@JUDGMENTTAG-ORDER
1. This is an application under Sections 5 and 12 of the Arbitration Act, 1940 inter alia for (1) leave to revoke the authority of the arbitrators and appointment of arbitrators in their place and stead [prayer (b)]; (ii) injunction restraining the respondents from proceeding with the arbitration pending decision of trie application [prayer (c) & (d)]. Prayer (a) has not been pressed.
2. It is not in dispute that the Technical Collaboration Aggreement containing the Arbitration Clause is valid and binding between the parties. The said Clause also provides that the conduct of arbitrator including fees for the same will be governed by the ICC, rules.
3. The petitioner challenged the validity of the said agreement in this Court on the ground that the same is violative of the provision of the Foreign Exchange Regulation Act. The said agreement was however held by me to be not violative of the said Act and that the same was also held to be valid. The said judgment and decision was challenged in the Supreme Court and the Supreme Court also took the same view in the case of
4. On Nov. 17, 1988 the respondent No. 1 made a request to the Court of Arbitration containing the statement of claim. The respondent No. 1 nominated Prakash Narain, respondent No. 4, since deceased, as its arbtirator.
5. On Feb. 5, 1990 the petitioner appointed the respondent No. 5 as its arbitrator. By its letter dated August 14, 1990 the respondent No. 2 refused to accept the nomination of respondent No. 5 and fixed U.S. $60,000 as advance on costs subject to later adjustments and requested the petitioner and the respondent No. 1 to pay U.S. $ 15,000 each.
6. The petitioner challenged the refusal of the respondent No. 2 to accept the nomination. By a judgment and order dated May 14, 1991 in the case of Burn Standard Company Ltd. v. International Chamber of Commerce (Court of Arbitration) this Court having regard to the statements made on behalf of the petitioner recorded in petition directed the respondent No. 2 to reconsider its decision not to accept the nomination of the respondent No. 4. By its letter dated June 24, 1991 the respondent No. 2 accepted the nomination of respondent No. 5.
7. By a letter dated June 24, 1991 the respondent No 2 in terms of Article 9.3 read with Appendix III fixed 0.6 $60.000 as advance on costs of arbitration and directed each party to pay U.S. $ 15,000. By its letter dated August 9, 1991 the respondent No. 2 repeated its claim for payment of the fees and also appointed the respondent No. 3 as the Chairman of the arbitral tribunal. The petitioner and the respondent No. 1 paid U.S. $ 15,000 each and this fact was recorded in a letter dated Sept. 23, 1991 of the respondent No. 2.
8. On March 19, 1992 the petitioner filed counter statement denying the allegations of the Statement of Claim and counter claim of Rs. 32:42 crores.
9. The respondent No. 3 drew terms of reference. At a meeting of the arbitration held on August 21, 1993 the terms of reference was settled as would appear from the minutes of the meeting of the arbitrators. This was the only meeting held by the arbitrators at that point of time.
10. On Oct. 13, 1993 the respondent No. 2 estimated U.S. $ 75,000 and U.S. $ 267,000 as advance on costs respectively payable by the respondent No. 1 and the petitioner subject to later adjustment. By its letter dated January 6, 1994 the respondent No. 2 intimated that it decided to fix the said amount as advance on costs of arbitration and after adjustment of U.S. $ 15,000 demanded payment of U.S. $ 60,000 and U.S. $252,000 respectively from the respondent No. 1 and the petitioner.
11. The petitioner''s advocate by its letter dated January 7, 1994 requested the said Chairman and the arbitrators to furnish the certified copy of its decision whereby it fixed the said advance on costs as it desired to challenge the same in Court.
12. By its letter dated January 18, 1994 the respondent No. 2 intimated the Advocate for the petitioner that there was no basis "upon which the Court''s decision of January 5, 1994 can be challenged before this Court" and declined to furnish the certified copy of its said decision.
