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In the present case, a contract was entered into between the appellant and the respondent. It is sufficient to state, for the purpose of this case, that insofar as dispute resolution is concerned, the arbitration clause referred the parties to the arbitration of three learned arbitrators - one to be appointed by each party and the third arbitrator to be appointed by the two arbitrators so appointed.
Learned senior counsel appearing on behalf of the respondent informed the court that the fee schedule was fixed under a policy decision dated 31.05.2004 of the National Highways Authority of India. As disputes arose between the parties, arbitration was invoked by the appellant long after the contract was entered into between the parties.
In this matter,the Supreme Court has held that Section 31 (8 )and 31( A) of the Arbitration and Conciliation Act, 1996 will not apply to arbitral fee, if a structure has already been laid down by an agreement between the parties. The Supreme Court bench consisting of Justice R F Nariman and Surya kant overruled the Delhi High Court decision in National Highways Authority of India vs. Gayatri Jhansi Roadways Limited, in which the court had held that the fees will be governed by the fourth schedule of the Act and that it shall have superseding effect over the fees set by the agreement between the parties.
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