Bombay High Court
Dedhia Investments (P.) Ltd. vs Jrd Securities (P.) Ltd. on 24 June, 2002
Equivalent citations: 2002(6)BOMCR102, (2002)4BOMLR930, 2003(1)MHLJ824
Author: S.A. Bobde
Bench: S.A. Bobde
JUDGMENT S.A. Bobde, J.
1. The petitioners challenge the final award dated 28-1-2002 of the Appellate Bench of the Mumbai Stock Exchange and the earlier arbitral award dated 26-4-2001 by this petition under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act').
2. Taking up the challenge to the final award of the Appellate Bench, there seems to be no merit in the petitioners contentions against it. The Appellate Bench had directed the petitioners to deposit 15 per cent of the amount awarded by the panel of the arbitrators under Bye-law No. 274A of the Rules, Bye-laws and Regulations of the Stock Exchange, Mumbai, 1957. This order to deposit the amount representing 15 per cent of the amount awarded, was made by the Appellate Bench by order dated 27-9-2001 when that Bench refused to exempt the petitioners from depositing the whole of the amount awarded.
3. Thereafter by final award dated 28-1 -2002 the Appellate Bench rejected the appeal relying on a rule as a part of regulation 15.23(V)(2) framed under Bye-law No. 263, which reads as follows :
"(2) An application for exemption to pay or deposit the amount or deliver the securities under the award of the Arbitral Bench shall be submitted along with the appeal memo and after notice to the other side it shall be disposed of by the Appellate Bench as far as possible within 15 days and the order passed thereon, in case it is not allowed wholly, shall be complied with by the appellant within 7 days of such order being communicated to him. In case the appellant fails to deposit the amount awarded or to deliver the securities or price thereof as per the award of the Arbitral Tribunal or to act as per order passed by the Appellate Bench on his application for exemption, the appeal shall stand rejected."
4. Mr, Rambhia, the learned counsel for the petitioners has failed to point out any illegality or infirmity in the order of the Appellate Bench rejecting the appeal on the ground of non-deposit of the amount. The learned counsel submitted that the final award is also vitiated on the same ground as the earlier award, namely, that there is no arbitration agreement between the parties. It would not be permissible to allow the petitioners to raise this ground since the final award is not passed after considering the question whether there is or is not arbitration agreement between the parties.
5. There is no reason why the doctrine of merger should not apply to the award of the Appellate Bench particularly having regard to the scheme of the Bye-laws which provide for an appeal. A Division Bench of the Madras High Court in M.A. & Sons v. Madras Oil & Seeds Exchange Ltd. has observed as follows ;
"(11) The third point may be quite briefly disposed of. Actually it largely depends upon the interpretation to be placed upon the words in condition No. 7 of the First Schedule to the Arbitration Act, that 'the award shall be final and binding on the parties and persons claiming under them respectively'. Naturally, these words have to be construed as subject to any right of appeal, which might be provided for either by the contract itself, or by any Bye-law governing the parties; AIR 1927 Cal. 647 is clear authority for this view. No doubt, except upon grounds specified in Section 30 of the Act, an award is not liable to be set aside, and is final between the parties. But, what is the award that is final between the parties when the procedure governing the parties itself makes provision for an initial award on arbitration, and an appeal which may be instituted by either party aggrieved ? An 'award' is defined in Section 2(b) of the Act as an 'arbitration award'.
As observed by the Supreme Court in (S) the legal pursuit of successive remedies will make them all proceedings connected by an intrinsic unity and 'to be regarded as one legal proceeding'. In that sense, it is the award by the appellate Tribunal, if an appeal is preferred which becomes the final award that governs the parties. The passage from Russel on Arbitration that we set forth earlier, as well as the decision of the Calcutta High Court in AIR 1927 Cal. 647 make it clear that it is perfectly legal to provide for different stages of arbitration, such as, from a single arbitrator to a committee of appeal, etc. It is the award which finally emerges from this procedure, which is conclusive as between, the parties and not liable to be set aside, except as provided for in Section 30 of the Arbitration Act 10 of 1940. For these reasons, we must hold that the provision for appeal is not ultra vires the law of Arbitration enacted in Act 10 of 1940..." (p. 395) This should be sufficient to dismiss the petition. In the interest of justice I have considered the merits of the submission and there seems to be none.
6. There is no substance in the petitioners contention that there was no arbitration agreement between the petitioners, viz., Dedhia Investments (P.) Ltd. and the respondents, viz., JRD Securities (P.) Ltd. The learned arbitrators have as a fact found that the petitioner-company is an investment company and the transactions were made in the petitioners name. The Delivery Book produced by the respondents showed delivery of shares made to the petitioner-company. The petitioners balance sheet obtained from the Registrar of Companies for the year ended 31-3-1999 reflects that the petitioners had paid a sum of Rs. 2,25,000 to Mr. Jagdeep R. Doshi as a deposit and not as a loan. Mr. Kamdar, the learned counsel for the respondents submits that contracts notes for the transactions were also issued in the name of the petitioners. Bye-law No. 226(a) reads as follows :
"All contracts made by a member for or with a non-member for the purchase or sale of securities in which dealings are permitted on the Exchange shall in all cases be deemed made subject to the Rules, Bye-laws, Regulations and Usage of the Exchange which shall be a part of the terms and conditions of all such contracts and they shall be subject to the exercise by the Governing Board and the President of the powers with respect thereto vested in it or him by the Rules, Bye-laws and Regulations of the Exchange."
7. Thus, all transactions for purchase and sale of securities by a member with a non-member becomes subject to the Rules, Bye-laws and Regulations of the Mumbai Stock Exchange. The regulation provides for an arbitration agreement vide Bye-law No. 248(a), which reads as follows :
"All claims (whether admitted or not) difference and disputes between a member and a non-members (the terms non-member and non-members shall include a remisler, authorised clerk, a sub-broker who is registered with SEBI as affiliated with that member or employee or any other person with whom the member shares brokerage) arising out of or in relation to dealings, transactions and contracts made subject to the Rules, Bye-laws and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their construction, fulfilment or validity or in relation to the rights, obligations and liabilities of remislers, authorised clerks, sub-brokers, constituents, employees or any other persons with whom the member shares brokerage in relation to such dealings, transactions and contracts shall be referred to and decided by arbitration as provided in the Rules, Bye-laws and Regulations of the Exchange."
It cannot, therefore, be said that there was no arbitration agreement between the petitioners and the respondents.
8. In view of the above, the petition is dismissed with no order as to costs.