13. The respondent No. 2 fixed the "Advance on costs" of arbitration at U.S. $75,000 and U.S. $ 267,OdO respectively payable by the respondent No. 1 and the petitioner "subject to later adjustments" on -. the basis of the minimum and maxmimum scale of fees laid down by Appendix III of ICC Rules. It cannot be predicted, therefore, how much would be the total fees payable by the petitioner and the respondent No. 1 as arbtirators'' fees. At present rate of exchange the fees of arbitrators may even exceed the claim of the parties.
14. It must be noted, however, that ICC, the respondent No. 2 has not chosen to appear or to affirm an affidavit in this proceeding to justify its claim for fees despite service of notice and took appeal that the action in this Court, although admitted the judgment upon award, will abide by the Indian Arbitration Law and it will be filed in this Court in view of the previous Section 33 application which was decided by this Court and affirmed by the Supreme Court.
15. The question which has been raised on behalf of the petitioner in this application is that despite the fixation of scale of fees by the ICC Rules, whether the domestic Court can intervene and hold that such demand is excessive, exorbitant and extortionate. If the answer to this question is in the affirmative, then the next question is whether demand of such excessive fees would amount to misconduct, and, if so, whether the Court can revoke the authority of the arbitrators u/s 5 of the Arbitration Act, 1940 and appoint new Arbitrators u/s 12 of the said Act.
16. Further question that arises is whether the Court has power to relieve the petitioner of the fees payable under ICC Rules i.e. whether the Court is empowered not to insist upon the enforcement of the ICC Rules and compel a party to pay inequitable fees. If the Court is of the view that payment of such excessive, exorbitant and extortionate fees would be such as would amount to denial of justice, would it not absolve the applicant of its obligation to pay such fees and direct appointment of arbitrators which would not involve payment of such exorbitant fees.
17. The learned Advocate for the petitioner has relied upon the judgment and decision in the case of Coppee Lavalin SA/NV v. Ken-Ren Chemical & Fertilizers Ltd. (in liqn.) and Voest Alpine AG v. Ken Ren Chemical & Fertilizers Ltd. (in Liqn.) reported in (1994) 2 All ER 449 and has submitted that domestic Court can intervene even though the parties agreed to be bound by the ICC Rules. In this connection relevant extracts from the judgment of Lord Mustill are set out below:--
"..... It is sufficient to say that for good practical reasons the rule-makers have not set out to produce a complete voluntary code of abritration, the reasons being first that this task would be impracticable (as the framers of the UNCITRAL Model Law on International Commercial Arbitration (1985) (for which see Mustil and Boyd Commercial Arbitration (2nd Edn. 1989) App. 3 730) tacitly acknowledge), and second that there are several aspects of the relationship where breakdown can only be remedied by enlisting the coercive powers of a national Court".
"..... Each domestic Court has its own practical methods, developed in the context of litigation, which it will instinctively tend to bring to bear when similar questions arise in the context of arbitration; each country will have its own traditions of arbitration and its own traditions of the relationship between arbitrator and the Courts."
"..... For the reasons there given I see nothing either express or implied in the rules to inhibit the Court from deploying whatever national interim remedies may be necessary to suit the justice of the individual case."
"..... The fact that the parties have chosen ICC arbitration does, as I shall suggest, have something important to say about the way in which the parties want their disputes to be resolved and hence about the spirit in which the national Court should approach a request for the exercise of powers created by the local law. But it is quite another matter to suggest that the mere presence of the rules dictates a policy of total non-intervention. At least so far as concerns the English Court, the tenor of the discussion in Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd. reported in (1993) 1 All ER 664 : (1993) AC 384 shows that no such policy exists."
18. The learned Advocate for the petitioner has referred to the several portions of the judgment by Lord Justice Mustill which is a minority view of this connection.
