* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd JANUARY, 2026
IN THE MATTER OF:
+ I.A. 25230/2025 & I.A. 25279/2025
IN
ARB.P. 853/2023
VEDANTA LIMITED .....Petitioner
Through: Mr Jayant Mehta, Sr. Advocate with
Mr. Sulabh Rewari, Ms. Vasudha
Sharma, Ms. Anwesha Singh and Mr.
Shubhansh Thakur, Advs.
versus
GUJARAT STATE PETROLEUM CORPORATION LTD.
.....Respondent
Through: Mr. Parag P. Tripathi, Sr. Advocate
with Mr. Piyush Joshi, Ms. Sumiti
Yadava, Ms. Meghna Sengupta, Ms.
Vatsla Bhatia and Mr. Yagya Sharma,
Mr. Aparajito Sen, Advs.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. This Application is filed by the Respondent under Section 151 of the
Code of Civil Procedure, 1908 seeking recall of the Judgment dated
28.07.2025. This Court, by the said Judgment, allowed the Petition filed by
the Petitioner under Section 11(6) of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as „the Arbitration Act‟) and appointed the
Nominee Arbitrator of the Respondent. Since the Petitioner had already
appointed its Nominee Arbitrator, this Court directed the two Nominee
Arbitrators to appoint the Presiding Arbitrator and constitute the Arbitral
Tribunal for adjudicating the dispute which has arisen between the parties.
2. In the present Application, the principal contention of the Respondent
is that this Court had no jurisdiction to entertain the Petition under Section
11 of the Arbitration Act as the Petitioner was operating the Oil & Gas
Block in Barmer, Rajasthan i.e., RJ-ON-90/1 Block (hereinafter referred to
as "the Gas Block") with a foreign company as part of its consortium.
According to the Respondent, the Petitioner cleverly did not implead M/s
Cairn Energy Hydrocarbons Limited (hereinafter referred to as „the CEHL)
and M/s Oil & Natural Gas Corporation Limited (hereinafter referred to as
„the ONGC) in the array of parties. It is stated that the joint venture to whom
the Gas Block was awarded by the Government of India included the
Petitioner herein, ONGC as well as CEHL, which is a foreign entity. For this
reason, both ONGC and CEHL were necessary parties to the arbitration
proceedings as well as to the Petition under Section 11 of the Arbitration
Act. It is the contention of the Appellant that, since CEHL is a foreign
entity, the dispute, in relation to which the Petitioner preferred the Petition
under Section 11 of the Arbitration Act, was a subject matter of an
international commercial arbitration and, therefore, only the Hon‟ble
Supreme Court had the jurisdiction to entertain the Petition under Section 11
and this Court ought to recall its Order dated 28.07.2025. It is stated that the
Order dated 28.07.2025 is a nullity.
3. Shorn of unnecessary details, the facts leading to the Petition under
Section 11(6) of the Arbitration Act, are as under:
a) The Gas Block, was awarded by the Government of India to a Joint
Venture comprising of various entities namely CEHL, ONGC and the
Petitioner herein (collectively referred to as the "Contractors").
b) Thereafter, the Government of India entered into a Production Sharing
Contract (hereinafter referred to as "the PSC") with the Joint Venture
for the Oil & Gas Block. It is stated that the Petitioner is the Operator
of the Gas Block and is authorised to act on behalf of the Joint
Venture.
c) On 28.12.2022, the Petitioner issued a Notice Inviting Offers along
with the Request for Proposal ("RFP") and a Gas Sales Agreement
(hereinafter referred to as "the GSA"), inviting offers from
companies interested to offtake all or portion of gas volumes available
for sale from the Gas Block. It is stated that the Clause 18 of the GSA
contains an Arbitration Clause.
d) As per the requirement in the Bid Process on e-Tendering Portal i.e.,
Mjunction, the Respondent uploaded a signed copy of the GSA and
the RFP on 12.01.2023. In addition to the above documents, the
Respondent also uploaded signed Forms C1 & C6. It is pertinent to
mention that the stand of the Respondent is that the Respondent only
initialled the pages and did not sign the pages for a valid contract.
