ORDER :

1. Heard Sri Rajiv Shanker Dvivedi learned counsel appearing for Sri Y.Rama Rao for the petitioners and Sri D.Prakash Reddy, learned senior counsel appearing for Sri M.Pranav for respondent.

2. Petitioners have entered into concession agreement on 18.8.2007 with respondent for execution of work of designing, construction, development, finance, operation and maintenance of eight lane access controlled expressway under Phase II-A programme of the Outer Ring Road to Hyderabad from Tukkuguda to Shamshabad on Build Operate and Transfer (BOT) basis. Clause 39 of the concession agreement dated 18.8.2007 provides for resolution of disputes. Clause 39.2 provides for referring unresolved dispute to a Board of Arbitrators comprising three Arbitrators, out of which, each party shall select one Arbitrator and third Arbitrator should be appointed in accordance with the Rules of Arbitration.

3. According to respondent, petitioners are required to pay more than Rs. 12 crores and as dispute was not resolved amicably, respondent took recourse to Clause 39.2 to appoint a retired Judge of this Court as Arbitrator. Petitioners appointed a Retired Chief Engineer, Roads and Buildings Department as their nominee. Both Arbitrators could not come to an agreement regarding appointment of third Arbitrator. In those circumstances, respondent herein filed Arbitration Application No. 88 of 2021 before this Court under Section 11 (5) & (6) of the Arbitration and Conciliation Act, 1996 (for short the Act, 1996). As both parties left it to the Court to decide about third Arbitrator, by order dated 12.8.2021, the then Hon’ble Chief Justice of this Court appointed Hon’ble Sri Justice Challa Kodanda Ram (Retired) as umpire. Accordingly, the arbitral proceedings commenced.

4. It appears on 11.2.2022 order No. 5 was passed by the Arbitral Tribunal regarding payment of fee to the Arbitrators. On 10.9.2022, the th sitting of the Arbitral Tribunal was held wherein the Tribunal passed Order No. 9. From the reading of the said order, it appears, earlier, parties were asking for adjournment on the ground that they were negotiating for settlement. Again on 10.9.2022 request was made for further adjournment of Arbitral proceedings on the same ground. The Arbitral Tribunal, while acceding to the request, granted adjournment for two months for reporting settlement, subject to condition that both parties should deposit fee of the members in terms of Order No. 5 dated 11.2.2022 within two weeks from that date. The Tribunal further observed that if parties fail to deposit the fee as directed, the Arbitral Tribunal proceedings should stand terminated as it would be construed that parties have no interest for proceeding with present arbitral proceedings.

5. Second petitioner herein filed I.A.No. 1 of 2023 before the Arbitral Tribunal under Section 32 of the Act, 1996 praying the Arbitral Tribunal not to proceed further as mandate of the Arbitral Tribunal was already terminated vide orders dated 10.9.2022. On the scope of application and relief to be granted in the said application, there was difference of opinion among the Arbitrators. The Presiding Arbitrator and one Co-Arbitrator rejected the application and held that the Arbitral Tribunal would proceed to hear the arguments on merits and decide the dispute accordingly. In the dissenting opinion, the other Co-Arbitrator held that arbitral proceedings stood terminated under Section 32 of the Act, 1996, therefore, mandate of the Arbitral proceedings also stood terminated. Aggrieved by the majority decision of the Arbitral Tribunal, this revision is preferred.

6. According to Sri Rajiv Shanker Dvivedi learned counsel appearing for petitioners, Order No. 9 of the Arbitral Tribunal dated 10.9.2022 is very specific, that in the event of non deposit of the fee as directed by the Tribunal by either of the parties, the Arbitral proceedings stand terminated. Once Arbitral proceedings are terminated, it is no more permissible for the Ar