It cannot be said that Delay in Protracting the proceedings was on the Tribunal, which can be a ground for Court to terminate its mandate: Delhi High Court 

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The Delhi High Court ruled that it cannot be said that delay in protracting the proceedings was on the Tribunal, which can be a ground for Court to terminate its mandate.

Background 

The petition has been filed by the petitioner National Highways Authority of India under Section 14 and 15 (2) of the Arbitration and Conciliation Act, 1996 seeking, inter-alia, termination of the mandate of the Arbitral Tribunal and appointment of a substitute Tribunal. 

According to the petitioner, the Tribunal is de jure and de facto unable to perform its functions, as the fee being charged by the Tribunal is in complete disregard of the agreement between the parties which provides for Arbitration as per the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi. 

The respondent is a special purpose vehicle incorporated to carry out rehabilitation and upgradation of the Piprakothi-Motihari-Raxaul Section of National Highway (NH) 28A from KM 0.600 to KM 62.064 and for construction of two-lane link road from KM 62.064 to ICP Raxaul Section of the said National Highway in the State of Bihar on Design, Build, Finance, Operate and Transfer (DBFOT) basis.

Arguments 

Senior Advocate Parag P Tripathi, appearing for the petitioner, submitted at the outset that the directions of the Tribunal are not in consonance with the Fourth Schedule of the Act or the ICADR Rules and the directions to pay amounts over and above the same cannot be permitted.

He contended that the Tribunal has also failed to proceed with due dispatch, inasmuch as, it has failed to conduct the arbitral proceedings efficiently and expeditiously. 

He argued that the Tribunal, illegally and unilaterally, revised the fee and directed that it shall be paid a fee of ₹ 1,50,000/- per hearing, to be shared equally by both parties.

Senior Advocate Gourab Banerji, for the respondent, submitted that the petitioner in their Written Submission and during the course of hearing, completely changed its case from its case before the Tribunal as well as in its pleading before the Court.

He contended that the submission that the Tribunal is claiming amounts over and beyond ₹49,87,500/-, which is a ground for termination of the mandate of the Tribunal, was made de novo after the petition has been filed.

He argued that the Tribunal has not sought any amount over and above the amount of ₹ 49,87,500/-.

Decision 

The single judge bench of Justice V. Kameswar Rao noted that the order passed by the Tribunal was on a consideration of the judgment that the fee to be charged by the Tribunal shall be “as per law”. 

The court said that the Tribunal has not clarified what it meant by the words “as per law”.

The bench inferred that the intent of the order was to say that the Tribunal cannot exceed the figure as permissible in law.

The court found that no order of the Tribunal to pay the fee for nine sittings, has been sought.

The bench said that Advocate Tripathi may be right in contending that the cross examination of the sole witness of the respondent was very brief and only a few questions were put to him and he may also be right in stating that the Tribunal should have held more detailed proceedings and endeavoured to complete the cross examination of the witness, but looking at the list of dates, except the brief cross examination conducted by the Tribunal on certain dates, the proceedings have been adjourned for reasons not attributable to the Tribunal. 

The court observed that it cannot be said that the delay in protracting the proceedings was on the Tribunal, which can be a ground for the Court to terminate its mandate. 

The court viewed that the prayers as made by the petitioner cannot be granted.  

“Given the nature of issues raised on the aspect of fee/conduct of proceedings, to which objections were raised by the petitioner, resulting in the filing of the present petition seeking termination of the mandate of the Tribunal, it is left open for the Members of the Tribunal to consider, whether they would like to continue as Members of the Tribunal in the arbitration proceedings” the court stated. 

Case title: National Highway Authority of India v/s M/S Tantia Raxaul Tollways Private Limited 

Citation: O.M.P. (T) (COMM.) 45/2022, I.As. 6265/2022 & 13050/2022

Click here to read the Order/Judgment 

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