e) On 18.01.2023, the bidding was closed. The Respondent emerged as
one of the successful bidders and was allocated the single highest
quantity of gas. On the very same day, the Respondent was sent an
email by Mjunction on behalf of the Petitioner, intimating the
Respondent about the results of the bidding process and informing the
Respondent about the quantity of Gas allocated to the Respondent as
determined in terms of Clause 4.2 of the RFP.
f) Subsequently an email dated 19.01.2023 was sent by the Petitioner to
the Respondent wherein a fresh copy of the filled up and signed GSA
was attached for formal signing in terms of Clause 1.3.3 of the RFP.
Several reminder emails dated 20.01.2023, 27.01.2023, 01.02.2023,
10.02.2023, 17.02.2023 and 22.02.2023 were also sent to the
Respondents regarding the same. However, no response or objection
was raised by the Respondent.
g) On 27.02.2023, a Letter bearing No. COM/RJ/GSPC/2023/12 was
sent by the Petitioner to the Respondent, stating that the Respondent
has emerged as the largest buyer of Gas from the Gas Block in the
Auction Process and was allocated the gas volume of 1,907,543
scm/day. It is further stated that both the parties reached an agreement
regarding the terms and conditions as laid in the GSA, after which the
Petitioner shared a signed copy of the Final GSA on 27.01.2023,
while the countersigned scanned GSA was awaited from the
Respondent.
h) Vide email dated 27.02.2023 sent by the Respondent, the Petitioner
was informed that on account of unforeseeable and adverse material
changes in the natural gas market due to continuous fall in gas prices,
it was not feasible for the Respondent to market this gas to
downstream customers at the current bid price. It was further stated
that the Respondent is continuously making efforts to sell the gas to
downstream customers and would revert to the Petitioner.
i) The Petitioner, in response to the aforementioned email, sent an email
dated 28.02.2023 stating that the contract between the parties stood
concluded when the Petitioner accepted the Respondent's bid for
allocation of gas and were only waiting for the Respondent to
countersign the final signed GSA, which was sent to the Respondent
vide email dated 27.01.2023.
j) Vide a Letter dated 07.03.2023 bearing No. COM/RJ/DGH/2023/14,
the Petitioner wrote to the Ministry of Petroleum & Natural Gas,
informing about the whole auction process that has taken place for the
Gas Block and further apprising them of the fact that the GSA was not
signed by the Respondent. The Petitioner, through this Letter,
requested the Ministry to ensure that the Respondent signs the GSA
expeditiously as possible.
k) It is stated that it was only on 21.03.2023, that the Respondents vide a
Letter bearing No. GSPCL/COMM/2023 stated that they are not in
agreement with the allocation as communicated by the Petitioner and
also stated that there is no valid GSA and no binding agreement in
existence between the Parties. The Petitioner replied to the aforesaid
letter vide Letter dated 22.03.2023 bearing No.
COM/RJ/GSPC/2023/19, denying all the allegations made by the
Respondent.
l) Vide email dated 30.03.2023, the Respondent proposed an alternative
interim arrangement, which was accepted by the Petitioner on a
„without prejudice‟ basis to avoid loss. It is further stated that the
parties also agreed to go by the standard terms of the GSA.
m) The Petitioner vide Letter dated 07.07.2023, after going through the
settlement talks in terms of Clause 18.1 of the GSA, which failed, sent
a notice invoking arbitration under Section 21 of the Arbitration Act
in terms of Clause 18 of the GSA and appointed its nominee
Arbitrator.
n) The Petitioner also filed a Petition under Section 9 of the Arbitration
Act before this Court which was withdrawn vide Order dated
07.07.2023, as the Petitioner already invoked Arbitration.
o) The Respondent vide Letter dated 04.08.2023, replying to the notice
invoking Arbitration stated that arbitration cannot be invoked as there
was never a valid arbitration agreement, let alone any agreement
between the Parties which contained an Arbitration Clause.
p) Thereafter, the Petitioner approached this Court under Section 11(6)
for appointment of the Nominee Arbitrator on behalf of the
Respondent, so that the proceedings under the Arbitration Act can
commence for adjudication of the disputes between the parties. The
Petitioner had appointed Justice L. Nageshwar Rao, former Judge of
the Supreme Court of India, as its nominee Arbitrator.
