1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 460 OF 2009 M/s. Angel Capital & Debt Market Limited G1, Akruti Trade Centre, Road No.7, MIDC, Andheri (East), Mumbai-400 093 ...Petitioner. Vs. Jayaben Patel, 57, Harishnagar Society, Haribaug, Varachha, Surat-369006. ...Respondent. Mr. Shashikant Chandak i/by Joby Mathew and Deepak Dhane for the Petitioner. None for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 6th November, 2009. ORAL JUDGMENT:- 1 The petitioner has invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act), as the sole Arbitrator in the matter of arbitration under the Bye-laws, Rules and Regulations of 2 the National Stock Exchange (for short, NSE), rejected the claim by the impugned order/ award. 2 None present for the Respondent. Office endorsement regarding service, is also on record. 3 The Arbitrator has observed in Paragraph Nos. 5.14 to 5.16 as under:- 5.14 The Applicant has preferred claim of Rs.1.45,172.60 being the debit balance in NSE Cash segment whereas there were no dues claimed from the Respondent for NSE F & O Ledger. In spite, shares bought on NSE Cash were sold on BSE Cash and the proceeds of which were transferred to NSE F & O segment is not convincing. The claim of the Applicant for Rs.1,45,172.60 being the amount of shares purchased on NSE Cash. The Applicant had sold the said shares in BSE for Rs.1,45,655.97 thereby having a net effect of Rs.483.37. 5.15 The Sole Arbitrator also observes from the ledger accounts for NSE Cash and F & O segment that no money has been collected from the Respondent but to the contrary the cheque deposited by the Applicant received from the Respondent had been returned unpaid on several occasions. 5.16 The Sole Arbitrator is not satisfied with the claim amount preferred by the Applicant. The Applicant has not come clear with the facts of the case. In absence of all such non-compliance, the Sole Arbitrator had to rely on the documents available on record based on which the Sole Arbitrator concludes that the Applicant has failed to prove its claim.” 4 The above observation itself demonstrate that the amount was not in 3 dispute. Otherwise, there was no reason to issue a cheque. There is also a clear observation that the cheque deposited by the petitioner received from the Respondent had returned on several occasions. This facet, according to me, and in the present case respondents though served, not even contesting the averments made in the Petition itself is sufficient to set aside the award on merit itself. In a transaction of this nature, if party issues a cheque and which remained unpaid on several occasions, that itself is a sufficient foundation to consider the conduct and case of the Respondent. In my view, Petitioner-applicant having placed on record his case including the averments with respect to the unpaid/returned cheque, the burden lies upon the Respondent to defend the case. However, the Arbitrator has dismissed the case of the Petitioner-Applicant by observing that “The Applicant has not come clean with the facts of the case”. In absence of all such non-compliances, rejected the Applicant’s case by observing that he failed to prove his case. This in my view, is not correct. Burden is wrongly shifted. The Respondent failed to discharge his burden. Therefore, the award is liable to be set aside. It is accordingly quashed and set aside. 5 The Petition is allowed accordingly. No order as to costs. 6 The liberty is granted to the Applicant-Petitioner to apply afresh. (ANOOP V. MOHTA, J.)