- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ARBITRATION ARBITRATION ARBITRATION PETITION NO.319 OF 2002 PETITION NO.319 OF 2002 PETITION NO.319 OF 2002 M/s Paterson and Co. ... Petitioners v/s Industrial Bank Ltd. and anr. ... Respondents Mr Chetan Kapadia with Mr I. Nankani i/b M/s Nankani and Co. for Petitiones. Mr H. Bhave with Mr Santosh Pawar i/b M/s Bhave and Co. for Respondents. CORAM : D.K.DESHMUKH J. DATE : 10TH AUGUST 2004 - 2 - P.C.: - 1. By this petition filed under section 34 of the Arbitration and Conciliation Act 1996, the petitioners challenge the award passed by the Sole Arbitrator. The arbitration was under the Bye-laws and Business Rules of National Securities Depository Ltd. By that award, the Arbitrator has directed the petitioners to pay an amount of Rs.3,19,507/- with interest towards the charges which are payable by the petitioners to the respondents. After having heard learned counsel for both the sides, following appears to be the admitted position:- A) In terms of the provisions of the Act, the Rules and the Bye-laws, there has to be an agreement in writing in the prescribed form between a depository participant and beneficiary account holder. Admitted position is that the respondent Bank is a depository participant and petitioner Company is a beneficiary account holder. B) It is also agreed position that there is - 3 - no agreement in writing between the petitioners and the respondents regarding the fees that can be charged by the respondents from the petitioners. C) The petitioner Company agrees that though there is no agreement, the petitioners are liable to pay to the respondents such fees as were being charged by the respondents from other depository participants and from similarly circumstanced persons in relation to the transactions of the same or similar nature. D) It is also an admitted position that there is no evidence on record in relation to the fees charged by the respondents from others in similar circumstances. 2. In view of these admitted positions, the award has to be set aside as the award is made in the absence of evidence. 3. The award impugned in the petition is set - 4 - aside. The Secretary of the National Securities Depository ltd., dealing with arbitrations, is directed to refer the dispute between the parties to arbitration in accordance with law. The Arbitrator shall decide the dispute between the parties after permitting both the parties to lead evidence to establish what is the rate of fees and what rate can be charged by the respondents to the petitioners. 4. It is also made clear that the Arbitrator shall also decide the question whether there is any period of limitation for making reference and if yes whether the reference made by the respondents is within the period of limitation. Petitioners to communicate this order to the Secretary, National Securities Depository Ltd. Petition is disposed off with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Associate / Personal Secretary as true copy. . Certified copy expedited. ----------------