4. In reply to the Petition under Section 11(6) of the Arbitration Act, the
Respondent raised a preliminary objection regarding non-joinder of CEHL
and ONGC, who were parties to the Joint Venture. It was stated in the reply
that since there is an issue of non-joinder of necessary parties, the Petition
under Section 11 of the Arbitration Act was not maintainable.
5. In rejoinder, the Petitioner stated that under Clause 4.5.3 of the Joint
Operation Agreement (hereinafter referred to as „the JOA‟), and in terms of
the GSA, the Petitioner was authorised to represent itself as well as the other
two partners, i.e. CEHL and ONGC, before all the courts in relation to the
petroleum operations and for performance of all other acts of similar nature.
In the rejoinder, the Petitioner also contended that in line with the JOA, the
standard GSA that was signed and uploaded by the Respondent on
12.01.2023, also expressly provides that ONGC and CEHL has agreed to
appoint the Petitioner as its authorized representative for the purposes set out
in the Agreement. It was also stated that CEHL, on its letterhead, confirmed
that the Petitioner is to operate the Gas Block on its behalf and was also
authorized to represent CEHL before various forums.
6. This Court vide Judgment dated 28.07.2025 allowed the Petition
under Section 11 of the Arbitration Act and appointed Justice Ravinder P.
Bhatt, former Judge of the Supreme Court of India, as the nominee
Arbitrator of the Respondent and the nominee Arbitrators were requested to
appoint the Presiding Arbitrator so that an Arbitral Tribunal can be
constituted.
7. Material on record indicates that an Arbitral Tribunal was constituted
and Justice Deepak Gupta, former Judge of the Supreme Court of India was
appointed as the Presiding Arbitrator.
8. It is also pertinent to mention that the Respondent herein approached
the Apex Court by filing Special Leave to Appeal (C) No.22924/2025,
challenging the Judgment dated 28.07.2025, which was disposed of vide
Order dated 22.08.2025, by holding as under:
"1. Having regard to the provisions of sub-section (6A)
of Section 11 of the Arbitration and Conciliation Act,
1996 and the Constitution Bench decision of this Court
in RE: Interplay Between Arbitration Agreements
under the Arbitration and Conciliation Act 1996 and
the Indian Stamp Act 1899 (2023 INSC 1066), where it
has been held that at the stage of the appointment of an
arbitrator, the Court appointing an arbitrator or
referring the matter for arbitration is required only to
examine whether, prima facie, an arbitration
agreement exists and nothing more, and the opinion of
the referral Court is not binding on the arbitrator as
well as the Court dealing with a challenge to the
award at subsequent stage(s), we do not find it a fit
case to interfere with the Order impugned.
2. We, however, make it clear that the question of
arbitrability / existence of an arbitration agreement
may also be raised by the petitioner before the arbitral
tribunal, in addition to all other contentions which
have been left open to be raised before the arbitral
tribunal as per paragraph 35 of the impugned Order.
3. Subject to above, the special leave petition and
pending application (s), if any, shall stand disposed
of."
9. The Petitioner also filed an Application before the learned Arbitral
Tribunal for joinder of CEHL and ONGC in the Arbitration proceedings.
Relevant paragraph of the said Application reads as under:
"6. While Claimant, as Operator of the RJ Gas Block,
is entitled to pursue the claims under the GSA on
behalf of the Proposed Claimants in the present
arbitration proceeding, the joinder of the Proposed
Claimants is being sought in order to obviate the
technical objections that were taken by the Respondent
in the Section 11 proceedings:
a. that "the necessary parties to any initiation of
arbitration proceedings should include Cairn and
ONGC" [para 15.1.2, Respondent's Reply filed in S. 11
proceedings];
b. that "arbitration is an in personam proceeding...
requires that they be all made parties" [15.1.8,
Respondent's Reply filed in S. 11 proceedings); and
nor been duly arrayed as parties, and in the absence of
the joinder of the that " ONGC and Cairn, being
necessary parties as the "Sellers" have necessary
parties, no effective proceedings can take place in the
proceedings herein" [para 15.1.13, Respondent's Reply
filed in S. 11 proceedings]."