19. It has accordingly been submitted by the learned Advocate for the petitioner relying upon the decision that the domestic Courts have jurisdiction and are empowered to intervene despite the existence of ICC Rules to regulate the arbitration proceedings by the domestic law i.e. Indian Law, and to grant remedies as may be necessary to suit the justice of the case.
20. The learned Advocate has further submitted that though the judgment was in the context to the question whether the Court was empowered to grant an order for security for costs though ICC Rules made no provision therefor, the above is the law laid down by the House of Lords.
21. The learned Advocate for the petitioner has also relied upon the judgment and decision in the case of
(i) Excess or refusal of jurisdiction by arbitrator;
(ii) Misconduct of arbitrator;
(iii) Disqualification of arbitrator;
(iv) Charges of Fraud;
(v) Exceptional cases;
22. The Supreme Court following Privy Council further held that the principle of equity must be applied to modern arbitration.
23. It has been submitted that demand of such excessive, exorbitant and extorrtionate fees amounts to denial/refusal of justice and inequitable. Demand of such fees would fall under the category of "Exceptional Circumstances" which is one of the grounds held by Supreme Court for revocation of authority of the arbitrators.
24. It has also been submitted by learned Advocate for the petitioner that there is no doubt that demands of exorbitant fees is a misconduct. In support of his contention he has relied upon 2 Halsbury, 4th Edition, Art. 574 page 300.
25. He has further submitted that even assuming that there is no misconduct of the arbitrators and there are no exceptional circumstances and the Court is not inclined to revoke the authority on those grounds. The learned advocate has further submitted that the Court is not powerless and is empowered not to insist upon the enforcement of ICC Rules and compel the parties to pay the inequitable fees. He has referred to Section 20 of the Specific Relief Act, 1963 which provides that specific performance is discre-tionary and the Court is not bound to enforce the contract or the rules. He has also submitted that the Court would be guided by the equitable principle (Sections 20(1) and 20(2)(a)(b). It has also been submitted by the leanred Advocate for the petitioner that the Court will not enforce a contract when it is inequitable to do so. He has referred to Sections 20(2)(b)(c) of the Specific Relief Act, 1963 and 44 Halsbury, 4th Edn. paras 466, 467 and 473. In this connection he has referred to the judgment and decision in the case of Nickels v. Hancock reported in (1855) 44 ER 117.
26. It has been submitted by learned advocate for the petitioner that the judgment and decision in the case of trickles v. Hancock (supra) reported in (1855) 44 ER 117 wherein it has been laid down that the Court may refuse to enforce an award on submission to arbitration if the submission itself involve hardship.
27. The said discretion has been referred to in 44 Halsbury, 4th Edition, para 473 page 324.
28. It has been submitted by the learned Advocate for the petitioner that despite the existence of ICC Rules the domestic court can intervene and is empowered to hold that the arbitral fees demanded are excessive, exorbitant and extortionate. The same is inequitable and demand of such fees is ''exceptional circumstances'' and in any event amounts to misconduct. The Court, therefore, is entitled to revoke the authority of the appointed arbitrators and appoint arbitrator or arbitrators.
29. It has been submitted that the counter statement/ counter claim is intermingled with the claim and one cannot be decided without the other. Therefore, if the counter claim is not allowed to be adjudicated being consequence to the claim it will cause failure of justice, and non-consideration of counter claim by the Arbitrators when they are entitled to set off the proved counter claim is a misconduct being done by the Arbitral Tribunal.
30. It has been contended by Mr. Bhaskar Gupta, learned Advocate for ''respondent on the other hand, that the petitioner previously challenged the arbitration agreement being a Clause contended in the Technical Collo-boration agreement in the Court. The said contention of the petitioner was, however, rejected. The petitioner challenged the finding in the Supreme Court. The Supreme Court also rejected the contention of the petitioner. Therefore, it has been submitted that the petitioner is bound by the ICC Rules under which the arbitration is to be governed and the fees and costs are to be deposited in terms of the said rules. It cannot therefore be said according to the respondent that the fees demanded are exorbitant.
