Delhi District Court
Cs No. 1957/14 Rohtash vs . Motilal Oswal Securities Ltd. & Ors. ... on 13 March, 2015
CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015
IN THE COURT OF ADDL. DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
PRESIDED BY :MS. PINKI
Civil Suit No. 1957/2014
In the matter of:
Rohtash
S/o Sh. Dayanand
R/o H.No. 130, Gali No. 5,
West Krishna Vihar Colony,
Najafgarh, New Delhi
Presently at :
H.No. 57 A, Nanak PIAO1,
BBlock, Gopal Nagar,
Najafgarh, New Delhi
....Petitioner
(Through Mr. Naveen Tyagi, Advocate)
Versus
1. Motilal Oswal Securities Ltd.
2nd Floor Palm Spring Centre,
Palm Court Complex Link Road,
Malad, West Mumbai - 400064.
Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 1 of 24
CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015
2. Justice K.S Gupta ( Retd)
The Arbitration Department
N.S.E of India Ltd.
4th Floor Jivan Vihar Building
Parliament Street
New Delhi.
.....Respondent No.1
(Through Mr. Sunil Goyal Advocate )
Date of Institution of Suit : 29.03.2014
Date of reserving judgment : 13.03.2015
Date of pronouncement : 13.03.2015
APPLICATION UNDER SECTION 34 OF THE ARBITRATION &
CONCILIATION ACT, 1996,
FOR SETTING ASIDE AWARD DATED 28.02.2014
J U D G M E N T:
1. This order shall dispose off a petition under Section 34 of the Arbitration & Conciliation Act, 1996 ( hereinafter referred to as the "Act") filed by the petitioner, primarily against Respondent No.1, i.e, M/s Motilal Oswal Securities Limited for setting aside the impugned Award dated 28.02.2014, passed in the matter by Sole Arbitrator Respondent No. 2 (hereinafter referred to as the "impugned Award") at New Delhi. Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 2 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015
2. Objections under Section 34 of the Arbitration & Conciliation Act, 1996 challenging impugned Award dated 28.02.2014 have been filed on 29.03.2014 by petitioner / claimant Rohtas. The inter alia objections raised by petitioner are that the learned Arbitrator failed to exercise its judicial discretion on the fact and circumstances of the claim by awarding the amount of Rs. 3,50,000/ only instead of the whole claim of Rs. 6,70,000/ ; because the impugned Award is against law of land, facts and evidence on record; the learned Arbitrator has failed to appreciate that the allegations made against the respondent by the applicant in his claim was supported by material evidence and the same were duly admitted by the respondent in the Video CD and their emails ; moreover, the learned Arbitrator came to conclusion that respondent is registered subbroker has committed wrong and done transactions in the account of the claimant without his permission / consent and awarded Rs. 3,50,000/ to the claimant who have awarded the whole claim of Rs. 6,70,000/.
3. The record reflects that Ms. Deepika Sachdeva, advocate learned counsel appeared for respondent no.1 on 24.07.2014 before learned Predecessor of this court and on that day respondent no.1 was directed to file reply, if any, within four weeks. On 10.09.2014 even though Ms. Deepika Sachdeva, advocate, appeared for respondent no.1 but preferred not to file reply. On 30.10.2014 Mr. Ankur Rai, advocate, had appeared for respondent no.1 but no such reply was filed. The original Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 3 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 record of arbitrator was transmitted to this court by respondent no.2 through learned counsel for the respondent no.1.
OBJECTOR'S CASE
4. Briefly stating the petitioner / objector was claimant in claim case. The impugned Award was passed by learned Arbitrator / respondent no.2 on 28.02.2014. The claimant / objector had transfered a sum of Rs. 10,50,000/ online on 23.05.2013 towards margin and MTM obligation for sale and purchase of shares in cash and F &O segment to the respondent and a Client Code No. PUGA 1361 was allotted by the respondent to the claimant. Due to illness of his wife, the claimant was not been able to conduct any trade. After one and a half to two months when the claimant contacted the respondent, he was informed that a sum of Rs. 13,00,000/ was lying in credit in the account of the claimant. During that period claimant had not carried any trade, so he became suspicious and inquired from the respondent no.1. Respondent no.1 refused to furnish the details of the transaction.
