Judgment:
S.D. Anand, J.
1. The petitioner-Haryana Vidyut Parsaran Nigam Ltd. (hereinafter referred to as 'the petitioner') and respondent No. 1, Sector-6, Panchkula (M/s Arya Nirman (Engineers, Consultants, Contractors and General order suppliers) are parties to arbitration proceedings being conducted by respondent No. 2 Shri D.P. Bajaj, Chief Engineer (Retd.).
2. The petitioner herein filed a plea before the learned Trial Court for replacement of the Arbitrator on the premise that he had fixed a higher amount of fee for self. In the context, reliance was placed upon a circular dated 12.5.2004 issued by the petitioner whereby certain criteria for award of fee in arbitration cases had been fixed. The plea, raised in the context, was that the fee fixed by the Arbitrator was far in excess of the norm fixed by the petitioner. The plea did not find favour with the learned Trial Court which observed as under:
However, when this Court insisted repeatedly that since it was the petitioner, who had approached this Court of law seeking the relief in question by way of filing the present petition, so, he had to stand on his own legs by way of showing the relevant law or citation on the point in controversy, then, the learned Counsel for the petitioner in the name of relevant law/citation referred to the Synopsis of Section 39 as contained in Chapter 10 under the heading 'Miscellaneous' of the Arbitration and Conciliation Act in a book written by PC Markanda, Adv., Member, Governing Body of the Indian Council of Arbitration wherein, it has been mentioned that the court has the jurisdiction and power to determine the dispute with regard to the fees between the arbitrator on the hand and the parties on the other hand and that the court had a power to decide what amount of fee was reasonable to be paid to the arbitrator and the balance of the money, if any, was to be refunded to the parties.
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8. In this regard, it is also worthwhile to mention here that thf bare perusal of the circular dated 12.5.2004 of the Board of Directors of the petitioner clearly shows that the fee structure prescribed therein for the arbitrator, appears to be quite less, inadequate and unreasonable which is based on the pecuniary value of the amount of the dispute without going into the magnitude of the task or the quantity of the work which the arbitrator would require to do in the peculiar circumstances of a particular case.
9. On the other hand, the fee structure prescribed by the arbitrator as mentioned by the petitioner in Ex.P3 relating to 5th hearing dated 25.11.2006, appears to be quite reasonable and justified in the light of the fact that the aforesaid fee structure was liable to be shared by both the parties on 50-50 basis, which in turn means, that the petitioner had to pay just Rs. 3,750/- per hearing, Rs. 5,000/- lump sum as one time fee for study of documents, Rs. 10,000/- as fee for writing of awarded and Rs. 375/- as fee for secretarial services per hearing.
3. The learned Counsel, appearing on behalf of the petitioner, argues that fixture of a fee which is higher than the norms fixed by the petitioner is, by itself, a ground sufficient enough to justify the allowance of the petitioner's plea for replacement of the Arbitrator.
4. The plea is resisted by the learned Counsel appearing on behalf of the respondent No. 1 who, in support of the plea, that there is all the justification for the Arbitrator to fix the own fee, placed reliance upon Sunder Kukreja and Ors. v. Mohan Lal Kukreja and Anr. : (2009) 4 Supreme Court Cases 585 and order dated 27.2.2009 passed by a Coordinate Bench (T.S. Thakur, C.J.) of this Court in Arbitration Case No. 80 of 2006 (Bhagwan Dass & Sons v. Union of India (2009) 155 P.L.R. 142). In the latter case, the Bench allowed the arbitrator to fix her own fee.
5. In the circumstances, the plea raised on behalf of the petitioner-Nigam is completely devoid of merit. The entitlement of the Arbitrator to fix his own fee is authorized by the provisions of the Arbitration and Conciliation Act, 1996 itself. The two judicial pronouncements relied upon by the learned Counsel for the respondent No. 1 are also fully supportive of the view aforementioned. The Arbitrator cannot be replaced just because the fee fixed by him is not in accord with the norms fixed by the petitioner. The petitioner, by the very nature of things, is a party to the arbitration proceedings. It cannot be heard to insist upon the replacement of the Arbitrator just because the fee structure fixed by the Arbitrator is not in accord with the norms fixed by the petitioner vide a circular.
6. The petition shall stand dismissed.