M/S Jivanlal Joitaram Patel v. National Highways Authority of India

16. In the present case, the learned Single Judge had set aside the award vide judgment dated 07.03.2014. Indeed,the Respondent carried the matter in appeal before the Division Bench. Even if we were to assume for the sake of argument, without expressing any opinion either FAO(OS)(COMM.)70/2017 Page8ofl[6] way on the correctness ofthis assumption,that the appeal was in continuum ofthe application Under Section 34 for setting aside of the award and therefore, the Division Bench could be requested by the party to the arbitral proceedings to exercise its discretion Under Section 34(4) of the Act, the fact remains that no formal written application was filed by the Respondent before the Division Bench for that purpose. In other words, the Respondent did not make such a request before the learned Single Judge in the first instance and also failed to do so before the Division Bench rejected the appeal ofthe Respondent.

17. In the case of MMTQ;(supra), the Madras High Court, while deahng with'thd^^p^ ofSection 34(4)of the Act in paragraph;; thereported judgment, observed thus: ? •. ■ fCJ Section 34(4)6fthe new Act, )iQei^.sridi-f pthcribe any condition precedent ofi\ tkd)sU^tdpce of the matter but prescribes threfprbcediirgl conditions namely that thereshouldhednfapp}^^ UnderSection 34(1) ofthe ne\pkct-dfifffM should emanate from apart)!h.n$0t§$ld0'i30^idersitappropriate to invoke ikefd)ykf(0nderSfct 34(4)ofthe new Act.

18. Again,in paragraph 22 (e)(IV) of the reported judgment,it obsqr^d'^t£u5''.^ U ^ But under the 1996'Act, me Court has only two sets ofpowers after the award ispronounced viz.,

(i) to set aside the award Under Section 34(2);

(ii) to adjourn the proceedings to enable the arbitral tribunal to resume the proceedings or take such other action as in the opinion of the tribunal will eliminate the groundsfor setting aside the arbitralaward. FAO(OS) (COMM.)70/2017 Page9of16 =23

19. In the case ofRaitani Engineering Works Pvt. Ltd. (supra), the Gauhati High Court, placing reliance on the decision in MMTC(supra)in paragraph 8 ofits decision, observed thus: But unfortunately in the present case, the award given by the arbitration panel on 13.07.2012 was quashed in its entirety and the appeal Under Section 34 is no more pending before the Court. Therefore, invoking the powers conferred under Sub-section' (4)ofSection 34 ofthe Arbitration Act to facilitate the arbitration panel to take rectificqtory steps is hot an option in this matter. Moreover,neither of the contesting party in this dispute have appliedfor an additional award and therefore it mayft^^ to.direct the arbitratioppahektoife-de^^^ the six un-decided claims oftheidnirqctor j Ivv

20. The Division:,!Bepch of, the High Court of Kamataka in the c%eiofBh^^^ Development Limited (Supra) has,je^0unded|that the power of the Court Under Section 8'4 Ofrthe |(ct is not to remand the matter to the ArbiiraLVifrilD!hM^^^ setting aside the arbitral award. 2 23' \ t.Vr,*. D

21. A priori, rtl^muM2<fDlIowrtH^^^^ Division Bench committed manifest.error&ih^issuing direction in the concluding part ofthe impugnedjudgment,as reproduced hereinbefore in,paragraph No.7. Such,direction could not have been issuedrih7the;;fa,et situatmhiJofthe present case. The impugned direction'' suffers• from the vice of jurisdictional error and thus cannot be sustained. We have no-option butto quash and set aside the same.

7. In somewhat similar circumstances,the finding ofa learned Single Judge of this Court was upheld by the Division Bench in Steel Authority ofIndia Limited Vs.Indian CouncilofArbitration 2016 reported in 2016SCC Online 1921. Paras 4 and 5 deals in short FAO(OS)(COMM.)70/2017 Page10of16 4) with the facts of the case. We deem it appropriate to reproduce Paras 11 to 18,which read as under: "11. It is no doubttrue that this Court normally does not enter into the merits ofthe ease after recording a finding that the petition itself is not maintainable. However,as is evident from Para 44 ofthe order under appeal,the issues on merits ofthe case were pressed by the leamed counsel appearing for the appellant and thus the leamed Single Judge had proeeeded to consider the issues on merits of the case. Hence, it is not open to the appellant now to contend that the Ibarhed Single Judge should not have gone into the merits ofthe case.