31. Mr. Gupta has also distinguished the judgment of the House of Lords reported in (1994) 4 All ER 449 and has submitted that the question is not applicable and the principles decided relate to order for security for 9osts and cannot have any application in the instant case.
32. It has also been contended by the respondent that the hardship if any is self-induced and the party cannot be relieved of the contractual obligations that is the ICC Rules.
33. He has further submitted that the abritration clause is binding between the parties and the Court should come in aid of enforcing arbitration clause! instead of allowing the parties to reside from the same.
34. The contention of the learned Advo cate for the respondent is that Arbitral bodies, such as, Indian Chamber of Commerce have also laid down the scale of fees. Therefore, the scale of fees laid down by ICC Rules is not novel. There is no reason why the petitioner would not pay the fees laid down by the ICC Rules.
35. This is also the contention of the respondent that the petitioner did not challenge the ICC Rules but has contended that the fees demanded in accordance with ICC Rules are excessive, exorbitant and extortionate. Non-payment of the fees by the applicant would amount to complete denial of justice. For, the defence of the petitioner and its counter claim are inextricably linked and cannot be separated or segregated. Refusal to entertain the counter claim would defeat the ends of justice. Hence, besides the demand of such fees being misconduct by itself, would also fall under category of ''exceptional circusmtances'' laid down by the Supreme Court in the case of
36. The contention of the petitioner is that it has not been shown that the counterclaim is not bona fide. The counter-claim is to recover the just dues of the petitioner. The petitioner would be unable to recover its just dues and as such remedy will not be sufficient for the petitioner and the rules in such circumstances cannot stand in the way of rendering justice. In the aforesaid circumstances it cannot be said also that such excessive, exorbitant fees was self imposed.
37. I have considered the respective submissions of the learned Advocate for the parties. It appears that on the 2nd Dec. 1988 the petitioner filed a petition in this Court u/s 33 of the Arbitration Act (Matter No. 5696 of 1980) challenging the existence and validity of the arbitration agreement on the ground that the requisite permission u/s : 28(1)(b) of the Foreign Exchange Regulation Act, 1973 was not obtained in regard to the TCA. By a judgment and order dated the 6th Dec. 1989 the said petition was dismissed.
38. The petitioner thereafter filed a petition for Special Leave to Appeal to the Supreme Court under Art. 136 of the Consti-tution by a judgment and order dated 3rd April, 1991 the Supreme Court dismissed the SLP on merits with costs and upheld, inter alia, the existence, legality and validity of the arbitration clause and the agereement and the reference to the International Court of Arbitration pursuant to the said arbitration clause.
39. The said judgment is also reported in
"Before we part, we, are constrained to observe that we were pained at the attitude of the appellant company attempting to that a valid agreement, part performed by the payment of the first instalment, on hyper-technical grounds, an attitude which would scare away colloboraters and tarnish the image and credibility of our entrepreneurs abroad. We do hope the appellant company will honour it obligations under the agreement and settle its differences with the respondent across the table in a business like manner rather than litigate.
For the aforeasid reasons we dismiss this appeal with costs.
40. Costs quantified at Rs. 5,000/-"
After the dismissal of the petition by the Supreme Court, the petitioner appointed Dr. Debi Prasad Pal (then practising as Senior Advocate) as Arbitrators, on its behalf. However, the petitioner subjected such appointemnt to certain terms and conditions, such as that the fees and costs of Dr. Pal would be borne by the petitioner. This was contrary to the rules of arbitration of the International Chamber of Commerce by which the parties agreed to be bound. The International Chamber of Commerce (ICC) drew the attention of the petitioner to the relevant articles of the rules and asked the petitioner to withdraw the; conditions imposed by it to enable the ICC to confirm the appointment of Dr. Pal. The petitioner, however, refused to do so and again filed a petition in this Court u/s 41(b0 of the Arbitration Act, 1940 challenging the decision of ICC. During the course of hearing of the application on 14th May, 1991, the petitioner informed this Court that it would not insist on the conditions for appointment of Dr. Pal. Such statement was recorded by this Court in its order dated 14th May, 1991 and the application of the petitioner was disposed of.
