Delhi District Court
Delhi Branch Office At vs Arun Kumar on 18 August, 2020
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
OMP (COMM) No.102/2019
M/s Kaynet Finance Limited
A Company under Companies Act, 1975
having its Corporate Office at 633,
Pulachi Wadi, 2nd Floor, Abhinandan Plaza,
Deccan Gymkhana, Pune: 411004.
Delhi Branch Office at:-
Ambadeep Building,
1104-1107, 11th Floor,
14, KG Marg, New Delhi
Through its AR Mr. Manoj Tikoo .....Petitioner
vs.
1. Arun Kumar
S/o Sri Kedar Nath
Sector-8, House No. 890,
R.K Puram,
New Delhi 110022
2. Mr. Ram Prakash
Presiding Arbitrator
Appellate Arbitral Tribunal
National Stock Exchange of India Limited
Jeevan Vihar Building,
Sansad Marg, New Delhi.
3. Mr. Narender Kumar Singh
Member Arbitrator
Appellate Arbitral Tribunal
National Stock Exchange of India Limited
Jeevan Vihar Building,
Sansad Marg, New Delhi.
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4. Mr. Ashok Kumar Jalan
Member Arbitrator
Appellate Arbitral Tribunal
National Stock Exchange of India Limited
Jeevan Vihar Building,
Sansad Marg, New Delhi.
....Respondents
Date of Institution : 06/06/2019
Arguments concluded on : 29/07/2020
Decided on : 18/08/2020
Appearances : Sh. Anand Mishra, Ld. Counsel for petitioner.
Sh. Dharmendra Kumar, Ld. Counsel for the
respondent no. 1.
JUDGMENT
1. Petitioner has filed the present petition under Section 34 of The Arbitration and Conciliation Act, 1996 against the Appellate Arbitral Award dated 02/05/2019. The petitioner is a company registered under the Companies Act, 1956 and member of National Stock Exchange of India Ltd. (NSE) and Bombay Stock Exchange Ltd. (BSE), pursuant to which petitioner is entitled to purchase, sell shares and deal in derivative instruments on behalf of its clients.
2. As per pleadings in petition, clientele relationship of OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 2 of 44 respondent no. 1 was mapped by Delhi Branch of petitioner and client code 102A54 was allotted to respondent no. 1 after his due execution of the KYC, Member-Client Agreement, Risk Disclosure Documents (RDD), which clearly stated the risk associated while dealing in capital market and rights/obligations of the member and the constituent. Even as per the case of respondent no. 1, he was trading previously with one ILFS and in year 2016, he transferred his account to petitioner, which established of experience of respondent no. 1 in trading of stocks and as a reasonable person of ordinary prudence could be assumed to know that investments in stocks/capital market did not have guaranteed returns. The KYC was executed between parties on 05/02/2016, which had arbitration clause in terms of bye-laws of NSE/SEBI read with Section 2(4) of The Arbitration and Conciliation Act. In terms of above said KYC, which governed the contract between petitioner and respondent no. 1, respondent no. 1 opted to receive the Electronic Contract Notes (ECN) at his e-mail id. Further, respondent no. 1 gave his mobile phone number in KYC as his registered mode of communication. Hence, any communication of said e-mail and phone amounted to valid communication. In terms of clause 13 of KYC Contract, it was OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 3 of 44 agreed that client will give any order either in writing or in such other form/manner, as may be mutually agreed between company and client. As a part of KYC, respondent no. 1 had executed Power of Attorney in favour of petitioner towards adjustment of securities in DEMAT account without having separate individual instructions every time. Respondent no. 1 signed receipt for understanding all rules and delivery of KYC to him on 09/02/2016. Only on 22/03/2018 SEBI came with circular with effect from 01/04/2018 that all order placing calls placed by clients shall be mandatorily recorded. As an organization's internal compliance policy, petitioner sent a detailed Welcome Letter to each client, which mentions in detail his key KYC details along with necessary precautions to be taken by the client while dealing through petitioner in Securities/Derivative market. In terms thereof, it was agreed between petitioner and respondent no. 1 that Electronic Contract Notes (ECN) shall be sent on registered e-mail id of client within 24 hours of execution of trade, which shall be in terms of order placed by respondent no. 1 on telephone lines. In this respect, Clause 23 of Welcome Letter was explicit and clear that contract note sent