12. Having held.so,vit;is::hecessary for us to consider the further contention-ipfthe^appellan^^^ by appointing the second Arbitratdrtthe res^^^^^ 1 has usurped thejudicial powep^der ofthe Arbiti^tion and Conciliation Act;|;;;|v"

13. Sectionll(6)^bf thej^ibi^ and Conciliation Act enables a partyAoi.request jhe Chief Justice or any person or institutioA^i^ignateb him to appoint an Arbitrator where'^'an -'Arbfe^^^ could not be "'j''. '1^ 'A;''*."!- i] ^''r' constituted underphe'.pitcumstdhCes^^^ therein. In the present casebSe.^J^j|^J|Qti!iBltause itselfempowered the respondentNo.4 td'appbirit-a second arbitrator in case the other party fails to nominate the second Arbitrator within 30 days,.The respondent No.jT;,has thus followed the procedure preisdpb^ Since the agreement itself provides"'the procedure to be adopted where the other party fails to respond,Section 11(6)is not attracted.

14. The leamed Senior Counsel sought to distinguish McDermott International Inc. vs. Bum Standard Co.Ltd. & Ors.:2006(6)SCALE 220,contending thatthe issue as to whether there could be multiple arbitration proceedings on the self same cause of action did not arise for consideration in the said ease. In support of his submission that repeated arbitrations on the same cause of FAO(OS) (COMM.)70/2017 Page 11 of16 action are not permissible under law, the learned Senior Counsel relied upon Dolphin Drilling Ltd.vs.ONGC Ltd.: (2010)3 see 267.

15. We do not find any substance in the said eontention. In the present case the award dated 7/10th May,2010 was set aside by the Court on a petition filed under Section 34 of the Arbitration and Conciliation Act. Consequently, the dispute between the parties stood revived. Since Clause 57 of the Charter Party provides that "all disputes arising,under the Charter Party" shall be settled by way of arbitration following the procedure speeified therein,: the parties are at liberty to invoke the arbitration clause for settlement ofthe dispute which stood revived. Such a course,:'according to us, does not amount to repeated/multiple drbitratidns-a^^^^^ to be contended by the learned Seriiot Coun^bKiptthe.appellant. L;:?

16. It may be tmb-thatihJlMcD^^^ Intemationallnc. vs. Bum Standard(jEo:;Ltd:;^:fe^^ (Supra), it was not expressly held thatiiin^thef,eYerit^ the Arbitral award being set aside by thef;Gqurt:'|inH,e^ Seetion 34,the parties ean same consequent to the parties are free to bringthe arbit^^tiblii}i|gal|i.. i

17. The deeisions ofthe Division Benches ofthis Court in National Highways Authority.-of India vs. ITD Cementation Indii|Ltdi^:=i2()0% 431 (DB)and BSNL vs. Cankra ^I^H6§"']^Oi[6]) DLL 253 (DB) holding that the power to remit disputes back to the Arbitral Tribunal is envisaged in Section 34 (4) of the Arbitration and Coneiliation Aet, 1996 cannot be understood to have laid down that in the absence of such remand by the Court, the parties are preeluded from invoking the Arbitration clause for settlement ofthe same dispute. As already mentioned above, we are ofthe view that in the event ofthe Arbitral award being set aside by the Court under Section 34, the dispute between the FAO(OS) (COMM.)70/2017 Page12of16 parties stands revived and the same can be settled in tenns ofthe Arbitration clause under the agreement.

18. While considering the question whether a claim is barred by resjudicata needs consideration in a proceeding under Section 11 ofthe Arbitration and Conciliation Act, it was held in Indian Oil Corporation Limited vs. SPS Engineering Limited:(2011)3 SCC 507 that the question whether the claim is barred by the principles of res judicata has to be examined by the Arbitral Tribunal since a decision on res judicata requires consideration of the pleadings as also the claims/issues/points and the award in the first round of arbitration, in juxtaposition with the pleadings and the issues/ppints/claims in the second arbitration. It was-also,:held that there can be no threshold consideration and rejebtipifbfa^^ the grpund pfres judicata while cpnsidefing ari-dppl.i^ under Sectipn 11 ofthe Arbitratipn and Cdhciiiatjo^

