Crown Buildtech Pvt Ltd v. Bhupinder Lal Ghai

SANJIV KHANNA, J. pk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 16th August, 2011 % Judgment Pronounced on: 5th September, 2011 + FAO(OS) No. 385-386/2011 CROWN BUILDTECH PVT. LTD. ..... Appellant Through: Mr. Sandeep Sethi, Mr. Kirti Uppal, Mr. Sunil Narula, Sr.Advs. with Mr.Badar Mahmood Versus BHUPINDER LAL GHAI ..... Respondent Through: Mr. D.S. Chaddha, Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA Whether reporters of the local papers be allowed to see the judgment? Yes To be referred to the Reporter or not? Yes Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present appeal is directed against the order dated 14th July, 2011 passed by the learned Single Judge in IA No.8248/2009 and 8249/2011 in Arbitration Petition No.470/2009 and 471/2009 respectively. On a perusal of the order passed by the learned Single Judge, it is manifest that IA Nos. 5823/2011 and 5824/2011 have been jointly filed by the parties duly signed by them and their respective counsels supporting by the affidavit that the Court may allow payment of additional fee to the learned sole arbitrator in accordance with the Delhi High Court Arbitration Centre (Arbitrator"s Fees) Rules, to be shared equally after deducting amount of Rs.2 lakhs which was the lump sum fee fixed by the Court in the two cases. After the joint applications were filed, the appellant herein sought to withdraw its consent and alleged bias against the learned arbitrator. 2. The learned Single Judge referred to the agreements entered into between the parties, the appointment of the arbitrator on 15.2.2010, the sum fixed towards fees, the commencement of proceedings before the learned arbitrator, the applications filed on consent, the statement of the appellant herein expressing its unwillingness to pay any additional fees to the learned arbitrator, the issue of bias raised against the learned arbitrator as he changed the rules in the middle of the proceedings, the conduct of the counsel before the learned arbitrator, the order dated 28th March, 2011 whereby the learned arbitrator had declined to recall the witness, the issue raised with regard to the relevance of the recall of the said witness, the conduct of the parties before the learned arbitrator and the power of the Court to appoint an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (for short "the 1996 Act") and came to hold as follows: "37. Consequently, I am of the view that the learned Arbitrator was perfectly right in rejecting each and every allegation made by the respondent to allege bias against him. The issue raised by the Arbitrator as to why application was filed at such a belated stage of the arbitration proceedings, when only arguments were left to be heard before making of the award, is a valid and germane question. To me, it appears from the conduct of the respondent and its counsel, who appeared before the Arbitrator on 05.05.2011, that the whole purpose was to somehow derail the arbitration proceedings; get the learned Arbitrator to resign, and; to prevent the Arbitrator from making the award. Consequently, I find absolutely no justification in the respondent withdrawing its consent to the raising of the fee of the learned Arbitrator, which, in any event, had been agreed to be paid only at the rates prescribed under the Delhi High Court Arbitration (Arbitrators Fees) Rules. 38. The learned Arbitrator, out of his anguish and the hurt suffered by him, returned the cheques to the parties and they were left with the Coordinator of the Delhi High Court Arbitration Centre. In my view, the Arbitrator has to be paid for the work that he has done, and my request to the learned Arbitrator is to accept the fees and not to refund any part thereof. Otherwise, it would send a very wrong message to everyone – that one can ill-treat an Arbitrator; have him removed, and; also get refund of the fee paid to him for the work done by him." 3. After so holdi