to respondent no. 1 shall be in terms of order placed by him on OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 4 of 44 telephonic lines, which are not recorded. It was informed to respondent no. 1 by petitioner at the time of account opening that the organization does not involve itself into the business of Portfolio Management Services and do not guarantee any returns on the funds invested through it. The same was informed through recorded Welcome Call and Welcome Letter, which were dispatched at registered correspondence address of respondent no. 1 and registered e-mail id. Apart from sending contract notes on e-mail in terms of order placement calls of client, as internal compliance SMS, IVR calls and post trade confirmation calls were done. These post trade confirmation calls were recorded from recorded lines at dealing desk. The logs of all SMSs sent on registered mobile, recorded trade post confirmation calls, logs of delivery of daily contract notes and periodical ledger on registered e-mail were furnished by petitioner before arbitral tribunal.
3. It is also the case of petitioner that some of the calls even of pre-trade point were done at recorded calls lines maintained at dealing desk counters, which were recorded. Calls made at lines not under recording system or on mobile of relationship managers OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 5 of 44 could not be recorded. Daily post trade confirmation calls from recorded lines and IVR calls were maintained by petitioner apart from logs of SMS and e-mails. Order trade confirmation calls were done as per internal compliance of petitioner organization not mandated under contract or bye-laws but for benefit of its clients. The said calls were from recorded lines and were post trade confirmations. Whenever there was margin shortfall in the account of respondent no. 1, as per internal compliance margin shortfall confirmation calls were done. Since respondent no. 1 was also indulging in high trading volume in stocks, petitioner sent regular e- mails at his registered e-mail id as part of internal compliance.
4. Respondent no.1 alleged cheating, criminal breach of trust, criminal misappropriation by doing unauthorized trading of his shares and causing losses to him against the petitioner and claimed Rs 14,00,000/- from petitioner for execution of trade without authorization and Rs 10,00,000/- for having caused mental agony and for cheating and forgery. In his detailed submissions, respondent no. 1 has stated that :-
(a) He opened an account with Kaynet Finance Ltd. by transferring his account from ILFS in January, 2016. He also OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 6 of 44 transferred his stock valuing about Rs 7,00,000/- (Rupees Seven Lac) to Kaynet Finance Ltd. at the time of opening his account.
(b) Initially, for a few months, he received transfer of a total sum of Rs 78,000/- (Rupees Seventy Eight Thousand) in his account from the petitioner. His presumption is that they did it to win his trust and faith, as they had promised an assured return of Rs 25,000/- (Rupees Twenty Five Thousand) per month apart from other benefits in trading. He did not receive any transfer in his account thereafter despite his reminders about their assurance. The petitioner, however kept saying repeatedly that they are performing well with his shares and that he would benefit a lot, and that his shares were in safe hands.
(c) The Petitioner did trades in option after August, 2016 without his authorization. He gave them a cheque of Rs 1,20,000/- (Rupees One Lac Twenty Thousand) on 16/11/2017, drawn upon Punjab and Sind Bank for purchasing shares of Grasim Industries, but they did not purchase the said shares, instead of, they deposited it in their account and utilized as per their convenience.
(d) The Petitioner caused a loss of around Rs 10,00,000/-
(Rupees Ten Lac) to the Respondent No. 1 in his option segment on 18th and 25th January, 2018 and squared off his 800 shares of Reliance Industries Ltd., 176 shares of Tata OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 7 of 44 Steel Ltd., 200 shares of SBI, 150 shares of Motherson Sumi, 100 shares of ICICI Prudential, 198 shares of Moil, 250 shares of JSW Energy etc., without his consent or without intimation to him. They also sold his 75 HDFC Bank shares @ 1189/- per share (total amount Rs 89,175/-) and did not credit the amount in his account, and thus, this amount also got lost to him.
