02.30 p.m. and thereafter, at 05.30 p.m. sittings conducted for another hearing. It is to be noted that for each hearings, separate fees directed to be paid by the parties. The minutes of the first and preliminary meeting of the Arbitral Tribunal dated 14.02.2019 indicates that there was direction to parties to pay the fees as aforesaid. The very nature of the minutes recorded by the Arbitral Tribunal indicates that fees is not fixed on arriving consensus between the parties. In fact, the Arbitral Tribunal directed the parties to pay the fees by both parties. Be that as it may. Subsequent hearings, particularly, 31st and 32nd hearings, the Arbitral Tribunal has recorded the minutes as follows:-

1. “At the outset, the Tribunal brought to the notice of both the parties that substantial amounts against fees ad expenses of the Arbitrators have not been paid by them. The claimant was asked, in case the respondent fails to make payment for fees for claims, whether the claimant would make the payment on behalf of the respondent, which would be granted to him in the award. The