P.C. :

By this petition, the petitioner has approached this Court, challenging an order dated 19.01.2023 passed by an arbitral tribunal consisting of two arbitrators and one presiding arbitrator, all being former Judges of this Court.

2. By the impugned order, the arbitral tribunal has exercised power under Section 38(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Arbitration Act’), to terminate the arbitral proceedings as regards the claims of the original claimant i.e. the petitioner in this petition, with a further direction that the counter-claim filed by the respondents shall proceed in accordance with law.

3. The aforesaid order has been passed on the basis that the petitioner failed to make regular deposits in terms of orders passed from time to time by the arbitral tribunal, as a consequence of which, at the point in time when the impugned order was passed, the petitioner was admittedly in arrears of payment of fees to the extent of Rs.9,00,000/- per Member of the tribunal.

4. The documents placed on record show that as far back as on 29.11.2018, at the first sitting of the arbitral tribunal, the schedule for completion of pleadings as well as fees and expenses, including deposits to be made by the parties, was fixed and it was expected that the parties would abide by such directions. Record further shows that while certain payments were indeed made by the petitioner from time to time, there was a shortfall on many occasions and despite reminders being recorded in the orders passed by the tribunal, the petitioner fell short by the aforesaid amount per Member of the tribunal.

5. One of the questions that would arise for consideration in this proceeding is, as to whether the present petition is maintainable and as to what could be the remedy available to an aggrieved party like the petitioner when the arbitral proceeding stands terminated under Section 38(2) of the Arbitration Act.

6. In that context, Mr. Atul Damle, learned senior counsel appearing for the petitioner relies upon judgement of the Supreme Court in the case of Deep Industries Limited Vs. Oil and Natural Gas Corporation Limited and another, (2020) 15 SCC 706. He contends that since there is no remedy available in the Arbitration Act to challenge such an impugned order, the present writ petition is certainly maintainable.

7. In fact, the learned senior counsel appearing for the petitioner also relies upon judgement of the Supreme Court in the case of Oil and Natural Gas Corporation Vs. Afcons Gunanusa JV, 2022 SCC Online SC 1122. By placing reliance on the said judgement, the learned senior counsel for the petitioner emphasized upon party autonomy contemplated in the Arbitration Act and that the arbitrators ought not to impose schedule of fees / deposit upon the parties. It was emphasized that substantial payments were already made by the petitioner and in such circumstances, the drastic impugned order passed by the arbitral

tribunal deserves to be set aside.

8. In the process of justifying the grounds raised in the present petition, the learned senior counsel for the petitioner referred to Sections 31, 31-A and 38 of the Arbitration Act.

9. On the other hand, Mr. Shekhar Jagtap, learned counsel appearing for the respondents submits that the present writ petition ought not to be entertained as the petitioner has failed to make out any exceptional circumstances for this Court to invoke writ jurisdiction. It is submitted that on a proper interpretation of Sections 31, 31A and 38 of the Arbitration Act, it cannot be said that the arbitral tribunal committed any error in passing the impugned order.

10. It is further submitted that the petitioner admittedly failed to deposit amounts from time to time, despite chances having been granted and undertakings having been given to the arbitral tribunal, and therefore, the petitioner cannot raise any grievance with regard to the impugned order passed by the arbitral tribunal. It is submitted that