06 August 2021| NTPC Limited v. Afcons RN Shetty and Co. Pvt. Ltd. JV | OMP (T) Comm. 37 of 2021 | C Harishankar J

A single-judge bench of the Delhi High Court affirmed the tribunal’s order by which it had fixed separate fees for counterclaim that for considering the claim.

The court rejected NTPC’s argument that once the parties agreed to abide by the Fourth Schedule, the tribunal could not resort to Section 38 ACA. And, the Fourth Schedule prescribed fees for “sum in dispute”, which meant the claim and counterclaim in totality.

The court ruled that the arbitrators' fees are an integral part of the costs to be fixed by the arbitral tribunal under Section 38 (1) ACA. Therefore, though the proviso gives discretion (“may”) if the tribunal does fix separate fees, it is not irregular or contrary to the statute.

The court also said that Section 38 (1), 31 (8) and 31A are inextricably interlinked, and the expressions “deposit”, “costs”, and “fees” are intertwined by the statute.

Following the Fourth Schedule ACA, the three-member tribunal fixed a fee of INR 28,64,520 per head, considering the claim

amount was 37 crore plus. Later, the tribunal set 19,13,615 per head as fees for the counter-claim of around 19 crores.

The tribunal rejected NTPC’s application for modification by an elaborately reasoned order. It concluded that the tribunal was entitled under the proviso of Section 38 ACA to fix separate fees. It also relied on precedent from the Delhi High Court. Aggrieved, NTPC applied to the court under Section 14 ACA to terminate the tribunal's mandate (for de jure inability). Harishankar J dwelled briefly on maintainability but agreed with NTPC that there was no other remedy from a tribunal’s order fixing fees. He said he was not inclined to non-suit the petitioner on that ground.

Secondly, the English text of item 6 of the Fourth Schedule was misleading, and the Hindi text was correct: the Hindi version is clear, and there is a cap on the total fees of 30 lakhs rupees; it appeared from the English version that the cap was for 0.5 per cent over and above 20 crores.

The two versions are as follows:

On the question of which version to follow, the court said that the correct provision was not Article 343 of the Constitution (the official language of the Union) as NTPC suggested but Article 348 (1) (b) (ii) (English language to be used to Acts, Bills etc.).

Read the judgment here.