41. Thereafter the appointment of Dr. Pal as Arbitrator was confirmed by ICC after the petitioner withdrew the conditions for appointment.
42. It appears that the petitioner filed it counter statement before the ICC bn the 19th March, 1992 (i.e. 3 1/2 years after the statement of claim was filed by MIL). In the counter statement in paragraph 7 page 35, the petitioner made a counter claim amounting to Rs. 32.42 crores.
43. Under the ICC Rules of Conciliation and Arbitration, the Court of Arbitration is entitled to fix separate advances on costs for the principal claim and the counter claim. After the petitioner filed its counter claim, ICC fixed separate advances on the costs for the claim of MII and the counter claim of the petitioner and communicated the same by its letters dated 13th Oct. 1993 and 6th Feb. 1994. MII had duly paid what was asked from it by ICC by way of advances and costs for its principal claim. The petitioner had only made the initial payment of 15,000 U.S. dollars by way of its share of costs as demanded by ICC, long before the filing of the counter-claim by the petitioner and fixation by the ICC of the advance and costs in respect of the counterclaim.
44. Instead of paying its share of the advance and costs in respect of its counter claim as asked for by ICC, the petitioner filed the first application in this Court under Sections 5, 6, 10, 11, 12, 30, 33 and 41 of the Arbitration Act being Matter No. 3895 of 1994. This Court by its order dated 11th Feb. 1994 declined to grant stay of the arbitration proceedings.
45. The petitioner did not take any effective steps to get the said application being Matter No. 3895 of 1994 heard and during the long vacation of 1994 filed the second application on the self same allegations (Matter No. 2270 of 1994).
46. In this connection I may refer to the Arbitration Clause contained in the Technical Colloboration Agreement itself in Art. XII which is set out as follows:
"12.1 -- Any claim dispute, or controversy arising out of or relating to this agreement, or the breach thereof shall be finally settled by arbitration, pursuant to and in accordance with the rules of conciliation and arbitration of International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said rules. Judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction thereof. The situs of arbitration shall be New Delhii, India or an alternate location if the parties shall mutually agree and the arbitration proceedings shall be conducted in the English language.
47. The contention of the petitioner is that the fees demanded by ICC from the respondent for adjudication of.its counterclaim is exorbitant and in such circumstances the Court has the power to revoke the authority of the arbitrators and it has been contended, that in exceptional circumstances the Court may revoke the authority of the arbitrators since the demand for costs and fees are exorbitant and the same deed not be enforced.
48. The learned Advocate for the petitioner in this connection has relied upon the judgment and decision in the case of
49. It appears that the arbitration agreement between the parties provides for arbitration in accordance with the rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said rules. The said arbitration agreement has been held to be valid by this Court and the Supreme Court in the first round of litigation filed by BSCL referred to above. Further the ICC Rules themselves are not under challenge and indeed cannot be challenged. The ICC Rules provide for advance to cover costs of arbitration (clauses 14, 15 and 16 of Appendix II) and for costs of arbitration (Appendix III). The petitioner on earlier occasion challenged the validity of the arbitration agreement. However, the said agreement was held to be valid by my judgment and order against which the petitioner moved the Supreme Court and the Supreme Court also held the said arbitration agreement to be valid as already noted. The agreement between the parties expressly provides that arbitration will be governed by ICC Rules which are not under challenge and in fact, the same cannot be challenged. The said ICC Rules provide for advance to be paid by the parties for costs of arbitration including the fees of arbitrators.