10. Now, the present Application has been filed by the Respondent stating
that since CEHL is a foreign entity, the arbitration takes the character of an
international commercial arbitration and this Court ought not to have
entertained the Petition under Section 11 of the Arbitration Act as only the
Hon‟ble Supreme Court has the jurisdiction to entertain an application for
appointment of an arbitrator in an international commercial arbitration under
Section 11(9) of the Arbitration Act.
11. Learned Senior Counsel appearing for the Respondent contends that
the Judgment dated 28.7.2025 was passed by this Court due to conscious
non-disclosure of a fundamental jurisdictional fact by the Petitioner, that
CEHL, which is a foreign entity being a company incorporated in Scotland,
would also be a party to the arbitration. He states that since a foreign entity
is involved, the resulting arbitration would be an international commercial
arbitration within the meaning of Section 2(1)(f) Arbitration Act. It is further
submitted that the result of this conscious non-disclosure by the Petitioner
was that though the exclusive jurisdiction to appoint an arbitrator in an
international commercial vests only with the Apex Court, yet the Petitioner
has obtained the Judgment dated 28.7.2025 from this Court, which does not
have the jurisdiction to entertain the Petition. It is stated that the Judgment
dated 28.7.2025 has been passed by a Court not having the jurisdiction and,
therefore, the same ought to be recalled, owing to the deception played on
this Court by the Petitioner.
12. It is further stated by the learned Senior Counsel for the Respondent
that the Petitioner ought to have presented the Section 11 Petition as one
seeking appointment of an arbitrator in an international commercial
arbitration and not as a camouflaged domestic arbitration petition, as has
been done in the present case. He states that the Petitioner ought to have
stated in the Petition that CEHL was a party to the arbitration agreement
which was subject matter of the Section 11(6) proceedings and, had that
statement been made by the Petitioner herein, there would have been no
doubt that the Section 11(6) proceedings before this Court were without
jurisdiction. He states that since the issue of jurisdiction goes to the root of
the matter and can be raised at any stage, the Judgment dated 28.07.2025
ought to be recalled as this Court lacked jurisdiction to entertain the Petition.
13. Learned Senior Counsel for the Respondent places reliance on the
Judgment of this Court in Always Remember Properties (P) Ltd. v. Reliance
Home Finance Limited and Another, 2022 SCC OnLine Del 4479, which
specifically observes that if an Order passed under Section 11 of the
Arbitration Act is a nullity and based on wrong facts, then the same can be
recalled.
14. Learned Senior Counsel for the Respondent has also placed strong
reliance on the Judgment passed by a learned Single Judge of the Bombay
High Court in Roptonal Ltd v. Anees Bazmee, 2016 SCC OnLine Bom
3555, wherein the Order passed by a co-ordinate Bench of that Court,
appointing an Arbitrator in an international commercial arbitration matter
was recalled, by holding that the power to appoint an arbitrator in an
international commercial arbitration vests only with Hon‟ble the Chief
Justice of India as per Section 11(9) of the Arbitration Act and even such an
Order passed by a designate Hon‟ble the Chief Justice of India would not
confer the jurisdiction on the learned arbitrator notwithstanding the parties
to the arbitration petition having not raised any objection as to the
maintainability thereof.
15. Learned Senior Counsel for the Respondent further states that in the
challenge to the said Order before the Apex Court, the Apex Court did not
set aside the said Judgment but disposed of the SLP by accepting the consent
of the parties to refer the matter to the very same Arbitral Tribunal in view
of the advanced stage of proceedings.
16. Learned Senior Counsel for the Respondent has also placed reliance
on the judgment passed by a co-ordinate Bench of this Court in Hala Kamel
Zabal v. Arya Trading Limited, 2024 SCC Online Del 5604.
