Rajasthan High Court
M/S Harinarayan Khandelwal ... vs Indian Institute Of Chartered ... on 8 September, 2022
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Application No. 151/2021
M/s Harinarayan Khandelwal (Government Contractor And
Engineer), Addressed At A-1, Govindam, Koolwal Bhawan, Janta
Colony, Jaipur (Rajasthan) PIN Code-302004.
----Claimant /Non-Applicant
Versus
1. Indian Institute Of Chartered Accountants Of India,
Through Its Secretary, Icai Bhawan, Post Box No. 7100,
Indraprastha Marg, New Delhi-110002
2. The Secretary, Indian Institute Of Chartered Accountants
Of India, D-1, Institutional Area, Jhalana Doongri, Jaipur-
302004.
....Respondent / Applicants
3. The Managing Director, Vivek Bhonsle Architect Pvt. Ltd.,
C-001, Shri Sai Towers, Sodawala Lane, Borivali (W),
Mumbai-400092. Present Address- The Managing
Director, Vivek Bhole Architect Pvt. Ltd., Pinnacle Business
Part, 1St Floor, Shanti Nagar, Mahakali Road, Midc,
Andheri East, Mumbai.
...... Performa Respondent
4. Honble Justice (Retd.) Mr. Mahesh Bhagwati, R/o Sukh
Shanti, L-44, Income Tax Colony, Tonk Road, Durgapura,
Jaipur.
----Respondents
For Petitioner(s) : Mr. Ankit Sareen
For Respondent(s) : Mr. Shailesh Prakash Sharma
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment / Order
08/09/2022
1. The present matter comes up on Civil Misc. Application filed
by the Complainants-respondents No.1 & 2 who for the purpose of
this application be termed as 'applicants'.
(2 of 3) [CMAP-151/2021]
2. Respondents-applicants have filed this application with the
prayer that erstwhile Arbitral Tribunal comprising of sole arbitrator
be directed to refund the amount of Rs.3,30,204.50/- paid in
excess beyond his entitlement.
3. It is contended by counsel for the respondents-applicants
that the dispute is with regard to fees charged by the arbitrator
and was raised by the respondent-applicant. Commercial Court
vide order dated 16.10.2020, decided the dispute with regard to
fees and directed the arbitrator to return 50% of the fees. It is
contended that due to some erroneous calculation, excess fees
was paid to the arbitrator and the same is required to be refunded
by the arbitrator.
4. Counsel for the claimant-non-applicant contends that parties
have amicably disposed of the matter and the matter pertains to
fees was considered by the Apex Court in "Oil and Natural Gas
Corporation Ltd. Vs. Afcons Gunanusa JV" Arbitration
Petition (Civil) No.05/2022 decided on 30.08.2022, wherein
the Apex Court has held that the term "sum in dispute" in the
Fourth Schedule of the Arbitration Act refers to the sum in dispute
in a claim and counter-claim separately, and not cumulatively.
Consequently, arbitrator shall be entitled to charge a separate fee
for the claim and the counter-claim in an ad hoc arbitration
proceeding.
5. It is contended by counsel for the claimant-non-applicant
that the Commercial Court has passed the order and this Court
cannot execute the order passed by the Commercial Court.
6. I have considered the contentions.
7. The Commercial Court has already passed the order dated
16.10.2022 directing the arbitrator to refund 50% of the fees. It is
(3 of 3) [CMAP-151/2021]
pertinent to note that vide order dated 27.08.2021, this Court had
clarified that the order of the Commercial Court regarding
payment of fees of the arbitrator shall be complied with by both
the sides. Since the Commercial Court has already decided the
application and has directed the arbitrator to refund 50% of the
fees and this Court has already passed an order in this regard,
hence, I am not inclined to entertain the present civil misc.
application.
8. If the respondents-applicants have erroneously paid fees in
excess, no relief as such can be granted by this Court and he has
to approach the Commercial Court seeking refund of the fees paid
in excess of the order passed by the Commercial Court.
9. Accordingly, present Civil Misc. Application is dismissed.
(PANKAJ BHANDARI),J
ARTI SHARMA /11
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