8. In the case ofAKN andcjinpikep J^^ A^ and Others reported in (2015) SGCA 63, a decision -rendered by Singapore Court of Appeal, wherein it wasv'hrf^ithifchajwing those cases where the arbitration clause has;;]^'eeh«.3|eMjpi^t5|)j]hi^g or notin existence and that alone is a basis'fef*'s|!l^gti|iStS^''ihe award, the Arbitration Agreement would generally survive post the setting aside of an award. Paras 51 and'^2a-ead:u§mnde^>^^ "51 There is simply nothing to warrant the conclusion that where an award has been set aside,the tribunal which made that award would somehow resume the ability and mandate to determine afresh the matters that had been dealt with in the award.But,as alluded to above,this goes to the mandate ofthat particular tribunal. The fact that the award has been set aside would not,in and ofitself, affect FAO(OS)(COMM.)70/2017 Page13of16 2") the continued validity and force of the arbitration agreement between the parties,save in the situation where the award was set aside on the ground that there was no arbitration agreement between the parties. In LW Infrastructure (HQ, Belinda Ang J described this as "Situation and observed as follows(at[48]): Similarly, where an arbitral award is "beyond power in the sense that the tribunallacks jurisdiction to deal with the dispute altogether (for instance, where there is no valid agreement to arbitrate, where a party to the arbitration ■, agreement was under some incapacity or where the arbitral tribunal has not beenproperly appointed)... that would clearly be the end of the enquiry and the tribunal would obviously not be vested with jurisdiction to deal with the matter merely because the awardhas been set aside by the court.

52 We agree with this analysis. But save in this situation, the arbitration agreement will generally survive the setting aside of an award. On this basis, it may be open, subject to certain other limitations, to which we will briefly turn, for aparty which has successfully obtained an award in the arbitration and then seen that set aside by the court, to start a fresh arbitration. This follows given that: (a) The dispute has not yet been resolved since the awardhas been set aside; and (b) The arbitration agreement remains binding on the parties as to how they will resolve their disputes." FAO(OS) (COMM.) 70/2017 Page14 of16

9. Admittedly, there is no express Provision in the 1996 Act except Section 34(4)of the Act which allows the award to be remitted back at the instance ofthe parties subject to the condition that the award has not been set aside by the Court. In the case ofKinnari Malik(Supra)where a Division Bench had suo moto while setting aside the award remitted the award for reconsideration by the Arbitral Tribunal,the order was set aside remitting the award. We may note that Section 43(4)ofthe Act which is reproduced below would also give an indication,that in case of a fresh arbitration, where the arbitral award hds;been;set aside,the period between the commencementofthe ariitratip oforderfrfthe Court, shall be excluded. The,parties^ entitled to take recourse to the provisions of Sectiph;43/'(4j;p^^^ Act and all pther legal V,' % objections,which may beayailabl^tpfthem in accordance with law. Section43(4)ofthe Ae|r^ads^as(|hder'i^ "Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date ofthe order ofthe Court shall be excluded in computing the time prescribed by the Limitation Act,1963(36 of1963),for the commencement ofthe proceedings (including arbitration) with respect to the dispute so submitted."

10. Parties agree that they would rely upon the pleadings urged earlier and some additional plea which may be necessary on account of change in circumstances and legal objections may be required to be taken. Accordingly,the present appeal is dismissed. FAO(OS)(COMM.)70/2017 Page15of16

11. Justice Manmohan Sarin,Former ChiefJustice ofJ&K High Court, Mobile No.9818000210 is appointed as the Sole Arbitrator, who would decide the claims and counter claims arising out of the Agreement dated 17.11.2004 between the parties. He shall fix his fee as per the 4^''Schedule ofthe Actof1996. The legal objections ofboth the parties are kept open.

12. Accordingly the present appeal is disposed of.

13. Copy of this order be sent to Justice Manmohan Sarin, Former ChiefJustice ofJ&K High Court.- JANUARY 23,2018 gr V /■/:SipptTA I G.S.SISTANI,J I G HGAL,J I ?■>. t' FAO(OS) (COMM.) 70/2017 Page16 of16 * IN THE HIGH COURT OF DELHI AT NEW DELHI % JudgmentReserved on,: January,2022 JudgmentDelivered on: March,2022 + FAO(OSKCOMMI 70/2017 JIVANLALJOITARAMPATEL... Appellant Through: Mr. Ritin Rai, Senior Advocate with Ms.Aditi Rao,Advocate.

