Delhi District Court
M/S. Kassa Holdings & Consultants Pvt. ... vs Ms. Madhu Bala on 11 October, 2018
IN THE COURT OF ANKUR JAIN: ADDL.DISTRICT
JUDGE-10 (CENTRAL): TIS HAZARI COURTS: NEW DELHI
C.S. No. 316/13 (11260/16)
M/s. Kassa Holdings & Consultants Pvt. Ltd.
Registered office at WEA 17A/53,
Gurudwara Road, Karol Bagh,
New Delhi - 110005. .....Applicant
Versus
Ms. Madhu Bala
22, Swastik, Kunj Appartment,
Sector-13, Rohini
Delhi - 110085. .....Respondent
Petition filed on : 04.09.2013
Order reserved on : 13.09.2018
Order announced on : 11.10.2018
ORDER:
01. By this order, I shall decide the objection petition filed U/s 34 of Arbitration & Conciliation Act, 1996 (hereinafter referred to as Act) against the award dated 19.07.2013.
02. The brief facts of the case are that statement of claim was filed by the respondent alleging that she had C.S. No. : 316 of 2013 Page no. 1 intended to trade in NSC Gold, however on the advise of RM of the petitioner she opened a commodity trading account in gold. In the KYC form, she had given her e-mail ID as [email protected] but the same was tempered with and was written as [email protected], as a result of which she had not been receiving any information and the contract notes were sent on the tampered Email ID. It was also her case that she had requested many times for installation of software so that she could herself do online trading but despite promises it was never given. It is further stated that she has never authorized or placed any order for the trades and she came to know that on money has been usurped by the respondent in February, 2012 by resorting to unauthorized trading.
03. Reply was filed by the petitioner in which it was stated that respondent was regularly trading through our account, she had initially invested Rs. 1,00,000/- and further deposited a sum of Rs. 30,000/- and has withdrawn a sum of Rs. 45,000/- leaving behind only Rs. 1422/- in her trading account and the complaint was filed after about 8 months. It was further stated that the contract notes and the bills have been duly and regularly send to her Email-ID C.S. No. : 316 of 2013 Page no. 2 [email protected] and Email ID was confirmed by her when the KYC team called her on her registered mobile number for verification.
04. By the impugned award the Ld. Arbitrator held in favour of the respondent and directed the petitioner to return a sum of Rs. 85,000/- along with interest @ 10% p.a. from the date of the filing of the claim till realization.
05. The present objection petition has been filed against the said award. Reply has been filed by the respondent wherein there is simple denial of the averments made in the objection petition. It has been argued before this court that Ld. Arbitrator failed to consider the KYC form, bank KYC form and the fact that respondent never denied the Trade confirmation given through SMS, which is acceptable as per MC guidelines. In support of his arguments Ld. Counsel for the petitioner has relied upon judgment in 2007 (1) Arb. LR 447 (AP) (DB)- Transmission corporation of Andhra Pradesh Limited & Anr. Vs. Galada Power & Telecommunications Limited & Ors. and 2006(3) Arb. LR 610 (Delhi)-Oil & Natural Gas Corporation Limited Vs. Schlumberger Asia Services Ltd..
C.S. No. : 316 of 2013 Page no. 3
06. No arguments have been addressed on behalf of the respondent.
07. I have heard the Ld. Counsel for the petitioner and perused the record carefully.
08. In order to appreciate the rival contention it is important to note under what circumstances, the court can intervene and set aside the award. The Hon'ble Supreme Court in ONGC Vs. Saw Pipes (2003) 5 SCC 705 has held that award could be set aside if it is contrary to:-
a) Fundamental policy of Indian law; or
b) the interest of India; or
c) justice or morality, or
d) in addition, if it is patently illegal.
09. In DDA Vs. R.S. Sharma (2008) 13 SCC 80 the Hon'ble Supreme Court summarized the law and held that:
a) An award, which is:-
(i) contrary to substantiate provisions of law; or
(ii) the provisions of Arbitration & Conciliation Act 1996;
or
(iii) against the terms of the respective contract; or C.S. No. : 316 of 2013 Page no. 4
(iv) patently illegal or
(v) prejudicial to the rights of the parties is open to interference by the court under Section 34 (2) of the act.
b) The award could be set aside if it is contrary to:-
a) Fundamental policy of Indian law; or
b) the interest of India; or
c) justice or morality, or
c) The award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court.
d) It is open to the court to consider whether the award is against the specific terms of contract and if so, interfere with it on the ground that it is patently illegal and opposed to the public policy of India.
10. Keeping in view these principle and the statutory provision it has to be seen whether the award can be set aside or not. There can be no dispute to the proposition of law as laid down in the said judgment but the judgment have to be applied to the facts of the case.
11. In the facts of the present case the only dispute which appears to be is as to whether the E-mail ID of the C.S. No. : 316 of 2013 Page no. 5 respondent was tampered with by the petitioner or not. The Ld. Arbitrator had come to the conclusion that in fact unauthorized trade was carried out in the account of the applicant. It is the case of the applicant that her E-mail ID is [email protected] and not [email protected]. The KYC Form submitted by the respondent shows that the Email ID is love- [email protected]. However, there is no other document to show that respondent was using Email ID [email protected]. Ld. Counsel for the petitioner has argued that infact the bank KYC Form suggest that the Email ID was [email protected]. The bank KYC form was never placed on the record of the Ld. Arbitrator neither the same finds mention in the reply filed before the Ld. Arbitrator. Therefore, a new plea cannot be allowed to be taken at this stage neither the petitioner can be allowed to introduce a new document. Thus, no reliance can be placed on the bank KYC. The Ld. Arbitrator has also appreciated the fact that when the verification call was made the respondent had replied "thik thik". The fact that pronunciation of 'luv' and 'love' are same thus, it cannot be said that it was a proper verification. The contract notes and bills of the executed trades were never returned by the petitioner at her Email ID.
C.S. No. : 316 of 2013 Page no. 6 The Ld. Arbitrator has clearly recorded that respondent had placed order ass petitioner had not produced anything on record to suggest that in fact orders were placed by the respondent. This is despite the fact that petitioner was under
an obligation to maintain and preserve the recording as per the directions of the FMS. Accordingly there is no reason as to why the award should be interfered with, the objection petition liable to be dismissed.
Arbitration proceedings along with objection petition be consigned to Record Room.
Announced in the Digitally signed
open Court on 11.10.2018 ANKUR by ANKUR JAIN
Date:
JAIN 2018.10.11
16:17:05 +0530
(Ankur Jain)
Addl. District Judge (Central)-10
Delhi
C.S. No. : 316 of 2013 Page no. 7