1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 68 OF 2007 Asit C Mehta Investment Intermediates Ltd. ) Through Nucleus House, 5th Floor ) Saki Vihar Road, Andheri (East) ) Mumbai 400 072 ).. APPLICANT Versus Central Depository Services (India) Ltd. ) Through Chairman ) P J Tower, 16th Floor, Dalal Street ) Fort, Mumbai 400 001 ).. RESPONDENTS Mr M L Sharma for the Applicant. Mr Raj Patel i/b M Humranwala for the Respondent. CORAM : SWATANTER KUMAR, CHIEF JUSTICE JUDGMENT RESERVED ON : 12TH SEPTEMBER 2008 JUDGMENT PRONOUNCED ON : 25TH SEPTEMBER 2008 JUDGMENT This is an application under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as “the Act”). The 2 Applicant is a Company registered under the Companies Act, 1956 and is carrying on the business of securities. The said Company is also having the membership of National Stock Exchange, the Stock Exchange, Mumbai and Security Depository. The Respondent Company - Central Depository Services (I) Ltd. (hereinafter referred to “as CDSL”) - again is a Company incorporated under the provisions of the Companies Act, 1956 and having its registered office at Mumbai. In May 2005, the Respondent Company sent a copy of the complaint dated 30th April 2004 of Vipin Abrol asking to provide copies of documents, etc. According to it, Vipin Abrol who was having family relations with Manish K Sahgal and his family members had handed over various shares and and signed documents, slips, etc. to Manish K Sahgal for dealing on their behalf as his agent. He sold directly from his accounts various shares but the proceeds had not been credited into his trading accounts. Manish Sahgal did not return back to Jalandhar and that they needed copies of these documents. According to the Applicant, he came to know of registration of a FIR No.259 dated 20th October 2004 which was filed by Vipin Abrol and 3 his family members against their agent Sahgal with the S.P. of Jallandhar, Punjab. The matter is even pending in Court. The Abrol family had alleged that besides giving the above shares, they had also given cheques for different denominations. The National Stock Exchange had sent one copy of the complaint filed by Abrol stating that on 24th November 2003 they sold wrongly 1148 TISCO shares without authorization. Mohan Abrol even gave a copy of the trading account on 28th September 2006. It was primarily a dispute between claimants and their agents to avoid business conflict and in good faith, the Applicant deposited 1722 TISCO shares and took cheques totalling Rs.44,832/-. The Respondent issued a letter dated 16th July 2006 stating that they are transferring the said amount and shares to the Claimants without any further steps because Claimant had filed indemnity bond declaration, etc. In view of the various disputes that had arisen, the Applicant gave a legal notice dated 31st January 2007 to the Respondent asking them to appoint Arbitrator to resolve the issue through arbitration proceedings in accordance with their own bye laws. According to the bye laws of National Stock Exchange 4 (hereinafter referred to as “NSE”) and CDSL, there is no valid arbitration agreement and the Respondents had no right to give up the shares to the claimants. This notice date 31st January 2007 was replied to by the Respondent vide their letter dated 2nd February 2007. Primarily, according to the Applicant, the Respondent by themselves on behalf of the Claimant had no right to liquidate, merge, transfer or use them in any manner for themselves or for any third party the shares and other documents particularly when they had no legal order from any competent Court or authority. After the letter dated 2nd February 2007, no further response was received and resultantly the Applicant filed the present Arbitration Application praying for appointment of an Arbitrator in the matter as per the provisions of Section 11 of the Act. 2. According to the Applicant, the Respondent had no right to appoint an Arbitrator as they failed to act as per the notice dated 31st January 2007. This was contested by the Respondent. However, it is not disputed that there is an arbitration clause existing and 5 binding between the parties. However, according to the Respondent CDSL, they have no objection to take recourse to the arbitration clause and acting in terms thereof. It is their contention that the requirement for invoking an arbitration clause has not been satisfied. 