ARBP941-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.941 OF 2010 Sunil Baran Das .. Petitioner Versus Dawnay Day AV Securities Pvt Ltd .. Respondent Mr.Vishal Phal i/by Madhusudan G. Gawde for the petitioner. Mr.Rajiv Narula a/w Mr.Deepak Rane i/by Ravikumar Varanasi & Co for the respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 12th January 2011. P.C.: . Heard parties. The petitioner is the original respondent and is aggrieved by an Award made on a claim of the respondent. That Award is rendered by the Arbitral Tribunal constituted by the National Stock Exchange of India Ltd. 2 Mr.Phal appearing on behalf of the petitioner submits that the Tribunal has closed the matter arbitrarily and without giving a reasonable opportunity to the petitioner or his advocate to make oral submissions. He submits that there was due explanation given as to why the petitioner's ARBP941-10 2 advocate reached the venue of the arbitration late. He was caught in the traffic jam. He immediately recorded the same by his letter dated 27th January 2010. Therefore, the matter could not have been abruptly closed and only on hearing submissions of the claimant-respondent. Even otherwise there is prejudice caused because the written submissions were tendered by the petitioner. However, the Arbitral Tribunal has failed to make any reference thereto or consider the pleas raised therein. 3 On merits also the Arbitral Tribunal has ignored the fact that there has been no communication from the original claimant-respondent after 22nd January 2008. If there was no confirmation of the deals and transactions, then, it is futile to urge that the respondent-claimant continued without any instructions or documents authorising or empowering it in that behalf. Reliance was placed on tape-recorded conversations by the Arbitral Tribunal but no opportunity has been given to controvert the contents thereof or cross-examine the persons who are supposed to have recorded the same. For all these reasons the Award deserves to be quashed and set aside. ARBP941-10 3 4 On the other hand Mr.Narula appearing on behalf of the respondent- original claimant submitted that it is not as if the Tribunal has disposed of the matter abruptly or hastily. The initial hearing after the matter was referred to the Tribunal was fixed on 27th January 2009. Thereafter it was adjourned to 17th June 2009 and subsequently to 29th July 2009. The petitioner filed the reply and the respondent filed the rejoinder. Thereafter on 4th August 2009 the petitioner filed his counter-claim. 5 The papers and proceedings were therefore forwarded to the Tribunal by their letter dated 7th September 2009. The matter was then heard by the Tribunal and it gave enough opportunities to the parties to argue the matter and prove the rival versions. The matter was heard on 9th October 2009, 14th December 2009 and 21st December 2009. It was thereafter adjourned to 27th January 2010. Thus, this date was known to the petitioner and his advocate well in advance. Even on that date the Tribunal waited for considerable period of time for the advocate to reach the venue. However, the petitioner was present but the advocate could not reach and that is how ARBP941-10 4 the hearing was concluded. 6 In such circumstances according to Mr.Narula there is no prejudice caused nor can the Award be said to be vitiated by non observance of principles of natural justice. On merits Mr.Narula submits that apart from the tape-recorded conversations as alleged the Tribunal has referred extensively to the pleadings, arguments and written submissions. It held that the claim was made for the amount which is due and payable. The account of the petitioner came into debit because of the crash in the market as a result of which the respondent carried forward the position. Additional loss was incurred and therefore Risk Department cleared all the position. When it was clear that the petitioner was not making payments to retain the open position, the terms of the trading Members and Client agreement have been referred to and it is in such circumstances it is held that there is no question of any unauthorised transaction in the account. Further, the notices were sent to the petitioner. 7 Mr. Narula relies upon the observations and findings in paragraphs ARBP941-10 5 26 and 27 of the Award and submits that this petition is devoid of any merits and deserves to be dismissed. 8 Having heard learned counsel appearing for the parties and perused with their assistance the petition and the annexures thereto so also the Award in question I am of the opinion that no grounds are made out for interfering with the Award. The petition under section 34 is not an appeal to the Court. This Court cannot substitute its views with the findings of the Arbitrators unless they are found to be totally perverse or based on total misreading of the materials produced. It is not as if the findings can be said to be as such as no reasonable person would arrive at. Firstly, the Tribunal in accordance with the principles of natural justice gave sufficient opportunity to the petitioner to contest the claim. The documents including replies and counter-claims were taken on record so also written submissions. Therefore, by mere non attendance on one date the petitioner is not prejudiced. I am in agreement with Mr.Narula that the Award cannot be challenged on grounds that it violates the principles of natural justice. ARBP941-10 6 9 Even on merits it is clear that this is a case where there are contract notes, ledger statements. The contention that there were no instructions and therefore all transactions were unauthorised cannot be accepted because the Tribunal has found on the basis of the documents produced that the petitioner has not denied receipt of contract notes nor has raised any objection to the transaction. He was aware of the crash in the market. He was also aware of the details and that is how the Tribunal found that there was no response to the demand raised by the respondent. The said finding is based on the materials produced which cannot be said to be vitiated as contended by the petitioner. 10 In the result, on finding that the Award is not vitiated on the ground of non observance of principles of natural justice nor can it be termed as perverse, there is no alternative but to dismiss this petition. Petition is accordingly dismissed. No costs. (S.C.DHARMADHIKARI, J)