Delhi District Court
Sh. Rakesh Kumar Yadav vs M/S. Bma Wealth Creators Limited on 16 March, 2021
IN THE COURT OF SH. R.L. MEENA, ADJ02 & WAQF TRIBUNAL
(NEW DELHI DISTRICT), PATIALA HOUSE COURTS, NEW DELHI
Arbtn No.1012/2018
CNR No.DLND010027182018
Sh. Rakesh Kumar Yadav
K69, Defence Enclave,
Vasant Kunj Road,
Mahipalpur, New Delhi110037
..........Petitioner
Versus
1. M/s. BMA Wealth Creators Limited
29/5A, Dr. Ambedkar Sarani,
Topsia Road, Vishwakarma II,
Kolkata700046 (West Bengal)
2. National Stock Exchange of India Ltd.
4th Floor, Jeevan Vihar Building,
Parliament Street, New Delhi 110001
..........Respondents
Date of Institution : 07.04.2018
Date of Arguments : 03.03.2021
Date of Order : 16.03.2021
PETITION U/SEC.34 OF ARBITRATION AND CONCILIATION ACT, 1996
FOR SETTING ASIDE AWARD DATED 04.01.2018
ORDER
1. By this order, I shall dispose of application filed U/Sec.34 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as "said Act") challenging the order dated 04.01.2018 passed by the Arbitration Panel comprises Hon'ble Justice V.S. Aggarwal (Retired), presiding Arbtn No.1012/2018 Page No.1 of 6 Rakesh Kumar Yadav Vs. BMA Wealth Creators Ltd. & Anr. Arbitrator, Ms. Reeta Kumar & Sh. Rajat Mathur, Arbitrators, whereby the Arbitration Panel had dismissed the application of petitioner filed under Section 33 of the said Act.
2. Brief facts of the case are that petitioner filed an arbitration application dated 20.09.2012 seeking to hold the employee of the respondent company responsible and accountable for the illegal access to the trading account of the company and restore his holding in his trading A/c that was about Rs.2,00,000/. The said application of the petitioner was decided by Sole Arbitrator Justice M. A. Khan (Retired) who dismissed the said petition in totality vide Award dated January 29, 2013.
2.1 Petitioner had challenged the said Award by filing objections under Section 34 of the said Act before the court of Ms. Vineeta Goyal, the then ADJ, Patiala House Courts, New Delhi. The said objections of the petitioner were allowed by the said court vide order dated July 17, 2014. 2.2 Petitioner in view of the finding of the court of Ms. Vineeta Goyal, the then ADJ, filed fresh arbitration proceeding before the Sole Arbitrator Sh. Manish Gupta. The said Sole Arbitrator, after having gone through the entire claim of the petitioner, passed the Award in favour of petitioner vide order dated 03.08.2017.
2.3 Respondent filed appeal challenging the said arbitral award dated 03.08.2017 before the Arbitration Panel. The said appeal of the respondent was dismissed by the Arbitration Panel vide order dated 24.11.2017. 2.4 Petitioner moved an application under Section 33 of the said Act on 15.12.2017 before Arbitration Panel to incorporation of the corrections/ clarifications regarding shares.
2.5 Arbitration Panel dismissed the application of petitioner vide Arbtn No.1012/2018 Page No.2 of 6 Rakesh Kumar Yadav Vs. BMA Wealth Creators Ltd. & Anr. impugned order dated 04.01.2018 observing the fact that any addition or subtraction in the substantive Award is not permissible.
3. Petitioner has filed an application under Section 34 of the said Act to challenge the impugned order dated 04.01.2018.
4. I have heard arguments advanced by Sh. Rakesh Kumar Yadav, petitioner in person and perused the record carefully. It is to be note here that counsel for respondent has not appeared before the court for addressing the arguments.
5. During the course of arguments, it is argued by petitioner that Arbitration Panel has denied opportunity to him to be heard before passing the impugned order under Section 33 of the said Act. It is further submitted that the said Arbitrators had also ignored his legitimate concerns i.e. for restoration of status quo of the petitioner's share as on 27.03.2012 along with the number of shares be adjusted according to the face value of the split shares subsequent to the shares in 2012.
6. After having gone through the submissions of the petitioner and perusal of the record, I find that now it is to be seen by this court as to whether Arbitration Panel had not considered the plea of the petitioner under the scope of Section 33 of the said Act?