VERSUS

NATIONAL HIGHWAYS AUTHORITY OF INDIA... Respondent Through:. Mr. Arun Kumar Verma, Senior Advocate with' \ 'lyL Gupta and ■J '. Ms.Anchal Seth, Advocates. CORAM: •; HON'BLE MR.

JUSTICE VIPI]| SANGHI HON'BLE MR. JUSTiCk AMTTii^ JUDGEMEh^OttUnfe^COURT CM No.14819/2021; T.

1. This appeal was disposed of by a judgment dated 23"^*^ January, 2018 passed by the Division Bench - with the consent of the parties. It was agreed that claims No.l and 2 of the respondent, and counter claims No.2, 5, 7-10 and 15 of the appellant be adjudicated afresh, and that a sole Arbitrator may be appointed instead of a three-member Arbitral Tribunal, in order to save time and costs. The relevant extracts from the aforesaid judgment are set out below: FAO (OS)(COMM) 70/2017 Page 1 of13 "10. Parties agree that they would rely upon pleadings urged earlier and some additional plea which may he necessary on account ofchange in circumstances and legal objections may be required to be taken. Accordingly, the present appeal is dismissed.

11. Justice Manmohan Sarin, Former Chief Justice of the J&K High Court, Mobile No. 9818000210 is appointed as the Sole Arbitrator, who would decide the claims and counter claims arising out ofthe Agreement dated 17.11.2004 between the parties. He shallfix hisfee usper thef'Schedule ofthe Actof1996. The legalobjections ofbothparties are keptopen.

12. Accordingly thepresentappeal is disposed of." (Emphasis Supplied)

2. Pursuant.to the above judgment,;the Arbitral Tribunal- entered reference on 28'*^ February,2018. In thecPrpcedural Order dated 29^^ April, 2019, it was noted the totah amount of claim was Rs.33,53,27,205/- (inclusive of interest @ 18% per annum from OE' October, 2006 to 28'^ February, 2018), and the total amount of counter claim, including interest, was Rs.l[1],43,40,050/-.

3. Vide Procedural Order dated 2i-August,2020,the Arbitral Tribunal fixed the arbitral fees as Rs.40,44,795/- in terms ofratio ofthejudgment of this Court in Rail Vikas Nigam Vs. Simplex Infrastructure Ltd., MANU/DE/1367/2020,and both the parties consented to the'fixation ofthe aforesaid arbitral fees. At the bearing before the Arbitral Tribunal on 26'^ November, 2020, the counsels were requested to address the Arbitral Tribunal on the issue whether counter claim(s) is/are to be included in the expression"sum in dispute" appearing in the 4^*^ Schedule ofthe Arbitration and Conciliation Act,1996(hereinafter 'Act'), or the amountthereofis to be separately considered in terms ofproviso to Section 38(1)ofthe Act. FAQ(OS)(COMM)70/2017 Page2of13

4. After hearing both parties, the Arbitral Tribunal passed the order dated 27^^ January, 2021 holding that the applicable arbitral fee, in the present case has to be assessed separately for the claim, and counter claim. While arriving atthis conclusion,the Arbitral Tribunal noted thefollowing:

(i) Initially it was agreed between the parties thatthey do not need to file fresh pleadings or lead evidence, but as the arbitration progressed need for further evidence arose and parties filed fresh documents and directions for production of records were given by the Arbitral Tribunal.

(ii) Proviso to Section 38(1) of the Act carves out a specific exception providing for Arbitral Tribunal tp fix a separate fee for claims and counterclaims..

(iii) Counter claim would mostly be founded upon an independent cause ofaction,and can continue eyeh;ifithe main suit fails, or is withdrawn. i • ^. I '

(iv) Separate court fee is required to he paid on the amount of counter claim. • /' i" ' 't:

(v) Adjudication of claims ahd;-counter cMms mostly require additional or separate evidence and arguments.

(vi) Claims in a particular case may cross the:;cpiling provided under the

4^*^ Schedule to the Act and if'Counter claims are filed thereafter, and they are taken together with a claim,the Arbitral Tribunal would have to decide the counter claims as well as the.claims without any additional fee and this could not be the intention ofthe Statute.

