JUDGMENT :

(Prayer: These Petitions have been filed under Section 14 and 15 r/w Section 11 of the Arbitration and Conciliation Act 1996 praying to terminate the mandate of the second Respondent as the Sole Arbitrator in Arbitration proceedings titled as “M/s.SAS EPC Solution Private Limited vs. M/s. Clarke Energy India Pvt. Ltd.” arising out of contracts dated 08.09.2011 (in respect of Engine I and II) executed between Applicant and Respondent No.2 and reconstitute the arbitral tribunal by substituting the Sole Arbitrator.)

1. Interesting questions with regard to the scope of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 (the Arbitration Act) arise for consideration in these two petitions in respect of connected but separate arbitral proceedings. As a preliminary issue, it should be noticed that the arbitral proceedings commenced after 23.10.2015 and, therefore, Act 3 of 2016 would apply.

2. The petitioner herein is the respondent in the above mentioned arbitration proceedings, which are underway before a sole arbitrator (the Arbitrator) appointed with the consent of both parties. The current stage of proceedings is that the claimant has filed its proof affidavit and the next hearing is scheduled in early December 2021 for the cross examination of C.W.1.

3. The petitioner asserts that the Arbitrator is de jure unable to perform his functions. Such assertion is made partly on the basis that the petitioner has justifiable doubts as to the independence or impartiality of the Arbitrator and partly on the basis that the Arbitrator demanded exorbitant fees in contravention of the Fourth Schedule of the Arbitration Act. These contentions are refuted by the first respondent. The first respondent submits that the petitions are not maintainable under Sections 14 and 15 of the Arbitration Act. According to the first respondent, there is no basis to the assertion that the Arbitrator has become de jure unable to perform his functions. As regards the fixation of fees, the first respondent submits that the parties agreed to the fixation of fees in accordance with the Fourth Schedule of the Arbitration Act. However, the first respondent contends that the learned Arbitrator misapplied the Fourth Schedule and thereby charged much more than the amount that would be payable if the Fourth Schedule were to be applied correctly.

4. Oral submissions were made on behalf of the petitioner by Mr.Vijay Narayan, Senior Counsel, assisted by Mr.K.Gowtham Kumar, learned counsel; and on behalf of the first respondent by Mr.K.Harishankar, learned counsel.

5. Mr.Vijay Narayan opened his submissions by contending that the present petitions are maintainable under Sections 14 and 15 of the Arbitration Act. By drawing reference to Sections 12 and 13 thereof, he submitted that a challenge to an arbitrator is permissible under Sections 12 and 13 if justifiable doubts as to the independence or impartiality of the arbitrator concerned arise in circumstances specified either in the Fifth or Seventh Schedule of the Arbitration Act. According to him, the grounds on which the present petitions are filed are outside the scope of the Fifth and Seventh Schedules. Therefore, a challenge could not have been made before the Arbitral Tribunal.

6. By contrast, he submitted that Section 14 becomes applicable if the Arbitrator becomes de jure or de facto unable to perform functions. In the case at hand, he submitted that the material on record justifies the inference that the apprehension of bias on the part of the petitioner is reasonable. In support of the said submissions, reference was made to the orders passed by the learned Arbitrator. An order dated 02.11.2020 was passed by the Arbitral Tribunal on an application filed by the first respondent under Section 17 of the Arbitration Act. By such order, the first respondent was directed to pay a sum of Rs.13,72,354/- to the petitioner. This order was not complied with by the first respondent. In spite of such non-compli