(e) It was also asserted by respondent no. 1 that he never received welcome letter/KYC, while confirming that his e- mail id, mobile number as given by him to the petitioner are correct, he is not being savvy in computer operation, never opened it nor did he see SMSs in his mobile. He never received documents/contract notes physically, and had no occasion to see them in soft form.
5. In April-May 2018, respondent no. 1 wrote complaint to SEBI that petitioner had done trades in his account since August, 2016 without asking him. It was alleged that trades were done without intimating him. Respondent no. 1 sought arbitration on his dispute of losses to him alleged by him to be of Rs 14,00,000/- (trades without authorization) and Rs 10,00,000/- for mental agony and pain. The IGRP proceedings were held in the matter on 25/05/2018 but matter could not be resolved.
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6. The matter was sent for arbitration and the arbitration was conducted before Ld. Sole Arbitrator Sh. Sarweshwar Jha in the arbitration matter no. NSE/ARBN/CM/D-0022/2018 under By-laws, rules and regulations of National Stock Exchange of India Limited. The said arbitration proceeding culminated into passing of the award dated 04/01/2019 (though the date in the original award has been wrongly mentioned as 04/01/2018, due to typographical error, instead of 04/01/2019). In terms of said award, Ld. Sole Arbitrator directed the petitioner to pay Rs 11.51 lacs to the respondent no. 1.
7. Feeling aggrieved, the petitioner filed an Appeal A.M. No. CM/D-0022/2018 under By Laws, rules and regulations of National Stock Exchange of India Limited before panel of Arbitrators comprising of Retired Judge Sh. Ram Prakash Presiding Arbitrator; Sh. Narender Kumar Singh and Sh. Ashok Kumar Jalan, Member Arbitrators. In majority view, vide Appellate Award dated 02/05/2019, Retired Judge Sh. Ram Prakash, Presiding Arbitrator and Sh. Narender Kumar Singh, Member Arbitrator dismissed the appeal, where as in minority view, the third Arbitrator Sh. Ashok Kumar Jalan set aside the impugned award of Ld. Sole Arbitrator OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 9 of 44 dated 04/01/2019 (date wrongly mentioned as 04/01/2018).
8. The petitioner being aggrieved of the aforesaid Appellate Award dated 02/05/2019 has filed the present petition on the following grounds:-
(i) The Arbitral Tribunal is creation of contract and it cannot go beyond the legal and contractual mandates/ duties of the parties. The Arbitral Award is finding no mention of petitioner having neglected/breached any contractual or legal duties;
(ii) No unauthorized trading was established since Electronic Contract Notes (ECN) were sent for transactions as mandated under contract and respondent no. 1 ratified every act of petitioner;
(iii) There was no requirement to prove any pre-trade order and consent for all pre-trades were implied by ratification of Electronic Contract Notes and contents of post trade verification calls with SMS alerts;
(iv) Respondent no. 2 and 3 in Appellate Arbitral Award committed misconduct in dismissing the appeal only dealing with application for additional evidence without even looking into evidence submitted before Sole Arbitrator;
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(v) Appeal against arbitration award was dismissed ignoring that single arbitrator passed the award on alleged admission, which even on plain reading could not be regarded as admission;
(vi) It was misconduct on the part of respondent no. 2 and 3 in ignoring wrong observation of Sole Arbitrator that contract notes/ledger statements should have been supplied physically in contravention to receipt of said e-mail as agreed in contract;
(vii) The arbitral appeal was wrongly dismissed and misconduct was committed by even not striking out conjectures and surmises of Sole Arbitrator;
(viii) Finding of Sole Arbitrator that petitioner had worked out payment in dispute of Rs 11.51 lacs and had accepted the said claim, though being absurd was not interfered in the appeal by respondent no. 2 and 3.