5. One of the officials of respondent No.1 informed the claimant that an amount of Rs. 3,80,000/was lying in credit in the account of the claimant. On several complaints respondent No.1 admitted its mistake and offered to pay a sum of Rs. 3,50,000/ in monthly installments. The claimant was forced to withdraw the complaints. The claimant prayed for necessary action against the respondent No. 1 before Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 4 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 the sole arbitrator.
6. The claimant filed claim for reimbursement of entire amount of Rs. 6,70,000/ out of the total amount deposited by the claimant as the claimant had withdrawn the balance amount of Rs. 3,80,000/. prior to filing the claim. The claimant talked to Mr. Arbab Mujtaba, the Manager, of respondent no.1 / Motilal Oswal Securities Limited and a CD was got prepared. Copy of the same and its transcript was also submitted before the Hon'ble Sole Arbitrator and it was also corroborated with the proposed agreement dated 04.09.2013 sent by Mr. Puskin Gandhi GM to Mr. Arbab Mujtaba through the email ID of the respondent.
7. The learned Arbitrator after perusing the pleading of the parties and hearing the arguments came to the conclusion that there was no occasion for making payment of the said amount, if no wrongs were committed or no transactions were carried in the account of the claimant by the respondent / its registered sub broker. Respondent no.1 cannot escape the liability for payment of the said amount of Rs. 3,50,000/. The learned Arbitrator pleased to pass the impugned Award for an amount of Rs. 3,50,000/ against the respondent no.1 for the admitted amount of Rs. 3,50,000/.
RESPONDENT NO.1' S CASE
8. Despite opportunities respondent No.1 has preferred not to Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 5 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 file reply. It has been submitted on behalf of respondent No.1 that their reply to claim before the learned Arbitrator be treated as reply to this petition.
ISSUE
9. The matter in controversy revolves around the following issue:
''Whether the award is liable to be set aside in view of the objections?'' RELIANCE
10. Respondent No.1 has relied on the following judgments:
i. Mahesh Daulatram Changrani Vs. Religare Securities Ltd" ( Supra) decided by Mr. Justice Anoop V. Mohta of Hon'ble Bombay High Court on 14.02.2012. ii. "Anvar P.V V. P.K. Basheer And Ors.", (2014) 10 Supreme Court Cases 473.
11. This court relies on the following judgments : i. Government of NCT Delhi Vs. Khem Chand,2003 (2) RAJ 437. ii. India Tourism and Development Corporation Vs. T.P. Sharma, 2003 (3) Recent Arbitration Judgments 360. iii. Sh. M.C. Katosh Vs. Union of India & Ors.,2005 (1) AD Delhi 1979.
iv. Olympus Superstructure Pvt. Ltd. Vs. Meena Vijay Khatana Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 6 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 & Ors.,AIR 1999 SC 2102.
v. Indian Tourism Development Corporation Ltd.Vs. Buddiraja Electrical, 2003 (2) RAJ 216 (Delhi). vi. Renu Sagar Power Co. Ltd. Vs. General Electric Co., AIR 1994 SC 860.
vii. Oil and Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd., AIR 2003, Supreme Court, 2629.
viii. Bhagwati Oxygen Ltd. Vs. Hindustan Copper Ltd.,AIR 2005 SC 207.
ix. Bharat Coking Coal Ltd. Vs. M/s Annapurna Construction, (2003) 8 SCC 154.
x. Kesar Enterprises Vs. D.C.M. Shriram Industries Ltd. & Another 2000 VII Apex Decisions (Delhi) 794. xi. Tribal Cooperative Marketing Development Federation of India Limited Vs. Auro Industries Limited, 2002 VII Apex Decisions (Delhi) 194.
xii. Secretary Irrigation Department, Govt. of Orissa and Ors.
etc. Vs. G.C. Roy, 1992 (1) Arbitration Law Reporter, 145. FINDINGS
12. Contentions of either side have been heard and considered. Record perused.
13. Learned Counsel for respondent no.1 has submitted that objections are not covered under section 34 of Arbitration and Conciliation Act, 1996.
14. At this stage, it will be relevant to know the legal Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 7 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 position regarding the scope of objections under section 34 of the Arbitration and Conciliation Act, 1996, it will be in fitness of things to reproduce Section 34 (2) of the Arbitration and Conciliation Act, 1996 which provides the ground for setting aside an Arbitral award. The relevant provisions reads as under: ''2(a) the party making the application furnishes proof that
(i) a party was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 8 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Par from which the parties cannot derogate, or failing such agreement, was not in accordance with this Part.''
