CIVIL REVISION NO.5743 OF 2006 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 14, 2008 Punjab State Warehousing Corporation, Gurdaspur .....Petitioner VERSUS V.P.Anand and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sanjeev Shama, Advocate, for the petitioner. Mr. Rajesh Garg, Advocate, for respondent No.2. **** RANJIT SINGH, J. (ORAL) Punjab State Warehousing Corporation has filed this revision petition, impugning the order passed by the District Judge, Gurdaspur, wherein direction has been issued for the petitioner to deposit a sum of Rs.18,000/- with interest @ 6% from 19.8.2003 till the date of deposit. The Arbitrator has been directed to file an arbitration award/file on the deposit of this amount. The dispute arose between the petitioner and respondent No.2 and in terms of the arbitration agreement, respondent No.1 was CIVIL REVISION NO.5743 OF 2006 :{ 2 }: appointed as an Arbitrator on 4.10.2002. As per the appointment order, total fee payable to respondent No.1 was fixed as Rs.4,000/-. Respondent No.1 statedly accepted the appointment letter without any reservation and initiated the proceedings. During the course of arbitration proceedings, the Arbitrator allegedly fixed his fee at Rs.5,000/- per hearing alongwith Rs.100/- as costs and another Rs.100/- as conveyance charges. Another sum of Rs.5,000/- has been added as costs for case study. The Managing Director of the Corporation, however, cancelled the appointment of the Arbitrator vide office order dated 23.3.2003 and in his place appointed one T.C.Gupta. Despite the cancellation order, respondent No.1 continued to conduct the proceedings and ultimately passed an exparte award on 19.8.2003. The claim of respondent No.2 filed before the Arbitrator is allowed whereas the counter-claim filed by the petitioner stands rejected in its entirety. This award was challenged by the petitioner by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”). On notice being issued, respondent No.1 was asked to place on record the arbitration file. Respondent No.1, however, filed an application that costs of Rs.33,000/- in terms of Section 31 (8) and 39 of the Act were still due. The petitioner filed reply to the said application, stating that fixation of fee by the Arbitrator upon self assessment is arbitrary and can not be allowed. The trial Court has, however, allowed the application filed by respondent No.1 through the impugned order, which is under challenge in the present revision CIVIL REVISION NO.5743 OF 2006 :{ 3 }: petition. The main grievance of the petitioner flows from Section 39(2) of the Act. It provides that where arbitral tribunal refuses to deliver its award except on payment of the costs demanded by it, the Court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment into Court by the applicant of the costs demanded, and shall, after such inquiry, if any, as it thinks fit, further order that out of the money so paid into Court it shall be paid to the arbitral tribunal by way of costs such sum as the Court may consider reasonable and that the balance of the money, if any shall be refunded to the applicant. Reference is also made to Section 39(3) of the Act, which says that an application under sub-Section (2) may be made by any party unless the fees demanded has been fixed by written agreement between him and the arbitral tribunal and that the arbitral tribunal shall be entitled to appear and be heard on any such application. Respondent No.2 has filed reply to the revision petition. Learned counsel appearing for respondent No.2 has drawn my attention to an order passed in another Civil Revision No.2752 of 2007 filed by the petitioner, where identical issue is decided. Arbitrator is also the same in this case. The counsel would point out that in Civil Revision No.2752 of 2007, present case was referred to as identical to the said revision petition. Mr.Sharma, however, would point out slight distinction, which is to the effect that application under Section 34 of the Act in the present case has not been dismissed by CIVIL REVISION NO.5743 OF 2006 :{ 4 }: the Court whereas in the remaining three revision petitions, the said application was dismissed by the trial Court. In the order impugned in revision petition No.2752 of 2007, the parties to the award were given right to file objections only on payment of their respective shares of fee etc. The grievance in the said case was also in regard to quantum of fee and costs fixed by the Arbitrator. Having noticed all this, this Court issued direction that since the amount had been deposited, the Additional District Judge, Moga, (trial Court in this case), would decide the objections filed by the petitioner on merits after providing full opportunity to the parties. Counsel appearing for the petitioner says that the petitioner would not have any objection in depositing the amount so that the award can be filed. The counsel, however submits that payment to the arbitrator should be made subject to the outcome of the decision in application under Section 39 of the Act. This prayer has not received any objection from the counsel for the respondents. It is otherwise also fair. Since the application filed by the petitioner under Section 34 of the Act has not been disposed of and directions have been issued for the petitioner to deposit the costs and fee assessed by the Arbitrator, it is but fair that the same is deposited by the petitioner within a period of ten days from today. The trial Court, however, would decide the application filed by the petitioner under Section 39 of the Act and determine the amount due to the arbitrator. This is what is even envisaged by Section 39 of the Act. On the deposit of the requisite amount, as directed in the impugned order, CIVIL REVISION NO.5743 OF 2006 :{ 5 }: the application moved by the petitioner be taken up for consideration by the trial Court on merits and decided by giving proper opportunity to the respective parties. The trial Court would be at liberty to refund any amount to the petitioner, if it comes to the conclusion that the amount deposited is not due to Arbitrator. If, however, the trial Court finds that the amount sought by the Arbitrator is due to him, then the same shall be disbursed to the Arbitrator. The petition is accordingly disposed of. February 14 ,2008 ( RANJIT SINGH ) khurmi JUDGE