Point of Law: Section 2 (d) of the Act the Arbitral Tribunal is defined either as a sole arbitrator or a Panel of arbitrators and the language used in Sub Section (14) of Section 11 is for "determination of Fees of the Arbitral Tribunal

JUDGMENT :

1. Heard Shri Sudeep Seth, learned Senior Counsel assisted by Shri Sudeep Kumar and Shri Mohit Jauhari, for the petitioners and Shri Gaurav Mehrotra alongwith Mr. Tushar Mittal appearing for the respondents.

2. The petitioners have challenged two orders of the Arbitral Tribunal dated 23.06.2021 filed as Annexures-1 and 2 to the writ petition, in so far as they relate to the determination of Fee and Administrative expenses payable to each of the Arbitrators in the arbitration proceedings between GVK EMRI (U.P.) Private Limited and State of U.P. and its assigns and they pray that a direction be issued determining the Fee and expenses of the Arbitrators which are appropriate in the matter.

3. It has been submitted by the learned counsel for the petitioners that as per the Agreement dated 21.12.2011 between the petitioners and the respondents, on a dispute arising between the parties. They can invoke the arbitration clause under Article 18 (2) of the contract. From the Amended statement of Claim filed by the claimants on 24.09.2020 a sum of Rs.197,40,15,637/- (One hundred and Ninety Seven Crores thirty four lacs fifteen thousand and six hundred and thirty seven) had been prayed whereas the petitioners who are the respondents in the Arbitration proceedings filed a counter claim on 16.01.2021 wherein a sum of Rs.230,45,74,000/-(Two Hundred and Thirty crores Forty Five Lacs and Seventy Four Thousand) was prayed as a counter claim against the claimant. It was agreed between the parties that one Arbitrator shall be appointed by each of the parties and a third Arbitrator shall be appointed by the two Arbitrators on their own, consequently, the Arbitral Tribunal consisted of three Hon'ble retired Judges of this Court. In the preliminary hearing held for the purpose of determination of fee and administrative expenses, the Fee has been determined by the Arbitral Tribunal @ 0.125% of the Total Sum in Dispute with claim and the counter claim taken separately and additionally a fee @ 10% of the said amount has been determined towards Secretarial and Administrative expenses in connection with the Arbitration proceedings (to be shared equally by the parties). As per the orders passed by the Tribunal which are impugned in this petition, the parties have been directed to pay Rs.56,34,735/-(Fifty Six Lacs Thirty Four Thousand Seven Hundred and Thirty Five) which includes the amount of Rs.51,22,487/-(Fifty One Lacs Twenty Two Thousand Four Hundred and Eighty Seven) towards fee of the Arbitration individually and Rs.5,12,248/-(Five Lacs Twelve Thousand Two Hundred and Forty Eight) towards Secretarial and Administrative expenses to each of such Arbitrators.

4. Learned Senior Counsel Shri Sudeep Seth appearing for the petitioners has pointed out that the order passed by the Tribunal for determining its Fee dated 23.06.2021 is clearly based on erroneous premises. He has read out Annexure No.1 detailing the determination of fee, and pointed out that the Arbitral Tribunal has referred to Sub Section (14) of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as Act) as amended from time to time, and thereafter observed that Sub Section (14) of Section 11 refers to determination of fee of the Tribunal, in case Rules have been framed in this regard by the High Court. The High Court having not framed any Rules under Sub Section (14) of Section 11 of the Act, therefore, it was open for the Tribunal to ignore the Fourth Schedule altogether.

5. Learned counsel for the petitioners has read out from the Act itself Section 11 thereof, which is a part of Chapter-III which relates to composition of Arbitral Tribunal and has referred to Section 11 (2) thereafter which says that subject to Sub Section (6) the parties are free to adopt any Procedure for appointing the Arbitrator or the Arbitrators. Sub-Section (6) relates to Arbitral Tribunal being appointed either by the Supreme Court or by the High Court in case of failure of the