1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 400 OF 2009 Mr. Pramod Jainarayan Jaju ...Petitioner. Vs. M/s. Kotak Securities Ltd. & Anr. ...Respondents. Mr.P.N.Gunwani with Mr. Manoj Dalvi for the Petitioner. Mr. V.K. Ramabhadran for the Respondents. CORAM :- ANOOP V. MOHTA, J. DATED :- 3rd AUGUST, 2009. P.C.- Heard finally. 1 The Petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”), thereby challenged an award dated 27th January, 2009. The operative part of the award is as under:- “7. The Award 7.1 The Award in the matter on the basis of reasoning in para 6.1 to 6.5 is as under- i) The Respondent Mr. Pramod Jainarayan Jaju to pay Rs. 7,44,469.35 to the Applicant within a month from the date of this Award. ii) The Respondent to also pay interest on Rs.7,44,469.38 2 at a rate of 12% per annum from 1-4-2008 to the date of this Award within a month from the date of this Award. iii) If the Respondent fails to pay amount at (i) & (ii) above within a month as stipulated, he will be liable to pay further interest at 12% per annum on the amount at (i) above from the date of Award to the date of actual payment. 2 There is no dispute about member-client agreement, therefore the clauses referred therein also remained uncontroverted, which includes the clauses of obligation, of Electronic Communication, of documents and of jurisdiction. Having once agreed and participated before the Arbitral Tribunal in all respect, without raising specific plea about jurisdiction by reserving the rights of the claim of Rs.25 lacs, the respective submission with regard to the same is impermissible. 3 The agreement itself provides a clause, whereby, the Petitioner has permitted the Respondent to do the business/trade on both the Stock Exchanges i.e. National Stock Exchange (NSE) and Bombay Stock Exchange (BSE). Having once agreed and accordingly acted since 2007, and the objection that such composite demand of the claim as awarded, is without jurisdiction, also unacceptable. There is no dispute that BSE and NSE have their own bye-laws, Rules and Regulations but in the present case, as the Petitioner participated without any objection, and as there is no bar, to direct to pay the amount after due settlement. The submission, in this regard, in my view, is difficult to accept now. As per clause 26 of the 3 Member-client agreement, the Tribunal has jurisdiction. 4 The Petitioner, if failed to take objection and participated in the proceedings, that itself in my view, sufficient to reject this contention in view of above undisputed position. 5 Though issue raised about the securing Rs.25 lakhs, but as noted and as recorded by the Arbitrator, the Petitioner did not raise any counter claim. Therefore, the related submission in the present Petition is also impermissible. The Tribunal, as well as, both the parties have proceeded accordingly. Therefore, there is nothing wrong committed by the Arbitrator, by not considering the said aspect, granted the award on the basis of undisputed transactions. 6 The submission that there was no proper communication, there were no proper receipt of contract notes, has no force. Admittedly, the Petitioner has accepted the communication through Electronic media and based upon that, has been doing the business since 2007, without any objection. Mere allegations of fabrication of the agreements/documents are insufficient. The material particulars must be produced along with those allegations. The Petitioner failed to do so. If the Petitioner acted and done the business, this submission is also insufficient to interfere with the reasoned award as passed. The Arbitral Tribunal, therefore, based upon the Respondent’s-Applicant’s case who has established its claim by putting on record the material documents in support observed as under:- 4 “6.1 The Applicant has produced relevant documents to establish that the Respondent had been trading in F & O segment. The Applicant has produced copy of document which shows that the Respondent had agreed to accept contract notes and bills through email. The Respondent admits having received some contract notes and says that many were received late. He, however, denies receipt of contract notes through email and alleges that the evidence produced by the Applicant is fabricated. He has not given reasons as to why he alleges these to have been fabricated. The argument of the Respondent is not accepted. He was aware of his trades and he had not raised any objections prior to lodging of arbitration application.” 7 The submission with regard to 24% interest as claimed by the Respondent in view of delayed payments needs no discussion as the Arbitral Tribunal has considered and restricted it at 12% p.a. from 01/04/2008, which is permissible under the agreement itself. 8 Taking note of above and considering the reasoning so given by the learned Arbitral Tribunal, I see there is no perversity and or any illegality committed by the Arbitral Tribunal. The view so taken based upon the material available on record, is within the frame work of law and the record. 9 Resultantly, the Petition is dismissed. No order as to costs. (ANOOP V. MOHTA, J.) 5