(vii) Dictum of combining claims and counter claims for the purposes of determining fee under the 4*^^ Schedule could result in inequitable FAO(0S)(C0MM)70/2017 Page3of13 ^ •:- jh situations contrary to the express language of Section 38(1) of the Aet.

(viii) The aforesaid contentions were neither raised,nor eonsidered by this

Court in Delhi State Industrial Infrastructure Development Corporation Ltd. Vs. Bawana Infra Development Pvt. Ltd., 2018 see OnLine Del 9241.

(ix) A conjoint reading of Sections 38(1) and 31A ofthe Act leaves no doubt that arbitral fees and expenses can be fixed by the Arbitral Tribunal separatelyfor claims and counter claims.

(x) Even in terms of Rule 3 of Delhi International Arbitration Centre

(hereinafter 'DIAC ■) and Rule 30 of Indian Council of Arbitration's Rules of Domestic; and. Commercial Arbitration and Conciliation (hereinafter '5-Rw/ra'), claims and counter claims are assessed separately for cdlciilatipn of arbitral fee.

5. After making the above said/observations and fixing the arbitral fee separately for claims and counter Gkii^s;-;thb,Arbitral Tribunal gave liberty to the parties to approach this Gbui|iipf'lee Clarification in the matter of fixation of arbitral fees.

6. Aecordingly, the present application has been filed on behalf of the applicant/appellant seeking clarification with" regard to the fixation of arbitral fee.

7. Reply to the application was filed on behalf of the respondent, opposing the fixation of arbitral fee by the Arbitral Tribunal by taking the claims and counter claims separately.

8. We have heard the senior eounsels on behalf of the parties. It is the corimon submission on behalf of both the sides that the judgment of the FAO (OS)(COMM) 70/2017 Page 4 of13 J Single Judge of this Court in DSIIDC(supra) lays down the correct law with regard to fixation of arbitral fees under the 4^^ Schedule to the Act, when the Arbitral Tribunal is adjudicating a claim as well as counter claim. It is further submitted by the senior counsels that Sections 38(1)and 31A of the Act would come into play, only when the Arbitral Tribunal is itself fixing the fees,and not when the fees ofthe Arbitral Tribunal has been fixed bythe Courtin terms of4'^"Scheduleto the Act.

9. It is contended by the senior counsels that the reliance placed by the Arbitral Tribunal on the proviso to Rule 3 ofDIAC Rules is misplaced, as the said proviso fixes the fee only when a party fails to pay its share ofthe fees. _ 'V;

10. We have considered that aspects taken note of by the Ld. Sole Arbitrator in his order dated 27.01.2021, and the submissions ofLd. Senior Counsels, and also examined the decision above referred to. At the outset, we may refer to thejudgment in DSIIDC(supra). In the said case also, the Arbitral Tribunal was appoirited by;this Couif, and while appointing the Arbitral Tribunal, this Court that the fee of the Arbitral Tribunal shall be fixed in accordance with 4^*^ Schedule to the Act. The Arbitral Tribunal so appointed was of the vie;^ that "'sum in dispute" mentioned in the 4^*" Schedule would"be the amount of claim and counter claim taken separately, and not cumulatively. It was in that context that the petition was filed before this Court under Section 39(2)ofthe Act,seeking interpretation ofthe fee schedule provided in 4'^ Schedule to the Act,which came up for consideration before this Court. The Ld. Single Judge in DSIIDC(supra)came to the conclusion that"sum in dispute" would include FAO(OS)(COMM)70/2017 PageSof13 both-the claim and counter claim amounts taken cumulatively. In arriving atthis conclusion,the Single Judge relied upon; (i) 246^''Law Commission Report giving the rationale behind fixing ofa model schedule of fees, so that arbitration becomes a cost effective solution for dispute resolution in the domestic context.

(ii) Rules of various Indian as well as intemational arbitral institutions with regard to fixation ofarbitral fees.

(iii) the fee schedule set by DIAC where ''sum in dispute" is the cumulative value ofclaim and counter claim.

11. The relevant observations ofthe Single Judge in DSIIDC(supra) are setoutbelow: "14. Even in the general variance;:"Sum in dispute" shall include both claim and counter 'claim amounts. If the legislature intended to have the Arbitral Tribunal exceed the ceiling limit by charging seyarate^fee for claim and counter claim amounts, it would have proPided so in the Fourth Schedule. A?

