that the learned arbitrator had unilaterally revised and increased the quantum of the fees, which was impermissible. By relying upon the aforesaid judgement of the Supreme Court in the case of ONGC Vs. Afcons Gunanusa JV (supra) , the learned counsel for the petitioners submitted that once the fees were fixed in the preliminary meeting on 11.04.2019, it amounted to a tripartite agreement between the parties and the learned arbitrator, which could not have been unilaterally revised or changed. Much emphasis was placed on the order / minutes of the meeting dated 19.12.2022, wherein the learned arbitrator, upon revising and increasing her fees unilaterally, had also specifically stated that unless her fees were paid, she would no longer be able to act as an arbitrator in the matter. According to the petitioners, this amounted to the learned arbitrator being rendered de facto unable to perform her functions, thereby justifying invocation of Section 14(1)(a) of the Arbitration Act. It was further submitted that the learned arbitrator wrongly entertained the application filed by the third party, whereby reliefs were sought against the petitioners. After referring to the order dated 21.06.2023 passed by the learned arbitrator on the said application, it was submitted that while the application was kept pending, advice was given to the third party applicant, which rendered the learned arbitrator disqualified from continuing as an arbitrator. This was also sought to be covered under Section 14(1)(a) of the Arbitration Act, alleging that the learned arbitrator, by such conduct, had become de facto unable to perform her functions as an arbitrator.
