$~68 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 07.10.2024 + O.M.P.(MISC.)(COMM.) 788/2024 ICRI CORPORATES PRIVATE LIMITED .....Petitioner Through: Mr. Sunil Choudhary, Adv.

versus SHOOGLO NETWORK PRIVATE LIMITED (PREVIOUSLY OMG NETWORK PRIVATE LIMITED) .....Respondent Through: Mr. Mayank Arora and Mr. Abhnav Agrawal, Advs.

CORAM:

HON'BLE MR. JUSTICE SACHIN DATTA SACHIN DATTA, J. (ORAL

1. The present petition has been filed under Section 39(2) of the Arbitration and Conciliation Act, 1996 (hereafter the A&C Act) assailing an order dated 12.08.2024, passed by the learned Arbitrator, disposing of an application filed by the claimant/respondent under Section 31A read with Section 38 of the A&C Act.

2. The respondent/claimant instituted the present arbitral proceedings seeking a claim amounting to Rs.44,69,864/-,along with interest @ 24% p.a. 3. The claimant filed its statement of claims dated 10.07.2019, and the respondent filed its statement of defence dated 29.08.2019. Along with its statement of defence, the respondent also filed a counter-claim seeking recovery of Rs.2 crores along with pendent lite and future interest.

4. By order dated 29.08.2019, the arbitral tribunal determined the arbitral fees to be Rs.6,02,747/-. It is notable that the minutes of the second hearing before the learned arbitrator held on 10.07.2019 records as follows:

“The Fee of the Arbitrator shall be as per the Fourth Schedule of the Arbitration and Conciliation Act 1996, and the same shall be shared by both the parties equally. The administrative expenses towards arbitration shall be shared in equal proportion by both parties, subject to further directions in the matter.”

[Emphasis supplied]

5. Vide minutes of the proceedings held on 29.08.2019, it was recorded as follows:

“As per the statement of claims, the claimant has raised a claim of Rs.44,69,864/- and in the counterclaims, the Respondent has raised a claim of Rs.2,00,00,000/- thus aggregating to Rs.2,44,69,864/- (Rupees Two Crore Forty-Four Lacs Sixty Nine Thousand Eight hundred and Sixty Four only).

As agreed, the Fee of the Arbitrator shall be as per the Fourth Schedule of the Arbitration and Conciliation Act 1996 and the same shall be shared by both the parties equally. As per the Fourth Schedule, the Fee of the Arbitrator comes to Rs.6,02,747/- which has been calculated while considering the aggregate of the claims and the counter claims. Let the above Fee of the Arbitrator be paid by the parties before the next date of hearing to be shared equally. Share of each of the parties comes to Rs.3,01,373/-. The account details of the Arbitrator are as under:

PAN No.AHLPB3274D A/c No.15530100009320 in the name of Paritosh Budhiraja UCO Bank, Delhi High Court Branch, RTGS/NEFT IFS Code: UCBA 0001553”

[Emphasis supplied]

6. The aforesaid proceedings reveal that the fees was intended to be fixed by adopting the IVth Schedule of the A&C Act, 1996, and it was on that basis that the fee payable to the arbitrator was calculated. The parties were consequently directed to pay 50% each of the said fees i.e.

Rs.3,01,373/- each.

7. The application under Section 31A read with Section 38 of the A&C Act came to be filed by the respondent claimant before the learned Sole Arbitrator on the basis that in terms of the judgment of Supreme Court in Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV 2024 4 SCC 481, in terms of the IV^th Schedule of A&C Act, 1996, the calculation of arbitral fees ought to have been made separately for claims and counter- claims. In this regard, reliance is placed on para-187 (iii) and 142 (iii) of the judgment of Supreme Court (supra) which reads as under:

“142. Consequently, on the basis of the above analysis, the following principles emerge:

…

(iii) The Arbitration Act considers claims and counterclaims to be independent proceedings since the latter is not contingent upon the former. Rather, it protects the right of any respondent to raise a counterclaim in an arbitration proc