17. Per contra, learned Senior Counsel for the Petitioner contends that the
present Application is a review under the garb of recall. He states that there
is no error apparent on the face of the record in the Judgment dated
28.07.2025. He contends that the Application, as framed, is not maintainable
as a challenge to the validity of the appointment of the Arbitral Tribunal, if
any, ought to be raised before the Arbitral Tribunal itself under Section
16(1) of the Arbitration Act.
18. He further states that the Application filed by the Respondent seeking
recall of the Judgment dated 28.07.2025 is mala fide and only an attempt to
delay the arbitral proceedings as the Respondent was always aware that
under the GSA, the Petitioner herein acted for itself as well as ONGC, and
CEHL. He states that three entities together were the Sellers under the GSA,
with the Petitioner herein as their authorized representative. He further states
that no plea of the arbitration being an international commercial arbitration
was raised by Respondent before this Court during the pendency of the
Petition under Section 11 of the Arbitration Act. He further states that the
Respondent in its Reply to the Petition had stated that the Petitioner's joint
venture partners, i.e., ONGC and CEHL, ought to be added as necessary
parties but it was never the stand of the Respondent in its reply that the
arbitration would be an international commercial arbitration. He also
reiterates the contentions raised by the Petitioner in the rejoinder, to state
that the present arbitration is not an international commercial arbitration
since the Petitioner is the representative of ONGC and CEHL and that the
Petitioner‟s place of incorporation is determinative for deciding the place of
arbitration.
19. Learned Senior Counsel for the Petitioner places reliance on the
Judgment of the Apex Court in L&T-SCOMI v. MMRDA, (2019) 2 SCC
271, wherein the Apex Court has observed as under:
"18. This being the case, coupled with the fact, as
correctly argued by Shri Divan, that the Indian
company is the lead partner, and that the Supervisory
Board constituted under the consortium agreement
makes it clear that the lead partner really has the
determining voice in that it appoints the Chairman of
the said Board (undoubtedly, with the consent of other
members); and the fact that the Consortium's office is
in Wadala, Mumbai as also that the lead member shall
lead the arbitration proceedings, would all point to the
fact that the central management and control of this
Consortium appears to be exercised in India and not in
any foreign nation."
20. Learned Senior Counsel for the Petitioner also states that the GSA
itself evidences that the name of CEHL, along with its country of
incorporation, finds express mention in the preamble where the contracting
parties are described. He further states that the GSA further depicts that the
Petitioner is appointed as the "Sellers Representative" as defined in Clause
1.1(00) of the GSA and, therefore, by virtue of being Sellers‟
Representative, the Petitioner was representing all the Sellers. He states that
Clause 10.1 of the GSA shows that invoices for the sale of gas were to be
issued by the Petitioner in its capacity as the Sellers' Representative. He
states that Clause 20 of the GSA further provides that all notices and
communications under the Agreement were to be addressed to Vedanta
Limited, i.e., the Petitioner herein. Lastly, he states that the GSA was also
executed and signed by the Petitioner on behalf of all Sellers, thereby
binding each of them, whereas CEHL and ONGC were not to sign the GSA
and, therefore, the Indian domicile of the Petitioner is determinative of the
fact that the present arbitration would fall under domestic arbitration.
21. It is also submitted that the application filed by the Petitioner before
the learned Arbitral Tribunal for joinder of CEHL and ONGC was moved by
way of abundant caution, to obviate technical objections of non-joinder of
parties taken by the Respondent in the present Petition. He submits that
moving an application for joinder of parties would not change the nature and
character of the arbitration.
22. Heard the learned Senior Counsels for the parties and perused the
material on record.
