Arb.O.P(Com.Div)No.38 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
Arb.O.P.(Com.Div)No.38 of 2022
1. M/s.Emerald Luxury Cars LLP,
No.9, Shyam Vihar Bunglow, Shilaj Road,
Thaltej Ahmedabad - 380 054, Gujarat.
2. Mr.Kanaiyo M.Thakkar,
Partner, M/s.Emerald Luxury Cars LLP,
No.9, Shyam Vihar Bunglow, Shilaj Road,
Thaltej Ahmedabad - 380 054, Gujarat.
3. Khushi Kanaiyo Thakkar,
Partner, M/s.Emerald Luxury Cars LLP,
No.9, Shyam Vihar Bunglow, Shilaj Road,
Thaltej Ahmedabad - 380 054, Gujarat. ... Petitioners
vs.
1. M/s.Daimler Financial Services India Private Limited,
Rep. by its Authorized Signatory, Having its office inter-alia at
1st Floor, Tower B, Tek Meadows,
No.51, Rajiv Gandhi Salai,
Sholinganallur, Chennai-600 119.
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Arb.O.P(Com.Div)No.38 of 2022
2. M/s.Mercedes Benz India Pvt. Ltd.,
E-3, MIDC Chakan, Phase III,
Chakan Industrial Area,
Kuruli & Nighoje, Taluka Khed,
Pune-41050.
3. Justice F.M.Ibrahim Kalifulla,
Former Judge, Supreme Court of India,
Sole Arbitrator,
Flat No.2C, 2nd Floor, 'Elina Forsche'
No.152, Gandhi Road,
Gill Nagar Extension, Choolaimedu,
Chennai-600094
Email:[email protected]
Ph:044-243612928, 7550048928.
... Respondents
PRAYER: Application filed under Section 14 read with Section 11 and 15 of
Arbitration and Conciliation Act, 1996 to terminate the mandate of the arbitral
tribunal and reconstitute the arbitral tribunal by appointing a Retired District
Court/High Court Judge as a substitute sole arbitrator.
For Petitioners : Mr.Sunil Kumar
For Respondents : Mr.R.Sudhinder
for M/s.K.Ashok kumar
**********
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Arb.O.P(Com.Div)No.38 of 2022
ORDER
The present petition arises out of an order dated 17.11.2021 of the arbitral tribunal by which directions were issued in relation to payment of fees by the parties to the arbitration.
2. The petitioners were respondents before the arbitral tribunal but made substantial counter claims. The petitioners contend that the tribunal has been rendered de jure unable to perform its functions on account of the manner of fixation of fees. In an earlier judgment, in Clarke Energy India Private Limited v. SAS EPC Solution Private Limited (2021-5 - L.W - 929), I had concluded that a petition under Section 14 could be maintained even in cases that do not fall strictly within the scope of Schedule V and Schedule VII of the Arbitration and Conciliation Act, 1996 (The Arbitration Act). However, in the context of fixation of fees, I concluded that a petition under Section 14 cannot be maintained solely on the ground that a particular sum was fixed as fees unless the petitioner is able to establish that bias pervaded the fixation of fees. Apart from asserting that the fixation of fees is not in accordance with the IV Schedule and that the petitioners are only liable to pay a sum of Rs.5,00,000/-, the petitioners are unable to indicate 3/5 https://www.mhc.tn.gov.in/judis Arb.O.P(Com.Div)No.38 of 2022 any basis to conclude that the tribunal has been rendered de jure unable to exercise functions.
3. With regard to the fixation of fees, the Hon'ble Supreme Court has dealt extensively with the subject in Oil and Natural Gas Corporation Ltd v. Afcons Gunanusa JV, Arbitration Petition (Civil) No.5 of 2022, judgment dated 30.08.2022. The said judgment will govern the issue.
4. For reasons set out above, no case is made out warranting interference under Section 14 of the Arbitration Act. Consequently, this petition is dismissed without any order as to costs.
15.09.2022 anu Index : Yes / No Internet : Yes / No To Justice F.M.Ibrahim Kalifulla, Former Judge, Supreme Court of India, Sole Arbitrator, Flat No.2C, 2nd Floor, 'Elina Forsche' No.152, Gandhi Road, Gill Nagar Extension, Choolaimedu, Chennai-600094 Email:[email protected] Ph:044-243612928, 7550048928.
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