(ix) The liability of petitioner was fastened without giving finding towards breach of any contract, bye-laws or law;
(x) Findings of the Arbitrators was against basic law of evidence, without even looking into evidence and purely on their own imaginations;
(xi) Respondent no. 2 and 3 in appellate arbitral tribunal in its findings substituted itself as court holding that it could OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 11 of 44 interfere only in the case of misconduct;
(xii) While putting oral arguments, respondent no. 1 changed his position, which was reduced in written arguments that he had not placed any order from 18/12/2017 to 18/01/2018 in backdrop of his previous position of denying all trades of two years. Because of that call records pertaining to said period was filed as additional documents by petitioner;
(xiii) Respondent no. 4 correctly dismissed the claim of respondent no. 1, allowing the appeal observing that claim of respondent became non-issue as petitioner had complied with all contractual and regulatory compliances.
(xiv) Arbitrators committed misconduct in not treating communication of registered e-mail of respondent no. 1 as valid communication.
9. The matter has been contested on behalf of respondent no. 1 and preliminary objections have been filed on record. It is asserted therein that the petition filed by the petitioner under Section 34 of The Arbitration and Conciliation Act, 1996 is not maintainable and deserves to be dismissed as petitioner has failed to point out any flaw in the impugned award dated 02/05/2019 as well as the award dated 04/01/2019 respectively, passed by the Panel of Ld Arbitrators and Ld. Sole Arbitrator, which are quite reasoned awards OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 12 of 44 and the petitioner has merely challenged the said awards on the basis of surmises and conjectures in order to deny of legitimate monetary right of respondent no.1. Also has been submitted that false and baseless allegations of misconduct against the arbitrators have been leveled. Also was stated that Ld. Sole Arbitrator and Ld. Panel of Arbitrators were having special and expert knowledge about shares and trading, stock market rules, SEBI rules and guidelines etc and having experience of dealing with such matters. Moreover these arbitrators are on the panel of Arbitrators of NSE and are having vast experience in dealing in such matters. Thus the awards are fully reasoned and justified and not warranting any interference. Also has been asserted that in view of Clause 25 of Rights and Obligations of Stock Brokers, Sub Brokers and clients as prescribed by SEBI and Stock Exchange, filed by the petitioner, the present petition is not maintainable and deserves dismissal since said clause embodies that the stock broker shall ensure faster settlement of any arbitration proceedings arising out of the transactions entered into between him vis-a-vis the client and he shall be liable to implement the arbitration awards made in such proceedings. Also had been asserted that there is also a provision OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 13 of 44 of appeal within the stock exchange, if either party is not satisfied with the Arbitration Award. Herein since petitioner has already exhausted the appeal within the stock exchange, the petitioner was bound to implement the arbitration awards, as per Clause 45 of Law and Jurisdiction, filed by the petitioner. Also has been asserted that petition is also not maintainable and deserves to be dismissed as the additional pleas have been taken by the petitioner herein, which were not raised before the Ld. Sole Arbitrator or before panel of Ld. Arbitrators. The petitioner cannot be permitted to raise additional grounds before every higher forum. Also has been asserted that petitioner has based his petition on false and fabricated documents, which were not filed by the petitioner before Ld. Sole Arbitrator or before panel of Ld. Arbitrators. The conduct of the petitioner must be judged having regard to the entirety of the pleadings and evidence produced before every forum. Also has been asserted that petitioner has wrongly alleged misconduct on Ld. Arbitrators who had passed the orders against it and in favour of respondent no. 1, whereas petitioner itself has committed the acts of misconduct and unfair trade practice apart from cheating, fraud and breach of trust with respondent no. 1 and grasped his hard OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 14 of 44 earned money through unfair means. It was asserted that infact petitioner never supplied the copy of Welcome Letter containing alleged terms and conditions to respondent no. 1, though it was so asserted by