JASMEET SINGH, J (ORAL)

1. This is a petition filed under section 39(2) of the Arbitration and Conciliation Act, 1996 (“1996 Act”) seeking directions to the learned Sole Arbitrator i.e. Sh. Rajiv Jain to pass and deliver the Arbitral Award.

2. This Court vide Order dated 24.11.2020 passed in Arb.P. 278/2020 appointed the Sole Arbitrator. Relevant paragraphs reads as under:-

“5. In these circumstances, the petition is entitled to succeed and accordingly, Mr. Rajiv Jain, Advocate, (Mobile No: 9810631437) is with the consent of the parties, appointed as the sole arbitrator for adjudication of disputes in relation to the aforesaid agreement.

6. Before commencing proceedings, learned Arbitrator will ensure compliance of Section 12 of the Act. The fee of the learned Arbitrator will be determined in accordance with Schedule IV of the Act.”

3. A perusal of the above quoted paras clearly shows that the fees of the learned Sole Arbitrator will be in accordance with Fourth Schedule of 1996 Act.

4. My attention has been drawn to the final computation of the learned Sole Arbitrator as recorded in its order dated 12.08.2023 which reads as under:-

5. The learned Sole Arbitrator in the said order has further recorded as under:-

“4. The computation of fee is based on the judgement dt. 10.7.2020 of the Delhi High Court in Rail Vikas Nigam Ltd. Vs Simplex Infrastructures Ltd. in case no. OMP(T)(COMM) 28/2020. As per this judgement, the upper limit of fees payable to a sole Arbitrator under the Fourth Schedule of the A&C Act is Rs. 62,34,375 (Rs. 49,87,500 x 1.25). This interpretation of the Fourth Schedule of the A&C Act was prevalent on 24.11.20 when this arbitration matter was assigned by the Delhi High Court to AT and on which basis the proceedings had been conducted. The Supreme Court judgement dated 30.8.22 in ONGC vs Afcons Gunanusa JV (refer para 200 in 2022 SCC Online SC 1122) is a subsequent judgement and applicable prospectively.”

6. The learned Sole Arbitrator was of the view that since he was appointed prior to the judgment of ONGC Ltd. v. Afcons Gunanusa JV, (2024) 4 SCC 481, the judgment of Rail Vikas Nigam Ltd. v. Simplex Infrastructures Ltd., 2020 SCC OnLine Del 2101 would be applicable as far as computation of fee is concerned. I am unable to agree. The judgment of Rail Vikas Nigam Ltd. (supra) was under challenge before the Hon’ble Supreme Court and in ONGC Ltd. (supra), the same was set aside on 30.08.2022. Hence the date which the order dated 12.08.2023 was passed calculating the Arbitrator’s fee, the judgment of Rail Vikas Nigam Ltd. (supra) was no longer good law. Therefore, the learned Sole Arbitrator erred in relying upon a judgment which had already been set aside.

7. In ONGC Ltd. (supra), the Hon’ble Supreme Court has observed as under:-

“G. Conclusion

G.1. Findings

187. We answer the issues raised in this batch of cases in the following terms:

187.1. Arbitrators do not have the power to unilaterally issue binding and enforceable orders determining their own fees. A unilateral determination of fees violates the principles of party autonomy and the doctrine of the prohibition of in rem suam decisions i.e. the arbitrators cannot be a judge of their own private claim against the parties regarding their remuneration. However, the Arbitral Tribunal has the discretion to apportion the costs (including arbitrators' fee and expenses) between the parties in terms of Section 31(8) and Section 31-A of the Arbitration Act and also demand a deposit (advance on costs) in accordance with Section 38 of the Arbitration Act. If while fixing costs or deposits, the Arbitral Tribunal makes any finding relating to arbitrators' fees (in the absence of an agreement between the parties and arbitrators), it cannot be enforced in favour of the arbitrators. The Arbitral Tribunal can only exercise a lien over the delivery of arbitral award if the payment to it remains outstanding under Section 39(1). The party can approach the Court to review the fees demanded b