1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 765 OF 2009 Shri Manohar Bhiku Valkunde Aged 42 years, Indian Inhabitant, Occupation- Service, R/o. 3rd Floor, Flat No.302, Gauresh Hsg. Society, Sector 12-14, Matheran Road, New Panvel- 410 206 ...Petitioner. Vs. Way2wealth Brokers Private Limited (Trading Member), having its registered office at 002, Raheja Parmount, 138, Residency Road, Bangalore And its corporate office at 4072-75, B-Wing, Oberoi Gardens, Off. Chandivali Farms Road, Chandivali, Andheri (E), Mumbai – 400 072 And dealing office at Krushal Tower, Ghatkopar Mahul Road, Opp. Ravi Petrol Pump Near shoppers Stop, Chambur (W), Mumbai – 400 089. ...Respondent. Mr. Balasaheb Deshmukh i/by Ms. Vidya D. Kamble & K.B. Borhade for the Petitioner. Mr. Vishal Kanade i/by M/s. N. Shah & Himay Atullah for the Respondent. CORAM :- ANOOP V. MOHTA, J. 2 DATED :- 11th December, 2009. ORAL JUDGMENT:.- 1 Heard finally. 2 The Petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act), whereby a challenge is made to the award dated 31st March, 2009, whereby the sole Arbitral Tribunal appointed under the Bye-laws, Rules and Regulations of the N.S.E. I. Limited, Mumbai, after considering the material, as well as, the submission raised by the parties, awarded the claim against the Petitioner in favour of the Respondent and also dismissed the counter claim filed by the Petitioner. 3 The submission with regard to Section 34(2) 24, 28 and 31(3) of the Arbitration Act, revolved around alleged no opportunity, has no force. The factually required opportunity was given and the award was passed after hearing both the parties. The version recorded and the C.D. were provided to the Petitioner basically of the relevant dates i.e. on 21st January, 2008 and 22nd January, 2008. The submission that the Arbitrator never heard the CD in the presence of the Applicant, is also not correct. 4 There is no dispute about the existence of the agreement, other trade and transaction between the parties. The Petitioner has been doing the business based upon the said trade, practice and knowledge of the market. The requirement of margin money is well within the knowledge of the 3 Petitioner. The volatility market on 21st January, 2008 and 22nd January, 2008 resulted into shortfall in the margin. Therefore, inspite of the margin call given at about 9.30 a.m. on 22nd January, 2008 when the margin shortfall was Rs.56,000/-, the Respondent did not make up the shortfall on 22nd January, 2008. There was a further margin shortfall of Rs.66,096/- and ultimately the total shortfall/ loss was of Rs.1,19,798/- at 5.45 p.m. and therefore, this position was squared off and informed accordingly. 5 As per the learned Arbitrator, the voice recording shows that the Respondent has suffered a loss which the applicant cannot be blamed. The findings so arrived at by the Arbitrator, therefore, cannot be said to be perverse/ contrary to the law. 6 As regards the counter claim, there is a clear finding on merit, as well as, on the law of limitation that such transaction dated 21st January, 2008, just cannot be re-agitated first time in reply of 15/02/2009 being beyond the period of 6 months as contemplated under the bye-laws. Even on merits, for want of substantial/ supporting material the counter claim was dismissed. 7 In my view, therefore, as award is well within the frame work of law and the record, there is no perversity and therefore, the Petition is dismissed with no order as to costs. (ANOOP V. MOHTA, J.)