7. In order to deal the said aspect, it is relevant to discuss as to what was originally awarded to petitioner vide Award dated 03.08.2017 and whether proposed correction sought by the petitioner in his application under Section 33, is beyond the scope of Section 33 of the said Act. 7.1 In the original Award dated 03.08.2017, Sole Arbitrator had awarded the following reliefs:
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(i) The claim of the applicant is accepted. I order the respondent to restore the status quo of applicants account as on 27.03.2012, towards full and final settlement for the claim by the applicant w.r.t. the scripts as mentioned in point no.2 hereunder.
(ii) The respondent is directed to transfer the following shares into the demat account of the applicant either in the account maintained with the respondent or in any other account of applicant :
Sl. No. Name of the company No. of shares 1. Axis Bank Ltd. 50 shares 2. Reliance Industries Ltd. 50 shares 3. Reliance Infrastructure Ltd. 100 shares 4. Yes Bank Limited 100 shares
(iii) The respondent is further directed to pay a lump sum amount of Rs.
25,000/ in lieu of accrued dividend, bonus shares or right issue or any other benefits which may have accrued to the applicant.
(iv) The respondent to transfer the holding and to pay the lumpsum amount within 30 days of receipt of this order."
7.2 After passing the said Award dated 03.08.2017, now petitioner moved an application under Section 33 of the said Act before the Arbitration Panel to incorporate following corrections in respect of shares:
(a) To restore the status quo of the respondent account as on 27.03.2012, in respect the followings scrips, along with dividend, bonus shares or any shares issued towards stock split or right issues etc. and all or any benefits, income or any other right, title, interest that may have accrued;
to the holder of the share towards full and final settlement for the period Arbtn No.1012/2018 Page No.4 of 6 Rakesh Kumar Yadav Vs. BMA Wealth Creators Ltd. & Anr. from 27.03.2012 till date;
(i) (50) now 250 shares of Axis Bank (Shares Split on 28.07.2014)
(ii) (50) now 100 shares of Reliance Industries (Shares Split on
07.09.2017)
(iii) 100 Shares of Reliance Infrastructure
(iv) (100) now 500 Shares of Yes Bank (Shares Split on
12.09.2017)
(b) Cost of litigation, mental torture and harassment to the respondent, in
dragging unnecessary litigations to the sum of Rs. 2 lakhs. 7.3 Arbitration Panel vide impugned order dated 04.01.2018 dismissed the said application of the petitioner with following observations:
"We have already pointed out that appeal has been disposed of. Under Section 33 of the Arbitration and Conciliation Act one can only seek correction of typographical mistake or calculation mistake. Any addition or subtraction in the substantive award is not permissible. Therefore, the present application which seeks certain changes in the Award is not permissible. Application stands dismissed."
8. After having gone through the impugned order and perusal of record, I am of the considered view that the said impugned order of Arbitration Panel, is legally correct on the following reasons:
(i) In original Award dated 03.08.2017, petitioner was granted three reliefs. In the second relief, respondent was directed to transfer the specific number of shares in the account of petitioner, which is mentioned in table of the said order. Now, petitioner moved an application before Arbitration Panel seeking correction in respect of shares by increasing the number of shares, which was not permissible as it amounts to change in the Arbtn No.1012/2018 Page No.5 of 6 Rakesh Kumar Yadav Vs. BMA Wealth Creators Ltd. & Anr. substantive Award dated 03.08.2017.
(ii) Arbitration Panel had dismissed the appeal of respondent challenging the original Award dated 03.08.2017. In the said appeal, there was no issue of correction/ rectification as sought by the petitioner in his application under Section 33 of the said Act, therefore, Arbitration Panel was also not supposed to deal the issue raised in the application under Section 33 of the said Act.
(iii) Section 33 of the said Act empowers the Arbitral Tribunal to make correction of errors in Arbitral Award, to give interpretation of specific point or part of the arbitral Award and to make a additional Award as to the claim though presented in the arbitral proceedings but omitted from the arbitral Award. In the present case, petitioner has failed to show the aforesaid ingredients of Section 33 before the Arbitration Panel.
(iv) Arbitration Panel has considered the relevant facts of the application under Section 33, therefore, it cannot be said that opportunity of being heard was not given to the petitioner.
9. In the light of aforesaid facts & circumstances, I am of the considered view that the Learned Arbitrator has correctly passed the order dated 04.01.2018 and the same does not require any interference. Hence, the present petition U/Sec.34 of Arbitration and Conciliation Act, 1996, is dismissed. File be consigned to Record Room after due compliance.
RAM Digitally signed
by RAM LAL
LAL MEENA
Date: 2021.03.16
MEENA 17:27:50 +0530
Announced in the open Court (R.L. Meena)
on 16th March, 2021 ADJ02 & Waqf Tribunal
NDD/PHC/New Delhi
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Rakesh Kumar Yadav Vs. BMA Wealth Creators Ltd. & Anr.