Kambli 1 arbp1112.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.1112 OF 2010 ... Sunidhi Securities and Finance Ltd. ...Petitioner v/s. Mr.Jayesh Ramniklal Ajmera ...Respondent ... Mr.Zal Andhyarujina i/b Rajesh Khandelwal for the Petitioner. Mr.S.S.Purohit i/b Purohit & Co. for the Respondent. ... CORAM: D.K.DESHMUKH, J. DATED: 17th June, 2011 P.C.: Admit. Heard finally by consent of parties. 2. By this petition the Petitioner challenges the award made by the arbitral tribunal of the Bombay Stock Exchange. By that award the claim made by the Petitioner has been rejected and the counter claim made by the Respondent has been allowed. The Petitioner is the stock-broker. The Respondent is his client. According to the Petitioner, he carried on trade on behalf of and as per the instructions of the Respondent. There was debit balance in Kambli 2 arbp1112.10 his account, there was loss suffered, and therefore, he made an application before the arbitral tribunal. 3. The defence of the Respondent was that he carried out transactions only till 22nd August, 2007 and transactions in his account after 22nd August, 2007 were carried on by one Mr.Ketal Deliwala, who according to the Respondent is the sub-broker and the relative of the Respondent. The Respondent also made a counter claim. 4. The arbitral tribunal decided the Reference by the Award. They rejected the claim made by the Petitioner and allowed the counter claim made by the Respondent. So far as counter claim is concerned, it is common ground that the arbitrators have not given any reason for allowing the counter claim of the Respondent, and therefore for that reason alone the award allowing the counter claim made by the Respondent is liable to be set aside. So far as the award rejecting the claim of the Petitioner is concerned, the Arbitrators have drawn an inference against the Petitioner for not producing the Order Book and the Arbitrators have held that as it was the contention of the Respondent that the transaction in his account has been carried out by Mr.Deliwala and as Mr.Deliwala is Kambli 3 arbp1112.10 the sub-broker of the Applicant, the Applicant should have examined him as a witness. 5. I have heard the learned Counsel for both sides. In my opinion, the award in so far as it rejects the claim of the Petitioner is liable to be set aside for non application of mind on the part of the arbitral tribunal to the crucial aspect of the matter. The Petitioner had gone to the Arbitral tribunal with a specific case that the transactions have been carried out by the Respondent, which have resulted in loss, which is liable to be paid by the Respondent to the Petitioner. The Respondent has not merely denied that he carried out the transactions, but he went to the Arbitrators with a specific case that the transactions in his account were carried out by Mr.Deliwala. Therefore, obviously burden to prove that the transactions were carried out by Mr.Deliwala was on the Respondent. However, the Arbitrators placed the burden on the Petitioner. One of the reasons given by the Arbitrators for rejecting the claim of the Petitioner is failure of the Petitioner to file affidavit of Mr.Deliwala denying that he has carried out the transactions. In my opinion, this sole reason is sufficient to set aside the award. As the Respondent had gone before the Arbitrators with a specif case that It is Mr.Deliwala, who had carried out the transactions, it was for the Kambli 4 arbp1112.10 Respondent to examine Mr.Deliwala as witness. What is further to be seen is that though it is a specific case of the Petitioner that he has issued contract notes on regular basis to the Respondent, and this contention was denied by the Respondent, the Arbitrators in the entire award have not even referred to the aspect that the contract notes were issued and received by the Respondent. The arbitral tribunal should have examined this aspect of the matter to find out whether the contract notes were regularly issued by the Petitioner as claimed by him. If that fact is established, that would have proved that the Petitioner was carrying out transactions in the account of the Respondent as per the instructions given by the Respondent. Thus, the Arbitrators have excluded from their consideration this crucial aspect of the matter. 6. Taking overall view of the matter, therefore, the award made by the Arbitral tribunal cannot be sustained. It has to be set aside. It is accordingly set aside. Petition disposed of. (D.K.Deshmukh, J.) Kambli 5 arbp1112.10