15. Proviso to Section 38(1)ofthe Acttan only apply when theArbitralTribunalisnottd^tt^ieiein termsoftheFourth Schedule to the Act. It would not have any bearing on the interpretation to be put to the Fourth Schedule. It is noted that as regards fee even'under the Amended Act, the Arbitral Tribunal is free to fix its schedule of fee in an adhoc arbitration which is conducted without the intervention of the Court. Even where the Arbitral Tribunal is appointed by the Court under Section 11 ofthe Act, in absence ofrulesframed under Section 11(14)ofthe Act, it is not in every case that the Arbitral Tribunal has to fix its fee in accordance with the Fourth Schedule to the Act. Therefore, the proviso to Section 38(1) ofthe Act would have no bearing on the Interpretation being put to the Fourth Schedule and the phrase "Sum in dispute"therein. FAQ(OS)(COMM)70/2017 Page6of13 Fif'.■} m <S<i

16. An argument was made that the adjudication ofcounter claim would require extra effort from the Arbitrator and therefore, the Arbitratorshould be entitledto charge aseparate feefor the same.1cannot agree with this argument. The object of providins for counter claim is to avoid multiplicity of proceedinss and to avoid diversent findinss. Keevins the object of the amendment in view, the ceilins on fee as prescribed in the Fourth Schedule of the Act cannot be allowed to be breached." (emphasis supplied)

12. We are in complete agreement with the aforesaid observations ofthe Single Judge in DSIIDC(supra). The term''sum in dispute", would take in its ambit claims as well as counter claims. The said expression "sum in dispute" used in the 4'*^ Schedule,to,thp;^et has to be given its ordinary meaning,to include the total amount ofclaim made by the claimant, and the total amount ofcounter claim made bythe respondent. We concur with the finding ofthe Single Judge that the proviso|to Section 38(1)ofthe Act can only apply when the Arbitral Tribunal fixes its own fees, as in the case of mostad hoc arbitrations. Thekaidjifdviso cahnM apply when the fees ofthe Arbitral Tribunal has been fiXed/Z-in terms of 4' Schedule to the Act. \ Therefore, Section 38(1) of the Act and its proviso cannot be resorted to while interpretingtheterm''sumin dis^ inthe 4^*^ Schedule to the Act.

13. Rule 3 ofthe DIAC Rules,relied upon by the Arbitral Tribunal in its order dated 2?"^ January,2021,is setoutbelow: "3. Arbitrators'Fees (i)The fees payable to the Arbitrators shall be determined in accordance with the scalesspecifiedin Schedules 'B, C,D &E' to these rules. FAQ(OS)(COMM)70/2017 Page 7of13 (ii)The fee shall be determined and assessed on the assresate amountofthe claim(s)and counter claims(s). PROVIDED that in the eventof failure ofparty to arbitration to pay itsshare as determined by the centre, on the aggregation of claim(s) and counter claim(s), the Centre may assess the claim(s)and counter claim(s)separately and demand the same from theparties concerned." Schedule B provides for Arbitrator's fee in Domestic Arbitrations and Schedule C provides for Arbitrator's fee in Summary Arbitrations. It is provided therein,that"Sumsin dispute mentionedin theScheduleB and C aboveshallinclude any counter-claim made by a partv^\

14. There is no ambiguity in the'aforesaid ELule. The arbitralfee has to be determined on the basis ofaggregate amoiiht of claim and counter claim. The proviso to Rule 3 ofthe DIAC Rules kicks in only when the party fails to pay its share ofthe aggregate aimount,ofclaim and counter claim. Thus,in such cases, DIAC has the discretion/to'assess,the claim and counter claim separatelyand demand the samei^dhf:the^|)lrt The proviso does notdeal with the aspect ofcomputation'dffhejarh^^^^ To read rule 3(ii)as"The fee shall be determined and assessed on the amount of the claim(s) and counter elaim(s) and aggregated", would do, violence to the plain and ordinary grammatical meaning of the saiH' F^ule. The parties agreed to appointment ofthe Sole Arbitrator and to his fee being fixed in accordance with the Fourth Schedule ofthe Act on the clear understanding ofinter alia, Rule 3(ii) to mean that the fee ofthe Sole Arbitrator shall be fixed on the aggregate of the claim(s) and counter claim(s). To now call upon them to pay separate fee for the claim(s) and counter elaim(s) would not be fair to them, and is bound to cause them embarrassment. If the interpretation FAG(OS)(COMM)70/2017 Page8of13 proposed by the Ld. Sole Arbitrator was known to them, they- or one of them, may not have agreed to the appointment of the Sole Arbitrator. Similarly,the Tribunal was conscious,when it accepted and embarked upon the reference ofthe intent offee that would be payable, and the limitations on it. Having chosen to accept the assignment,the fee cannot be enhanced by a process of interpretation of the Rules, not in consonance with the interpretation already adopted.