50. The costs include administrative expenses and arbitrator''s fees (clause 5 of Appendix III). It may be noticed that minimum and maximum have been fixed for arbitrator''s fees. Further, the fees are on slab basis. The minimum and maximum fees have been fixed as a per centage of the sum in dispute. The higher the sum, the lesser is the per centage. The scale or fee is a well thought out scale. A large number of arbitrations all over.the world are conducted in accordance with the ICC Rules and the fees are demanded according to the scale which are provided in the Rules.
51. The petitioner does not dispute that the administrative expenses and fees demanded from the petitioner by ICC are in accordance with the ICC Rules. Since the arbitration agreement has been held to be valid and the ICC Rules governing the procedure of arbitration are not under challenge the petitioner, in my view, is not entitled to raise any valid objection to the demand.
52. In fact, the petitioner has made a very large claim by way of counter claim viz. for a sum of Rs. 32.40 crores. According to the terms of agreement between the parties whereby they agreed to be governed by ICC Rules on the basis of the amount of the counter claim the petitioner would have to pay the costs and fees in accordance with the scale contained in the rules. The petitioner, in fact, was well aware of the said position all along when it entered into the agreement and also it made the counter claim and it is, therefore, not open to the petitioner now to complain that the fees and costs demanded are "exorbitant".
53. The contention of the petitioner that the fees demanded are "exorbitant" and the such "exorbitant" demand amounts to "misconduct" and, therefore the authority of the. arbitrator should be revoked cannot be accepted for the simple reason that any of the parties willing to resile from the arbitration may file an inflated counter claim and try to frustrate the arbitration by contending that the fees and expenses which it has to bear for adjudication of such counter claim are "enormous" and, therefore, the authority of the arbitrators should be revoked.
54. The judgment and decision relied upon by the petitioner in the case of
"This Court in
(i) excess or refusal of jurisdiction by arbitrator;
(ii) misconduct of arbitrator;
(iii) disqualification of arbitrator;
(iv)charges of fraud; (v) exceptional cases."
55. Thus it could be seen that the Court has the power and jurisdiction under Ss. 5 and 12 to grant leave to the applicant in exceptional circumstances to revoke the contract of arbitration. The Court should exercise the power sparingly, cautiously, and with circumspection to permit a party to the contract of arbitration voluntarily entered into, to relieve the party from dispute or difference and to order that the arbitration agreement shall cease to have effect in respect of the dispute or difference."
56. It thus appears that the Supreme Court sounded a word of caution for the Courts while granting leave to revoke the authority of arbitrator. In the instant case no exceptional case or circumstance has been pointed out by the petitioner for exercise of power of revocation by the Court. The demand for advance payment for costs and fees by ICC is in accordance with the rules by which the parties agreed to be governed and as such they are bound by the same, more so when on previous occasion the said agreement was upheld by this Court as also by the Supreme Court in an application under S. 33 of the Arbitration Act. Accordingly, the instant case does not come within the purview of an "exceptional case" for which the authority of the arbitrator should be revoked. The contention of the learned advocate for petitioner cannot be accepted on that count. It may be noted that the Technical Collaboration Agreement was approved before and after the same was signed by the parties by the Government of India in its various departments. This fact was also recorded by the Supreme Court in its judgment dealing with the validity of the said agreement. The said agreement cannot be said to be onerous. It cannot also be said to be inequitable to enforce the arbitration agreement. There are no circumstances shown which render the agreement unconscionable. On the contrary, the agreement was entered into with full notice and knowledge of all its terms and after the requisite approvals from the Government of India in its various departments were obtained. The contention now raised is another attempt to resile from the binding agreement between the parties. Mr. Bhaskar Gupta, learned advocate for the petitioner in this connection has relied upon the judgment and decision in the case of
57. Thus even according to Article 574 if the fees are the subject matter of a written agreement (as is the case here) a party has no right to demand that the fees of the arbitrator be taxed but has to pay the agreed fees. This Article, therefore, has no application in the instant case.