15. In judgment titled Govt. of N.C.T. Delhi Vs. Khem Chand (Supra), it was observed by Hon'ble Mr. Justice B.N. Chaturvedi of Delhi High Court by relying upon AIR 1963 SC 677 that a Court should approach an award to support it if it is reasonable, possible rather than to dispute it, by calling it illegal. The law in this regard as it existed prior to enactment of Arbitration and Conciliation Act, 1996 still holds the field. It was further observed that the jurisdiction of the Court when called upon to decide the objections raised by a party against an arbitral award is limited, as expressly indicated in the Arbitration and Conciliation Act, 1996. The court has no jurisdiction to sit in appeal and examine the correctness of the award on merits with reference to the material produced before the arbitrator, it can not sit in appeal over the view of the arbitral by Secretary Irrigation Department, Govt. of Orissa and Others etc. Vs. G.C. Roy (supra) reexamining and reassessing the material. Observations made by Russel were reproduced as follows: ''It is not misconduct on the part of an Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 9 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 Arbitrator to come to an erroneous decision, whether his error is one of fact or law, and whether or not his findings of fact are supported by evidence. It may, however, be misconduct if there are gross errors in failing to hear or improperly receiving evidence.''
16. Similar view was taken by Hon'ble Mr. Justice J.D. Kapoor in India Tourism and Development Corporation Vs. T.P. Sharma (Supra) and it was held that findings of the arbitrator on the factual matrix need not to be interfered with as the Court does not sit in appeal and the Courts are also refrained from reappreciating or reevaluating the evidence or the material before the arbitrator unless perversity is writ large on the face of the award or the award suffers from the vice of jurisdictional error, sanctity of award should always be maintained.
17. Similar view was taken by Hon'ble High Court in Sh.
M.C. Katosh Vs. Union of India & Ors. (Supra) wherein it was held by Hon'ble Mr. Justice R.C. Jain that arbitrator being sole and final judge of fact and the Court is bound by the findings of learned Arbitrator and cannot review them unless unsupported by evidence or unless appears from award itself that there was no evidence to support findings.
Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 10 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015
18. As a matter of fact, the contention and tenor of the objections raised against the award in question appear more akin to those contemplated under Section 30 and 33 of the Arbitration Act, than the ones under the new Act. The scope of Section 34 of the Act which provides for setting aside of the award is far less than under Section 30 and 33 of the old Act as observed by Hon'ble Apex Court in Olympus Superstructure Pvt. Ltd. Vs. Meena Vijay Khatana & Ors. (Supra).
19. The grounds for setting aside an arbitral award stated in Section 34 of the Act are exhaustive and Court can set aside an arbitral award only if ''one of the grounds mentioned therein is found''. Objection raised against the award in the present case even, falls short of making out any of the grounds stated in Section 34 of the Act.
20. In Indian Tourism Development Corporation Ltd. Vs. Buddiraja Electrical (Supra), it has been held that the arbitrator has exceeded his jurisdiction and the award was against public policy of India. Clause 2(b)(ii) of the Section 34 of Arbitration and Conciliation Act, 1996 provides that the arbitral award, if it is found to be in conflict with public policy, same may be set aside by the court. An explanation is added to the provision providing that an Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 11 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 award shall be treated to be in conflict with public policy of India if making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81 of the Act. This expression ''public policy of India'' was considered by Hon'ble Apex Court in Renu Sagar Power Co. Ltd., Vs. General Electric Co. (Supra) where it was held that if the award is found to be contrary to fundamental policy of Indian Law or Indian interest or justice and morality, the same can also be held to be contrary to public policy of India. On facts, it was found that the arbitrator had recorded his reasons for coming to the conclusion for allowing the claim and no specific case should be made out to prove and establish that the arbitrator exceeded his jurisdiction in making the award. As such, same cannot be said to be in any manner coming within the ambit of the provisions of Section 34 of the Arbitration and Conciliation Act, 1996.