23. While narrating the facts in the Judgment dated 28.07.2025, this Court
had stated that the Gas Block was awarded by the Government of India to a
Joint Venture comprising of various entities namely, the Petitioner herein,
CEHL and ONGC. In reply, the Respondent took the objection of non-
joinder of CEHL and ONGC. In the rejoinder thereto, the Petitioner stated as
under:
"18. The Respondent's avennents that the Petitioner
does not have locus standi to bring the present Petition
is false and inc01Tect. As pleaded in paras 1.1 and 2.1
of the Petition, the Petition has been filed by the
Petitioner ( acting on behalf of itself as well as its JV
Partners). The Petitioner, as the Operator of the Gas
Block, has been authorised under clause 4.5.3 of the
JOA (relevant extract of which has been produced by
the Respondent as Document No. R-1) along with its
addenda, to inter alia represent itself and the other
two N Partners i.e., Cairn Energy Hydrocarbons
Limited ("CEHL") and Oil and Natural Gas
Corporation Limited ("ONGC"), before all courts in
relation to the petroleum operations and perform all
other acts of a similar nature that are necessary or
proper in connection to the same. The filing of the
present Petition is squarely covered by the said clause
of the JOA.
19. Further, in line with the JOA, the standard GSA
that was signed and uploaded by the Respondent on
12.01.2023 (as well as the filled in GSA dated
27.01.2023), also expressly provides that "ONGC and
CEHL has agreed to appoint Vedanta as its
authorized representative for the purposes of set out
in this Agreement". Therefore, the Petitioner is duly
authorised to file the present Petition (as well as
invoke arbitration proceedings and sign the GSA).
20. Notwithstanding the above, and for abundant
caution, true copies of letters confirming the
Petitioner's authority to represent its N Partners in the
present proceedings as issued by CEHL dated
17.08.2023 and ONGC dated 14.09.2023 are produced
herewith as Document No. 25 (Colly.).
21. The presence of the other parties to the GSA is
therefore neither necessary nor proper for the
adjudication of the present Petition. Consequently, the
Respondent's averments in relation to the Petitioner's
authority and locus standi for c01mnencement of
arbitration proceedings and filing the present petition
are denied as inconect and misleading. These are, in
any case, matters between the N Partners and of no
concern to the Respondent.
22. Evidently, the objection is raised as an afterthought
simply to delay the appointment of a Tribunal as no
ground regarding the Petitioner's lack of authority or
improper issuance of the Notice Invoking Arbitration
dated 07.07.2023 (Document No. 23 produced along
with the Petition) was taken by the Respondent in its
reply to the same dated 04.08.2023 (Document No. 24
produced along with the Petition).
23. In light of the above, it is denied that the present
Petition has been filed by the Petitioner in its
individual capacity (and not acting on behalf of its JV
Partners), that the Petitioner is not authorised to do
so, that the presence of the JV Partners is necessary
or proper for the appointment of an arbitrator or
commencement of arbitration proceedings, that the
present Petition ought to be rejected for their non-
joinder, or that the present Petition is in any manner
bad in law for not being signed by the other N
Partners." (emphasis supplied)
24. At this juncture it is also pertinent to reproduce the letter given by the
CEHL to the Petitioner herein and the same reads as under:
25. All these documents were presented in the Court when the Judgment
dated 28.07.2025 was passed. In addition, the SLP against the Judgment has
already been disposed of by the Apex Court, by holding that the question of
arbitrability/existence of an arbitration agreement are left open to be raised
by the before the Arbitral Tribunal.
26. The application of the Petitioner herein for joinder of CEHL and
ONGC is still pending before the learned Arbitral Tribunal and a decision is
yet to be taken as to whether CEHL and ONGC are necessary party to the
arbitration proceedings or not. In case the learned Arbitral Tribunal rejects
the said Application, then the entire issue that is now sought to be raised
before this Court becomes redundant. Therefore, the present Application, at
this juncture, seems to be premature.
27. In any event, in the opinion of this Court, all these questions can be
raised by the Respondent before the learned Arbitral Tribunal by filing an
application under Section 16(1) of the Arbitration Act and it would be for
the Arbitral Tribunal to take a decision as to whether the dispute would fall
under the category of an international commercial arbitration or not, which
is line with the Judgment of a Co-ordinate Bench of this Court in Hala
Kamel Zabal (supra).
28. In view of the above, this Court is of the opinion that the present
Application is not maintainable at this juncture and accordingly ought to be
dismissed.