58. The learned advocate for the petitioner has also referred to 44 Halsbury (4th Edn.) paragraph 466. The said Article provides that the Court''s discretion to grant specific performance is not exercised if the contract is not "equal and fair". Even though no fraud duress or undue influence such as to justify recession is shown, the Court may still not enforce the contract if it would be consistent with equity and good conscience not to do so.
59. It thus appears that the principle incorporation in the said Article has no application in the instant case. As already noted the contract was entered into after the authorities of the Government of India had scrutinised the same and granted their approval. This Court and the Supreme Court upheld the validity of the agreement between the parties including the arbitration clause. The demand for costs and fees made is in terms of the contract. It cannot be contended that the contract between the parties is not "equal and fair".
60. Further, in India the relevant law is contained in S. 20 of the Specific Relief Act. The circumstances under which Court will not grant specific performance as contained in S. 20 are not satisfied in the instant case. Mr. Gupta has strongly relied upon the judgment in the case of
61. The judgment and decision in the case of Copee-Labelin v. Ken-Ren reported in (1994) 2 All ER 449, relied upon by the learned advocate for the petitioner is required to be considered in the context of the facts of the instant case. In the said decision the same arbitration clause as in the instant case was under consideration. There was an international arbitration. One of the parties made an application in the English Court for security for costs under S. 12(6)(a) of the Arbitration Act, 1950. This section can be found at pages 456 and 466 of Russel on Arbitration 20th Edn. The question which was debated before the House of Lords was whether the High Court in England had the power to grant such security for costs in the background of the ICC Rules. The House of Lords analysed Article 8(5) of the ICC Rules and came to the conclusion that there was nothing in the ICC Rules which prevented the Court from making an order for security for costs under S. 12(6)(a) of the 1950 Act if the circumstances so required.
62. The House of Lords analysed S. 12(6) and came to the conclusion that under S. 12 the High Court had the power to make interim orders for the purpose of and in relation to a reference. (This is somewhat like S. 41 of the Indian Arbitration Act, 1940). Such powers are to be exercised in aid of arbitration unless the arbitral rules provide otherwise. For example unless the arbitral rules provide otherwise the High Court can grant an order for security for costs which will help the award holder to recover his costs, when enforcing the award. It was also found that Article 8(5) (which was the relevant Article) of the ICC Rules did not have any provision for awarding security for costs and there was nothing inconsistent between Article 8(5) S. 12(6)(a) of the English Arbitration Act, 1950.
63. In my view the decision of the House of Lords is only an authority for the proposition that the Court has power to grant interim reliefs to supplement or aid arbitration proceedings. The said decision is not an authority for the proposition that Court can exercise its discretionary power and pass orders of interim nature thereby frustrating and putting an end to the arbitration proceedings. The relief claimed by the petitioner in effect, if allowed, will put an end to the arbitration proceedings by revocation of the authority of the arbitrators and will thus frustrate the objects of the agreement which the parties are entered into. In that view of the matter, in my view the House of Lords'' decision has no application to the facts of the instant case. The other judgment relied upon by Mr. Bachawat, learned advocate for the petitioner is the case of Probodh Chandra Dutt v. State of West Bengal reported in (1959) 63 CWN 561. Principles decided in the case decision, in my view cannot have any application in the facts of the instant case. Since the same relates to payment of police charges for execution of decree which cannot have any relevance in the facts of the instant case. Considering the facts and circumstances of the case and for the reasons already noted, in my view the petitioner cannot succeed in the instant application. This application accordingly stands dismissed.
64. There will be no order as to costs.
65. In view of the judgment and order in Matter No. 3895 of 1994 no other order is required to be passed in Matter No. 2278 of 1994 (Burn Standard Co. Ltd. v. Mc Dermott International Inc.) and the same also stands dismissed with the order as to costs.
66. Order accordingly.