21. Supreme Court has held in the case of Oil and Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. (Supra), wherein the court observed as follows : ''Therefore, in our view, the phrase ''public policy of India'' used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 12 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is on the fact of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgement/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term ''public policy'' in Renu Sagar Power Co. Ltd. Vs. General Electric Co., 1994 Supp (1) SCC 644 it is required to be held that the award could be set aside if it is patently illegal. The result would be award could be set aside if it is contrary to;
(a) Fundamental policy of Indian Law, or
(b) the interest of Indian: or
(c) justice or morality; or
(d) in addition, it is patently Illegally must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy.
Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.''
22. In judgment titled Bhagwati Oxygen Ltd. Vs. Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 13 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 Hindustan Copper Ltd. (Supra), it has been held vide para28 that: ''In Rajasthan State Mines & Minerals Ltd.
Vs. Eastern Engineering Enterprises & Another, (Supra), this court after considering several decisions on the point held that if an Arbitrator has acted arbitrarily, irrationally, capriciously or beyond the terms of the agreement, as award passed by him can be set aside. In such cases the Arbitrator can be said to have acted beyond the jurisdiction conferred on him.''
23. Vide para29 of Bhagwati Oxygen Ltd. Vs. Hindustan Copper Ltd. (Supra) it has been held that: ''In U.P. State Electricity Board Vs. Searsole Chemicals Ltd. (Supra), that: where the Arbitrator had applied his mind to the pleadings, considered the evidence adduced before him and passed an award the court could not interfere by reappraising the matter as if it were an appeal.''
24. Vide para30 of Bhagwati Oxygen Ltd. Vs. Hindustan Copper Ltd. (Supra) it has been held that: ''In Indu Engineering & Textiles Ltd. Vs Delhi Development Authority (Supra) that:
''An Arbitrator is a judge appointed by the Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 14 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 parties and as such the award passed by him is not to be lightly interfered with.''
25. Vide para31 of Bhagwati Oxygen Ltd. Vs. Hindustan Copper Ltd. (Supra) it has been held that: ''In Bharat Coking Coal Ltd. Vs. M/s Annapurna Construction (Supra) that: there is distinction between error within jurisdiction and error in excess of jurisdiction. The role of the Arbitrator is to arbitrate within the terms of the contract and if he acts in accordance with the terms of the agreement, his decision cannot be set aside. It is only when he travels beyond the contract that he acts in excess of jurisdiction in which case the award passed by him becomes vulnerable and can be questioned in an appropriate court.''
26. In para 8 of judgment titled Kesar Enterprises Vs. D.C.M. Shriram Industries Ltd. & Another (Supra) Hon'ble Mr. Justice Vikramajit Sen, Judge Delhi High Court has dealt with case titled M/s Sundaram Finance Ltd. Vs. M/s. NEPC India Ltd., reported as A.I.R. 1999, SC 565 in the following words: ''............ the following passage from M/s Sundaram Finance Ltd. Vs. M/s. NEPC India Ltd. reported as A.I.R. 1999, SC 565 wholly clarifies the view of the Apex Court: ''The 1996 Act is very different from the Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 15 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 Arbitration Act, 1940. The provisions of this Act have, therefore, to be interpreted and construed independently and in fact reference to 1940 Act may actually read to misconception. In other words, the Provisions of 1996 Act have to be interpreted being uncommenced by the principles underlying the 1940 Act. In order to get help in construing these provisions it is very relevant to refer to the UNCITRAL MODEL LAW rather than 1940 Act.''
27. Para - 9 of judgment titled Kesar Enterprises Vs. D.C.M. Shriram Industries Ltd. & Another (Supra) reads as under: ''These provisions have been amended clearly with a view to circumscribe to a narrow point, the objections that can be entertained where an Arbitral Award is assailed. To widen the scope of Section 34 would be ignoring and setting at nought the legislative intent, which perhaps was itself a response to the judicial lament extracted above.''
28. Para - 10 of judgment titled Kesar Enterprises Vs. D.C.M. Shriram Industries Ltd. & Another (Supra) reads as follows : ''In these circumstances, I am unable to read Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 16 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 and interpret the words ''public policy of India'', as being at all attracted in cases where a particular party alleges that a point was raised before the Arbitrator but not subsequently dealt with by him in the Award. I am in no manner of doubt, that such a conduct, even if it did happen, would not amount to an infraction of public policy, or for that matter, the rules of natural justice.''