29. It is made clear that the observations made in this Application are
entirely prima facie in nature.
30. This Application under Section 151 of the CPC has been filed by the
Petitioner seeking modification of Para 33 in the Judgment dated
28.07.2025. Relevant portions of the Judgment dated 28.07.2025 reads as
under:
"32. The Petitioner has already appointed Justice L.
N. Rao, former Judge of the Supreme Court of India, as
its nominee Arbitrator. This Court appoints Justice
Ravinder P. Bhatt, former Judge of the Supreme Court
of India, as the nominee Arbitrator of the Respondent.
The nominee Arbitrators are requested to proceed
further and appoint the Presiding Arbitrator.
33. The learned Arbitrators shall be entitled to fees
as per the Fourth Schedule of the Arbitration &
Conciliation Act, 1996.
34. The learned Arbitrators are also requested to
file the requisite disclosure under Section 12(2) of the
Arbitration & Conciliation Act, 1996 within a week of
entering on reference."
31. This Court vide Judgment dated 28.07.2025, appointed Justice
Ravinder P. Bhatt, former Judge of the Supreme Court of India, as the
nominee Arbitrator of the Respondent and the nominee Arbitrators were
requested to appoint the Presiding Arbitrator so that an Arbitral Tribunal can
be constituted. Material on record indicates that an Arbitral Tribunal was
constituted and Justice Deepak Gupta, former Judge of the Supreme Court
of India was appointed as the Presiding Arbitrator.
32. Material on record also discloses that the Respondent herein
approached the Apex Court by filing Special Leave to Appeal (C)
No.22924/2025, challenging the Judgment dated 28.07.2025, which came to
be disposed of by the Apex Court vide Order dated 22.08.2025.
33. It is stated that the learned Arbitral Tribunal proposed and sought the
Parties‟ consent to apply the fee schedule prescribed under the Schedule of
the Delhi International Arbitration Centre (DIAC) (Administrative Cost and
Arbitrators Fees) Rules 2018, instead of the fees set out under the Fourth
Schedule of the Arbitration Act, as directed by this Court in Paragraph 33 of
the Judgment dated 28.07.2025, wherein this Court has held that the learned
Arbitrators shall be entitled to fees as per the Fourth Schedule of the
Arbitration. It is further stated that while the Petitioner conveyed its
willingness to comply with the DIAC Schedule, the Respondent sought three
weeks‟ time to obtain instructions from the competent authority of the
Respondent Company regarding such revision. It is stated that on the
instructions of the competent authority, the Respondent declined the request
of the learned Arbitral Tribunal in light of the specific directions of this
Court in Paragraph No.33 of the Judgment dated 28.07.2025.
34. It is, therefore, the case of the Petitioner that the stand of the
Respondent in declining the request of the learned Arbitral Tribunal is
unfair, and unjustified. As such, the present Application is filed only to the
extent of seeking modification of paragraph No.33 of the Judgment dated
28.07.2025.
35. Reply to the instant Application was filed by the Respondent, stating
that moment this Court passed the Order appointing the Nominee Arbitrator
of the Respondent, this Court became functus officio. It is stated in the reply
that there is no error apparent on the face of the record and, therefore, the
present Application is not maintainable. Reliance has been placed on the
Judgment of the Apex Court in ONGC Ltd. v. Afcons Gunanusa JV, (2024)
4 SCC 481.
36. Heard the learned Senior Counsels for the parties and perused the
material on record.
37. The Apex Court in ONGC Ltd (supra) has observed as under:
"128. We believe that the directives proposed by the
Amicus Curiae, with suitable modifications, would be
useful in structuring how these preliminary hearings
are to be conducted. Exercising our powers conferred
under Article 142 of the Constitution, we direct the
adoption of the following guidelines for the conduct of
ad hoc arbitrations in India:
"1. Upon the constitution of the Arbitral
Tribunal, the parties and the Arbitral Tribunal
shall hold preliminary hearings with a maximum
cap of four hearings amongst themselves to
finalise the terms of reference ("the Terms of
Reference") of the Arbitral Tribunal. The
Arbitral Tribunal must set out the components of
its fee in the Terms of Reference which would
serve as a tripartite agreement between the
parties and the Arbitral Tribunal.