15. As regards the observations made in the order dated January, 2021 of the Arbitral Tribunal with regard to counter claim being an independent action requiring separate adjudication,this aspect has also been considered by the Single Judge m DSIID.C(supra)in paragraph 16 set out above. Wefully concur with the frndingsjOftbe Single Judge in this regard. Here,it may also be relevant to note thafunlike a civil suit, where a counter claim could be in respect ofa totally'diffffent transaction,in the context of arbitral proceedings,the counter claim hagtdVnecessarily be in relation to the arbitration agreement. Therefore^,imthg arbitration proceedings it may not be correct to say thatr;cp:un.ty|;)^lqitn^^^^ be an "independent" cause ofaction.Itseemsfrom the same subject matter/transation.

16. The judgment of the Sijigle,Judge of thi^; Court in M/s Chandok Machineries Vs. M/s.S.N.Sunderson^& bo:,2t)18 SCC OnLine Del 11000 relied upon by the Arbitral Tribunal, was in a different context. In that case, this Court, while appointing the Arbitral Tribunal had directed that the fee shall be fixed bythe Arbitral Tribunal itself.In this regard,reference may be made to paragraph 36 ofthejudgment: "36. It may further be noted that this Court, while apvointms the Presiding Arbitrator, vide its order dated 27 November, 2015 in Arbitration Petition No. 365/2015, had directed that FAQ(OS)(COMM)70/2017 Page9of13 the fee shall be fixed by the learned Arbitrator himself. Therefore, it was for the Arbitral Tribunal to fix its own fee and merely because it sives a reference to the Fourth Schedule ofthe Act while fixins its fee, it cannot be said that it had bound itselfto the said Fourth Schedule." Therefore,in that case,the Arbitral Tribunal was not bound to fix the fee in terms ofthe 4"" Schedule to the Act. It was in that context that this Court, while relying upon Section 38 ofthe Act, observed in paragraph 39 that Arbitral Tribunal may fix separate amount ofdepositfor the claims and counter claims and upheld the decision of the Arbitral Tribunal fixing separate fee in respect ofclaim and counter claim. Therefore,in our view, there is no conflict between the,judgments,in DSIIDC (supra) and M/s Chandok Machineries(snpra).

17. Our attention was also drawn to thejudgment ofanother Single Judge of this Court in NTPC Limited' Vs. Afpons RN Shetty & Co Private Limited, MANU/DE/1574/2021.;fnTlie said vcase also,'the Ajrbitral Tribunal hadfixed its ownfee separatelyfor claim^ as counter claim. This was not a case where the fees ofthe Arbltfai: was fixed by the Court.It was in this context that, the Single Judge examined whether the Arbitral Tribunal was correct in holding that separate fees could be charged on the amount ofclaim and counter claim! The relevant observations ofthe Single Judge in NTPC(supra)are set out below: "43. In my view, the scheme of 1996 Act is such that the provisions of Section 38(1), 31(8) and 31A are inextricably interlinked. These provisions cannot be read in isolation. The proviso to Section 38(1) clearly states that, where there are claims and counter-claims before the arbitral tribunal, the Arbitral Tribunal mayfix separate amount ofdepositsfor the claim and counter-claim. Section 38(1) clarifies that the "amount ofdeposit" is to be directed "as an advancefor the FAQ(OS)(COMM)70/2017 Page 10of13 i costs referred to in sub-section (8)ofSection 31 Sub-section (8)ofSection 31 requires the Arbitral Tribunal tofix the costs ofarbitration in accordance with Section 31A. The explanation to Section 31A(1)clearlystates that,for thepurposes ofSection 31A(1)the expression "costs" means reasonable costs relating to, inter alia, "thefeesandexpenses ofthe arbitrators

44. Mr. Upadhyay also sought to contend that the word "fees"has to be segregatedfrom the concept of"costs"in the 1996Act. Empirically stated, this may be correct; however,for the purposes ofapplication ofSection 31A(1), it is notpossible to dichotomise "fees" and "costs". This submission, in my view, would be in the teeth ofSection 31(8)read with Section ( Jl 31A andcannot, therefore, be accepted.