29. Para - 16 of judgment titled Tribal Cooperative Marketing Development Federation of India Ltd. Vs. Auro Industries Limited, (Supra) reads as follows: ''Any finding of the Arbitrator either on factual or on legal matrix if on subsequent examination is found to be wholly unsound the award is liable to be set aside as it amounts to factual or legal misconduct. In ordinary course the Court does not sit in Appeal nor is it required to re appreciate the evidence and the material on record produced before the Arbitrator. Even if there are erroneous findings of the Arbitrator as to the facts the Court should always refrain from interfering with it. What should irk the Court is that perversity of illegality should be writ large on the fact of the award.''
30. In view of the various authoritative pronouncements discussed above, it is clear that, this court is not sitting in appeal Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 17 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 against the impugned Award passed by the sole arbitrator.
31. Learned counsel for the petitioner / objector has referred to ground ' C ' and submitted that once the learned Arbitrator came to the conclusion that the respondent / its registered Sub broker has committed wrong and done transactions in the account of claimant without his permission and consent and awarded Rs. 3,50,000/ to the claimant, therefore, in view of such observations he should have awarded a whole claim i.e. Rs. 6,70,000/.
32. Learned counsel for the respondent no.1 has submitted that respondent No. 1 has not filed any objection and reply before the learned Arbitrator be considered as reply to these objections. He has also referred to Electronic Contract Notes ( ECN) and submitted that no reply to this e mail was sent. There was an offer to settle this issue amicably but it does not amount to admission. He has also submitted that respondent has executed all the transactions for sale and purchase of shares under NSE F&O segment. During the period from 23.05.2013 to 25.07.2013. The respondent in addition to the telephonic confirmation of transactions to the claimant had also sent SMS confirmation on day to day basis on his mobile number 92131725634. The objector / claimant had received the SMS and never raised any objection of any nature about the transactions executed in his name. The respondent No. 1 has prepared the contract notes in the name of the claimant for transactions executed and sent Electronic Contract Notes ( ECN) on the claimant's email ID Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 18 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 [email protected]. The claimant has received the contract notes and accepted the transactions mentioned therein. He has further submitted that the telephonic bills produced by the respondent along with reply filed before learned Arbitrator shows there was regular communication between the claimant and officials of respondent No. 1 from 12.06.2013 to 24.06.2013 establishing that the stand taken by claimant that he had not done transactions in June - July 2013 is false and malafide. The email and the attachment received by the claimant is also not relied as the same was not acted upon. It has also been argued on behalf of respondent no.1 that claimant has admitted having received confirmation of transactions by SMS and ECN. The NSE Byelaws and SEBI regulations provide trade confirmation to the client and the same were complied with by the respondent. The claimant having received SMS trade confirmation and contract notes did not raise any objection therefore now is not entitled to raise any objection under the Byelaws and Regulations of the NSE and SEBI. Since the transactions have resulted into loss the claimant has dishonestly disputed the validity and filed the present claim before the learned Arbitrator.
33. The respondent No.1 has also relied upon the judgment tiled as " Mahesh Daulatram Changrani Vs. Religare Securities Ltd" ( Supra). It has been submitted that para no. 8 of this judgment is in respect of video recording. It has been submitted that in that case there was no objection raised at the relevant time. The transaction of January 18 and 21, 2008 were executed under the instructions from the applicant. The Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 19 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 contention that it were without authority and instructions has rightly been rejected by the arbitrator by passing the impugned Award. He has also referred to para no. 8 of the judgment, wherein, learned counsel for the petitioner had relied on the video recording done by him on national holiday pending dispute by calling the official of respondent. It was observed that it itself shows an undue influence and pressure on the employee of the petitioner. Any material so collected, after the transactions were over, cannot be used to challenge the transaction in such fashion. There is no such procedure and practice available in these bye - laws and agreement between the parties. Even otherwise, such recording itself is impermissible. He has further submitted that impugned Award is liable to be set aside as electronic record is not admissible in evidence in absence of requisite certificate under Section 65 B of The Indian Evidence Act. It is pertinent to mention that respondent No. 1 has not filed objections challenging the impugned award.
34. In rebuttal learned counsel for petitioner / objector has submitted that there is dispute only with regard to the amount of impugned Award i.e. in place of Rs. 3,50,000/, the amount of Rs. 6,70,000/ was to be awarded to the petitioner.
