pvr 1 ap1164-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.1164 OF 2010 Madhubaen Vasubhai Patel. ...Petitioner vs. M/s.India Infoline Ltd. ...Respondent --- Mr.Rajeev Narula i/b. Jhangiani, Narula & Associates, for Petitioner. Mr.P.N.Modi i/b. Juris Metrix, for Respondent. --- CORAM: D.K.DESHMUKH, J. DATED: 30th June,2011. P.C.:- 1. By this petition filed under Section 34 of the Arbitration and Conciliation Act, the petitioner challenges the Award made by the learned Arbitrator. The learned Arbitrator has pvr 2 ap1164-10 rejected the claim. The petitioner who is widow of one Mr.Vasubhai Patel had made the claim. The admitted position is that Mr.Vasubhai Patel opened an account with the respondent who is a stock broker on 14.9.2006. He was suffering from cancer. He left for United States of America on 17.9.2006. It is also an admitted position that he died in the United States of America itself. The claim on behalf of the petitioner was made by her power of attorney holder by name Mr.Ramanbhai Patel who is brother of deceased Vasubhai Patel. The claim was that there were shares in the D-mat accounts of Mr.Vasubhai Patel and they were to be returned. The defence of the respondent was that from the very beginning, the account opened by Mr.Vasubhai was operated on the instructions from Mr.Ramanbhai in whose favour an authority was given by Mr.Vasubhai to operate his account, and therefore, the amount as claimed by the petitioner is not payable. The learned Arbitrator by the Award has accepted the case of the pvr 3 ap1164-10 respondent and has rejected the claim. 2. The learned Counsel appearing for petitioner urged two contentions viz. (i) according to him, the findings recorded by the learned Arbitrator are contrary to record. According to the learned Counsel, Mr.Vasubhai had never given any authority to Mr.Ramanbhai to trade in his account, and therefore, the findings of the learned Arbitrator that Mr.Ramanbhai had authority to give instructions on behalf of Mr.Vasubhai to operate the account is perverse. The learned Counsel also submits that the findings of the learned Arbitrator that it is an admitted position that trade in Mr.Vasubhai s account was carried on as per the instructions of Mr.Ramanbhai, is also perverse. According to the learned Counsel, there is no material on record to hold that Mr.Vasubhai had given any authority in favour of Mr.Ramanbhai to operate his account. The learned Counsel further submitted that the pvr 4 ap1164-10 stock broker cannot trade in Future and Option (F&O) without there being any margin. As Mr.Vasubhai had not given any margin, there could not have been any trade in his account in F&O segment. 3. So far as the first contention is concerned, on behalf of the respondent admittedly an affdiavit of Mr.Viral Naik was filed who has stated that at the time of opening of the account, an authority letter was given by Mr.Vasubhai authorising Mr.Ramanbhai his brother to operate the account. He has stated in the affidavit that he had seen that letter of Mr.Vasubhai on record. He has stated that presently he has not been able to trace that authority letter. It appears from the Award that the learned Arbitrator has accepted this version of the respondent. The learned Counsel appearing for petitioner submitted that on behalf of the claimant also an affidavit has been filed where a pvr 5 ap1164-10 statement was made that no authority letter was given by Mr.Vasubhai even in favour of Mr.Ramanbhai. In the face of these contradictory versions, on the basis of probability, the learned Arbitrator has accepted the version of the respondent, which in my opinion, the learned Arbitrator was justified in so doing considering the facts and circumstance of the case and considering the point of time at which the account was opened and the account continued to be operated even after the death of Mr.Vasubhai. It appears from the record that when Mr.Vasubhai s account was opened, Mr.Ramanbhai s account was also opened and both these accounts were operated by Mr.Ramanbhai. In these circumstances, therefore, in my opinion, the findings recorded by the learned Arbitrator that the account was being operated by Mr.Ramanbhai and Mr.Ramanbhai had authority from Mr.Vasubhai to do so, in my opinion, is a possible finding and is not capable of being disturbed in the pvr 6 ap1164-10 extremely limited jurisdiction of this Court under Section 34 of the Arbitration and Conciliation Act. What is further pertinent to be noted is that at the same time two accounts were opened in favour of Mr.Vasubhai and Mr.Ramanbhai, those accounts were operated after they are opened even when Mr.Vasubhai was not in India, and even the claim is made on behalf of widow of Mr.Vasubhai by Mr.Ramanbhai. In my opinion, therefore, the case pleaded by the respondent was probable and has been rightly accepted by the learned Arbitrator. 4. So far as the second contention is concerned, it is clear from the Award that that contention was not raised before the learned Arbitrator, therefore, there is no question of this Court considering that contention for the first time in this petition. I find that the claim was actually made by Mr.Ramanbhai to take disadvantage of the situation. In my opinion, pvr 7 ap1164-10 therefore, costs are liable to be imposed on the petition. The petition is disposed of. The petitioner is directed to pay as and by way of costs of this petition Rs.25,000/- to the respondent. (D.K.DESHMUKH, J.) ---