45. Section 31(8) requires the arbitral tribunal to fix the costs ofthe arbitration, and the expianqiion to Section 31A(1) clearly holds that the words "cdsis'fmeans reasonable costs relating to, inter alia, "theffees:and expenses of the arbitrators". Apart from 'this, \;the expression "costs", statutorily, also means reasonable costs relating to (i) thefees and expenses ofthe Courts a' rid%iihesses, (ii) legalfees and expenses, (Hi) any adnnnifiratiqfiisfccs of the institution supervising the arbitratipn(which doefnotapply in thepresent case) and (iv) any other'expense'fdpc^^ in connection with the arbitralor Courtproceedingsand the arbitralaward."

18. While arriving at the aforesgiid finding,.the Single Judge in NTPC (supra) concurred with the view expressed in-M/s Chandok Machineries (supra), without going into the issue if there is an inconsistency between DSIIDC(supra)andM/y Chandok Machineries(supra).

19. Judgments in M/s Chandok Machineries(supra) and NTPC(supra) were in the context ofinterpreting Sections 38(1)and 31A ofthe Act where the Arbitral Tribunal was free to fix its own fees and the fee was not fixed by the Court in terms of 4"^*^ Schedule to the Act. In DSIIDC(supra), the FAG(OS)(COMM)70/2017 Page11 of13 fees ofthe Arbitral Tribunal was specifically fixed by this Court in terms of 4^*" Schedule to the Act. Therefore, there is no inconsistency between the judgments ofthis Court in DSIIDC(supra)on one hand and M/s Chandok Machineries(supra)and NTPC(supra)on the other hand.Thejudgments in M/s Chandok Machineries(supra)and NTPC(supra)cannot be resorted to for interpretation ofthe words"'sum in dispute"as occurring in 4^*^ Schedule to the Act. Therefore, in our view the said judgments are not applicable to the facts and circumstances ofthe present case.

20. Our attention was also drawn to thejudgement ofthe Supreme Court in National Highways Authority ofIndia Vs. Gayatri Jhansi Roadways Limited 2019 SCC OnLine SC 906. The issue before the Supreme Court in the aforesaid case was whether the fee ofthe Arbitral Tribunal was to be fixed in terms ofthe agreement between the.parties, or the 4^ Schedule to the Act.In the facts ofthat case,the Supreme Court held thatthe fees whs to be fixed in terms of the agreement, between the parties and not the 4"^ Schedule to the Act. It was in that context that the Supreme Court made the following observations:- ■ v.r. "14. However, the learned Single Judge's conclusion that the change in language ofSection 31(8) read with Section 31-A which deals only with the costs generally and not with arbitrator'sfees is correct iri law. It i'Jtrue that the arbitrator's fees may be a component ofcosts to be paid but it is afar cry thereafter to state that Sections 31(8)and 31-A would directly govern contracts in which afee structure has already been laid down. To this extent, the learned Single Judge is correct. We may also state that the declaration oflaw by the learnedSingle Judge in Gayatri Jhansi Roadways Ltd. is not a correct view of the law." FAQ(0S)(C0MM)70/2017 Page12of13

21. Thus, Sections 31(8) and Section 31A would have no application where the fees ofthe arbitral tribunal has been fixed by agreement between the parties, as in the case before the Supreme Court. Similarly, where the fees has beenfixed bythe Courtin terms of4^Schedule to the Act,as in the case at hand. Sections 38(1), 31(8) and Section 31A would have no application. The term ^^sum in dispute'" provided in the 4^^ Schedule to the Acthas to be interpreted so as to include the aggregate value ofthe claims as well as counter claims.

22. The application stands disposed ofin the above terms. IHN mNGHI,J.) MARCH Jf),2022 dk \'r V:-' T BANSAL/J.) ■ -, ■''■'L'Ji-f' - — o j K40 (OS)(COMM) 70/2017 Page 13 of13