35. After considering contention of all the parties, learned Arbitrator has rightly opined that, respondent cannot escape liability of payment of Rs. 3,50,000/. The contention that agreement for resolution of dispute sent by email dated 04.09.2013, on behalf of respondent Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 20 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 stipulates that an amount of Rs. 3,50,000/ is to be paid to the claimant in installments from the earnings of the brokerage from the future business has also been duly dealt with by the learned Arbitrator, by observing that it would be unfair trace practice on the part of respondent / its registered Sub Broker to compel the claimant to do similar business in future to enable them to earn further brokerage for payment of the said amount.
36. The respondent no. 1 has relied upon judgments tiled as "Mahesh Daulatram Changrani Vs. Religare Securities Ltd." and "Anvar P.V. Vs. P.K. Basheer And Ors." before learned Arbitrator as well as before this court. This court is of the opinion that, since the court is of the considered view that the learned arbitrator has duly dealt with the matter, findings arrived at by the learned Arbitrator are supported by cogent reasons. Since, admittedly, respondent no.1 has not filed any objection / counter claim to objections filed by the claimant till date, there is no need to deal with this authority.
37. The learned Arbitrator has duly dealt with the matter in detail after giving cogent reasons and had arrived at the conclusion that the respondent cannot escape liability of payment of Rs. 3,50,000/ and it would be unfair trade practice on the part of respondent / its Sub Broker to compel the claimant to do similar business in future to enable them to earn further brokerage for payment of the said amount.
38. Learned counsel for respondent No.1 has submitted that the Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 21 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 claimant for resolution of dispute email dated 04.09.2013 was sent only because of the reason that respondent no.1 wanted to settle the issue, as there was apprehension that such dispute would damage the reputation of respondent no.1.
39. This court is afraid to accept ground "A" and ground "B" of objections that the video CD cannot be considered in view of authoritative pronouncement relied by learned counsel for the respondent No.1. The video CD is admittedly made after the transaction and in view of judgment titled as "Mahesh Daulatram Changrani Vs. Religare Securities Ltd." (Supra). It shows undue influence and pressure of employees of respondent no.1 and such CD / material collected after conclusion of transaction cannot be used for challenging the transaction in such fashion. Such recording is of no use when there is sufficient material on record to show that at the relevant time parties entered into the transaction as per instruction. Admittedly, there is no such requisite Certificate under Section 65 of Indian Evidence Act. Even, though formal evidence has not been recorded but for considering the video CD such Certificate should have been placed on record by the objector / claimant. The ground " C " is also not tenable, as speaking award has been passed by learned Arbitrator.
40. A perusal of impugned Award clearly shows that the learned Arbitrator has duly dealt with the matter. The detailed well reasoned impugned Award has been passed. He has dealt with each Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 22 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015 and every aspect of the matter. The finding arrived at by the learned Arbitrator are supported by cogent reasons. After considering the record the arbitral award has been passed.
41. In these circumstances, this court is of the view that, the impugned Award passed by learned Arbitrator is well reasoned award. The court is not required to appreciate and reevaluate the findings given by the learned Arbitrator. The learned Arbitrator has duly explained for arriving at its decision.
42. In the instant case, in view of the above said discussion and after considering the contention of learned counsel for parties and in view of the various authoritative pronouncements discussed above and as this court is not sitting in appeal against the impugned Award passed by Sole arbitrator, the court is not required to re appreciate or reevaluate the material on record before the learned Arbitrator, the objector has failed to show as how the passing of the impugned award is against principles of natural justice or without jurisdiction. Therefore, there is nothing in the impunged award to show that there was no evidence to support the findings of the Arbitrator which calls for interference, as such the findings of Arbitrator which have been objected are upheld. Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 23 of 24 CS No. 1957/14 ROHTASH VS. MOTILAL OSWAL SECURITIES LTD. & ORS. DOD: 13.03.2015
43. In view of the foregoing reasons this court hold that the objector/petitioner has failed to make out any case for any interference with the impugned award dated 28.02.2014 under Section 34 of the Arbitration and Conciliation Act, 1996.
44. Accordingly, objections are overruled and petition is dismissed.
45. Parties shall bear their own cost.
46. File be consigned to record room.
Dictated & Announced in the (PINKI)
open court on 13.03.2015 Addl. District JudgeI/SouthWest
Dwarka District Courts: New Delhi
Pet. U/s 34 of Arbn. & Conciliation Act, 1996 "Objection Dismissed" Page 24 of 24