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2021 (8) TMI 1348 - ALLAHABAD HIGH COURTDetermination of Fee and Administrative expenses payable to each of the Arbitrators in the arbitration proceedings - Erroneous impugned orders or not - whether entire order with the Vice of arbitrariness is vitiated? - HELD THAT:- This Court having heard both the counsel for the petitioners as well as for the respondents, finds that the counsel for both the parties are in agreement with regard to the basic premise on which the orders impugned have been passed being erroneous, vitiating the entire order with the Vice of arbitrariness. This Court has also carefully gone through the judgments rendered by the Delhi High Court, Patna High Court and the Punjab and Haryana High Court. Although such judgments have only persuasive value and cannot be said to be binding precedings, this Court cannot ignore the observations made therein on the basis of 246th Report of the Law Commission which related to the Amendment Act of 2015. The mischief that was to be sought to be avoided was that of exorbitant costs of Arbitration, arbitrarily fixed by the Arbitral Tribunal which consisted of retired High Court and Supreme Court Judges sometimes. The arbitration proceedings were to be made an attractive proposition for Alternate dispute resolution. The observations made by the Hon'ble Supreme Court in Union of India Vs. Singh Builders Syndicate [2009 (2) TMI 794 - SUPREME COURT] cannot be ignored by this Court, where it was held that A provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration. This Court is also of the considered opinion that the Fourth Schedule is applicable to even Arbitral Tribunals appointed under Section 11 (2) and the ceiling limit of Rs.30 lacs as Model Fee for all claims above Rs.20 crores would be applicable in the case of determination of Fee of Arbitral Tribunal and the orders impugned have erroneously ignored the Fourth Schedule saying that it would only be applicable to cases where the High Court has framed Rules or appointed Arbitrators. Whether Fee should be taken as a composite amount or is to be paid separately and individually to each Arbitrator? - HELD THAT:- This Court is of the considered opinion that the arguments raised by Shri Sudeep Seth, learned Senior Counsel appeal more to reason, because under Section 2 (d) of the Act the Arbitral Tribunal is defined either as a sole arbitrator or a Panel of arbitrators and the language used in Sub Section (14) of Section 11 is for "determination of Fees of the Arbitral Tribunal". Had the Legislature intended that the Fee as mentioned in the Fourth Schedule was to be given to each of the members of the Arbitral Tribunal individually, in case it was a multi member body, then it would have clarified the same by appending another note to the Fourth Schedule by saying that in the event the Tribunal is a multi member body each of its its members would be getting the Fee as mentioned in the Schedule. This Court the orders impugned deserve to be set aside. The orders impugned are set aside - Petition allowed.
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