1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 566 OF 2009 M/s.Angel Broking Limited G1 Akruti Trade Centre Ropad No.7, MIDC, Andheri (East), Mumbai-93 ...Petitioner. Vs. Pushpa Jain 301, Poo0nam Building, 67A, Liking Road, Near Ram Krishna Mission, Khar, Mumbai and also at “Nana House”, Near Public Park, Near Upvan Office, High Court Road, Jodhpur 342 991, Rajasthan ...Respondent. Mr.Deepak Dhane i/b. Joby Mathew & Deepak Dhane for the Petitioner. Mr.Sunil Jain, Power of Attorney holder of Respondent in person. CORAM :- ANOOP V. MOHTA, J. DATED :- 17th February, 2010. JUDGMENT:- 1 The petitioner is a Trading Member and the respondent is the constituent as contemplated under the Rules, Bye-laws and Regulations of the Bombay Stock Exchange Limited (BSEL Rules). 2 2 The petition is under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Act) listed for final hearing whereby, challenge is made to the Award dated 16.04.2009 passed by the Arbitrator constituted under the BSEL Rules. 3 The facts are as under: On October 20, 2007, the respondent opened a trading account with the petitioner. The respondent entered into several transactions on the BSE Capital Segment through the petitioner in the normal course of business. Consequent to the carrying of aforesaid transactions the respondent’s account maintained with the petitioner on the NSE Futures & Options Segment show a debit balance of Rs.67,271.79. 4 On April 2, 2008, the respondent instructed the dealer of the petitioner to sale 200 shares of GSS America. The dealer of the petitioner immediately informed the respondent that due to some technical problem the whole order could not be executed and only 25 shares were sold. The respondent thereafter cancelled the remaining order and instructed the dealer of the petitioner to once again sell the remaining 175 shares of GSS America to the dealer of the petitioner. 5 On September 29, 2008, the respondent filed an Arbitration claim for an amount of Rs.1,53,671.72 (Rupees one lakh fifty three thousand six hundred seventy one and seventy two paise only) against the petitioner before the Bombay Stock Exchange Limited wherein Justice Katy Keki 3 Baam (Retd.) was appointed as a sole Arbitrator. The learned Sole Arbitrator fixed a hearing in the matter on December 11, 2008. 6 On December 11, 2008, the authorized representatives of the petitioner and the respondent appeared before the learned sole Arbitrator. The authorized representative of the petitioner sought time to file its reply to the statement of case of the respondent. Thereafter, the learned sole Arbitrator fixed the next hearing in the matter on January 19, 2009. 7 On January 19, 2009, the authorized representative of the petitioner and the respondent appeared before the learned sole Arbitrator. The petitioner filed its reply dated December 11, 2008 filed its reply to the statement of case of the respondent. The petitioner vide said reply dated December 11, 20089 also made a counter claim for an amount of Rs. 67,271.79 (Rupees sixty seven thousand two hundred seventy one and seventy nine paise only). The next hearing in the matter was fixed on February 2, 2009. 8 On February 2, 2009, the authorized representative of the petitioner and the respondent appeared before the learned sole Arbitrator. The respondent filed its rejoinder in reply the counter claim of the petitioner. Thereafter, the petitioner sought time to file its Sur-rejoinder and same was granted. Therefore, the learned sole Arbitrator fixed the next hearing in the matter on March 13, 2009. Thereafter, the petitioner vide its letter dated March 17, 2009 filed its Sur-rejoinder. 4 9 On March 23, 2009, the authorized representative of the petitioner and the respondent appeared before the learned sole Arbitrator and made submissions. The learned sole Arbitrator after hearing submissions of both the parties closed the reference. 10 On April 16, 2009, the learned sole Arbitrator passed the impugned Award. 11 On April 24, 2009, a copy of the impugned Award is received by the petitioner. Hence the present petition. 12 The learned Arbitrator, after considering the affidavit and rival contentions placed on record, has passed the impugned award against the Petitioner by observing as under:- “21 In the correspondence exchanged and received by the Respondents at no point of time have the Respondents brought to the notice of the Applicant that there were some problems in the system, which prevented them from placing the orders for the sale of the remaining 175 shares. One fails to understand as to how when the order was placed for the sale of 200 shares, the sale of only 25 shares went through. The explanation offered by the Respondents is contradictory and not convincing and no reliance can be placed on the same. 22 Even before the Investors Grievance Cell the Respondents have not stated that they could not sell the shares because of problems in the system. The Tribunal find it difficult to accept the contentions of the Respondents that there was a problems in the system, as a result of which they were not able to sell remaining 175 shares as except of the statement made before the IGRC, the Respondents have not produced any record to support their contentions. The Applicant is therefore entitled to be compensated for the negligence/ inaction of the dealer of the Respondent. 5 23 A perusal of the Ledger reflects that a sum of Rs. 67,271.79 is the amount due and payable in the Applicant’s account with the Respondents which is required to be deducted and the Applicant is entitled to her balance of Rs.86,399.93. 24 Hence, I pass the following Award taking into consideration the Counter Claim of the Respondent to the extent of Rs.67,271.79. The Respondent is directed to pay to the Applicant a sum of Rs.86,399.93. A W A R D (i) The Respondent is directed to pay to the Applicant a sum of Rs.86,399.93 ps. (Rupees Eighty Six thousand three hundred ninety nine and paise ninety three only) (ii) Each party to bear their own costs.” 13 There is no challenge so far as the counter claim of the Petitioner - the original Respondent (Applicant). Therefore, that part is maintained. 14 With regard to the main contention, the learned Arbitrator considering the material available on record gave above reasoning, which in the present facts and circumstances for want of contra material on record, need no interference. There is no perversity. The award so passed is well within the frame work of law and the record, specially in view of the admitted fact that the Respondents placed an order of sale of 200 shares but as contended it could not be executed fully in view of the technical problems in the system. The Petitioner unable to place on record the 6 material to support the same with regard to the alleged technical problems. Therefore, as the order for sell of 200 shares was placed but unable to execute the same in full but restricted to only for 25 shares and further that the Petitioner unable to place, even on record, any contra material including recorded conversation and therefore, findings so arrived at by the learned Arbitrator need no interference. 15 Considering the scope and purpose of Section 34 of the Act and as no grounds are made out as elaborated in M. Anasuya Devi & Anr. Vs. M. Manik Reddy & Ors. (2003) 8 S.C.C. 565, as the award is passed after following due procedure of law after giving full opportunity to the parties and supported the reasons based upon the material available on record and the award is well within the scope of reference and the record. 16 The petition, so filed is, therefore, dismissed. No order as to costs. (ANOOP V. MOHTA, J.)