2. In cases where the arbitrator(s) are appointed
by parties in the manner set out in the
arbitration agreement, the fees payable to the
arbitrators would be in accordance with the
arbitration agreement. However, if the Arbitral
Tribunal considers that the fee stipulated in the
arbitration agreement is unacceptable, the fee
proposed by the Arbitral Tribunal must be
indicated with clarity in the course of the
preliminary hearings in accordance with these
directives. In the preliminary hearings, if all the
parties and the Arbitral Tribunal agree to a
revised fee, then that fee would be payable to the
arbitrator(s). However, if any of the parties
raises an objection to the fee proposed by the
arbitrator(s) and no consensus can be arrived at
between such a party and the tribunal or a
member of the tribunal, then the Tribunal or the
member of the Tribunal should decline the
assignment.
3. Once the Terms of Reference have been
finalised and issued, it would not be open for the
Arbitral Tribunal to vary either the fee fixed or
the heads under which the fee may be charged.
4. The parties and the Arbitral Tribunal may
make a carve out in the Terms of Reference
during the preliminary hearings that the fee
fixed therein may be revised upon completion of
a specific number of sittings. The quantum of
revision and the stage at which such revision
would take place must be clearly specified. The
parties and the Arbitral Tribunal may hold
another meeting at the stage specified for
revision to ascertain the additional number of
sittings that may be required for the final
adjudication of the dispute which number may
then be incorporated in the Terms of Reference
as an additional term.
5. In cases where the arbitrator(s) are appointed
by the Court, the order of the Court should
expressly stipulate the fee that the Arbitral
Tribunal would be entitled to charge. However,
where the Court leaves this determination to the
Arbitral Tribunal in its appointment order, the
Arbitral Tribunal and the parties should agree
upon the Terms of Reference as specified in the
manner set out in draft practice direction (1)
above.
6. There can be no unilateral deviation from the
Terms of Reference. The Terms of Reference
being a tripartite agreement between the parties
and the Arbitral Tribunal, any amendments,
revisions, additions or modifications may only be
made to them with the consent of the parties.
7. All High Courts shall frame the rules governing
arbitrators' fees for the purposes of Section
11(14) of the Arbitration and Conciliation Act,
1996.
8. The Fourth Schedule was lastly revised in the
year 2016. The fee structure contained in the
Fourth Schedule cannot be static and deserves to
be revised periodically. We, therefore, direct the
Union of India to suitably modify the fee structure
contained in the Fourth Schedule and continue to
do so at least once in a period of three years.""
(emphasis supplied)
38. This Court is of the opinion that had the Respondent consented to the
request of the learned Arbitral Tribunal, this Court could have modified
Paragraph No.33 of the Judgment dated 28.07.2025, on mutual consent.
However, for reasons best known to the Respondent, it is not willing to
accede to the request of the learned Arbitral Tribunal to charge the fee as per
the fee prescribed under the Schedule of the DIAC. Without the consent of
the Respondent, this Court will not have the jurisdiction to alter Paragraph
No.33 of the Judgment dated 28.07.2025. The Respondent is correct in
stating that it cannot be said that there is any error apparent on the face of
the record in the Judgment dated 28.07.2025.
39. Furthermore, this Court directed that the arbitration proceedings
would be conducted under the aegis of DIAC, the learned Arbitrators would
certainly have been entitled to the fee schedule fixed by the DIAC.
However, since this Court held that the Arbitration will be ad-hoc and not an
institution-based arbitration, the fee payable to the learned Arbitrators would
be as per the Fourth Schedule of the Arbitration Act.
40. In view of the objection raised by the Respondent, this Court is not
able to accede to the Petitioner‟s request of modification of the Judgment
dated 28.07.2025, as prayed for by the Petitioner.
41. Accordingly, the Application is dismissed.
SUBRAMONIUM PRASAD, J
JANUARY 23, 2026
Rahul