3. Having heard the learned Counsel appearing for the parties, the limited question that needs to be examined by the Court is what is the effect of the letter dated 31st January 2007 and the reply given by the Respondent dated 2nd February 2007 and the consequences that would flow keeping in view the arbitration clause admitted between the parties. It is not in dispute before the Court that Clause 22 of the bye laws provides for arbitration and the methodology that has to be adopted for implementing the arbitration. The Arbitral Tribunal, according to the bye laws, means the Sole Arbitrator or three Arbitrators as the case may be. According to the bye laws, Clause 22.2 and the other relevant clauses read as under :- 6 “22.2 CLAIMS, DIFFERENCES AND DISPUTES 22.2.1 All claims, differences and disputes between CDSL, Users and Beneficial Owners or any of them (including those inter se between Users or Beneficial Owners) arising out of or in relation to any dealings or transactions in CDSL in respect of any provisions of the Act, Regulations, Bye Laws or Operating Instructions shall be referred to arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, as follows : 22.2.1.1 Where CDSL is a party, in accordance with Bye Law 22.2.2 hereinbelow 22.2.1.2 In all other cases, in accordance with Bye Law 22.2.3 hereinbelow 22.2.2 Where CDSL is a party to Arbitration 22.2.2.1 the Arbitral Tribunal shall consist of three Arbitrators, one Arbitrator each to be appointed by the Claimant and the Respondent and the third Arbitrator to be appointed by the two Arbitrators. The third Arbitrator so appointed shall be the Presiding Arbitrator.” 4. After referring to the facts of the case in the legal notice dated 31st January 2007, the Applicant required the Respondent to 7 start proper arbitration proceeding, appoint the proper Arbitrator to resolve the dispute, if and only if CDSL likes to represent the said claimant to support their claim without any valid Court order or arbitration proceeding. In paragraph 12 of the said legal notice, it was further stated that in the circumstances of the case, the Respondent was requested to appoint the Arbitrator subject to paragraph 10 of the legal notice according to the provisions of Bye laws of the CDSL and to inform about the aforesaid deposit of shares, etc. However, in paragraph 10 of the notice, it was also stated that the dispute which is between the participants and the Beneficial Owners (BO's) will be reflected/converted into disputes between the Depository and participants to decide the question whether the CDSL is legally duty bound or not to follow the provisions of the bye laws of CDSL. In response to this, as already noticed, vide letter dated 2nd February 2007, the Respondent had informed the Applicant after again referring to the facts which were with some variance with the facts stated by the Applicant herein that the complaint of BO's stood redressed and the matter has been conclusively settled between the complainant and the 8 other party and there were no disputes outstanding. They clarified that they had not received any request for referring the matter for arbitration from the claimant/complainant or any other party and that it was needless to record that the arbitration machinery will be given effect to if such a request is received and on completion of required formalities mentioned in the bye laws. 5. A bare reading of the above clauses show that the arbitration clause is to be acted upon on specific complaint and in the manner stated therein. Once there is an arbitration clause between the parties which contemplates that parties would act in a particular manner with regard to invocation of the arbitration clause, then they essentially must act in terms thereof. The notice dated 31st January 2007 is not in consonance with the bye laws and the Applicant was required to act in terms thereof. The Arbitral Tribunal has to consist of three Arbitrators, out of which one is to be named by the Applicant out of the list of persons empaneled by the Board. Other is to be nominated by the other party and the third to be nominated by the two 9 Arbitrators from the said panel. This request was not met by the Applicant nor was it adhered to by the Respondent. In other words, the parties have failed to act in accordance with the arbitration clause and none of them in fact served the requisite notice as required under the bye laws. As there is no dispute with regard to the existence of the arbitration agreement as well as certain disputes have arisen between the parties which are to be subjected to the Arbitral Tribunal in accordance with the clause, it had to be necessarily for the parties to follow the prescribed procedure of arbitration. It may be noticed that in paragraph 4 of the reply filed on behalf of the Respondent that the arbitration clause could not be invoked for want of requirement as contemplated and as original agreement was to be filed. It is also stated in the reply that the Applicant and the Respondent were bound by the bye laws. 6. In these circumstances, the Arbitration Application is allowed. However, with a direction that now the Respondent shall act on the request made by the Applicant for appointment of Arbitrator in 10 terms of Clause 22 of the Bye laws of the Respondent and provide a panel of the names for choice by the parties in accordance with the arbitration agreement. 7. Compliance of this direction should be made within four weeks from today. 8. Arbitration Application is accordingly disposed of. No order as to costs. CHIEF JUSTICE july08/judgment/arbap68-07.sxw