petitioner but petitioner failed to prove it before Ld. Sole Arbitrator and before panel of Ld. Arbitrators. The petition has been filed to harass the senior citizen, respondent no. 1, aged 69 years, who invested his hard earned money of his life in the shares transferred to the petitioner and respondent no. 1 had made the petitioner the custodian of his shares as per the promise and assurance of the officials of petitioner that his shares are in safe hands and he will be provided guaranteed return of Rs 25,000/- per month. Initially the petitioner had provided amount of Rs 78,000/- in four months by transferring said amount to his savings bank account but later petitioner falsely alleged that these amounts are payout, demanded by the respondent no. 1 but no document was placed on record by the petitioner to show any demand of those alleged amounts by respondent no. 1 as payout. Later on petitioner stopped providing the said amount and on questioning, had replied to respondent no. 1 that he need not to worry and promised amount will be transferred later on collectively, which they never OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 15 of 44 did. It was also asserted that petitioner had only obtained signatures of respondent no. 1 on blank forms without disclosing its contents and supplying copy thereof and explaining any terms and conditions, whereas even the forms were not filled in the presence of respondent no. 1 and the petitioner later on filled the forms as per its own convenience with the intention to cheat and defraud respondent no.1. Also is asserted that he had only a DEMAT account with ILFS and had never done trading as alleged by the petitioner. Moreover, respondent no.1 had agreed to transfer his account with the petitioner only on the assurance of the RM of the petitioner that they will give guaranteed return of Rs 25,000/- per month to respondent no. 1, which they initially did and had paid a sum of Rs 78,000/- to the respondent no. 1. It was asserted that respondent no. 1 was never explained about any terms of KYC nor was even supplied the copy of KYC by the petitioner and for the first time the copy of KYC was received by respondent no. 1 in the proceedings before the IGRP when respondent no. 1 had filed a complaint against the petitioner. It was asserted that as admitted by the petitioner, respondent no. 1 was to place order in writing but infact when respondent no. 1 had not placed any order in writing, OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 16 of 44 why did the petitioner trade in the name of respondent no.1 and as to why the petitioner accepted any order which was not in writing. These acts clearly established the malafide intention and conduct of the petitioner as their intention was to cheat the respondent no. 1 from the very beginning. Respondent no. 1 also submitted that he was admitted in AIIMS Hospital from 07/02/2016 till 11/02/2016 as he suffered cardiac arrest, so there was no reason or occasion for him to sign the alleged receipt of understanding all rules and delivery of KYC on 09/02/2016. Allegedly, because of aforesaid, petitioner made false statements for supporting its fabricated documents. It was asserted by respondent no. 1 that he had signed only blank forms as asked by the Relationship Manager of the petitioner on 04/02/2016 on the assurance that he will be paid Rs 25,000/- per month as guaranteed return and even terms and conditions were not explained to him nor he was supplied copy of any alleged documents, so he had no occasion to go through the same and understand its terms and conditions. Petitioner failed to produce any cogent evidence to prove that the alleged documents were delivered to respondent no. 1. Respondent no. 1 prayed for dismissal of the petition with cost for having dragged him, senior OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 17 of 44 citizen aged 69 years into avoidable and unwanted litigatory exercises.
10. I have heard Sh. Anand Mishra, Ld. Counsel for petitioner and Sh. Dharmendra Kumar, Ld. Counsel for respondent no. 1 via video conference hearings and perused their relied upon precedents.
11. Ld. Counsel for petitioner argued in terms of the pleadings in the petition, submitting that without application of mind, Ld. Sole Arbitrator passed the award holding that petitioner admitted the claim to the extent of Rs 11.51 lacs, whereas no such admission was ever made by the petitioner therein as petitioner had only stated therein that the disputed amount was Rs 11.51 lacs and not claimed sum of Rs 24 lacs. It was also argued that the reasons for reaching the conclusion by the Ld. Arbitrators need to be intelligible and should be connected with the case. Ld. counsel for the petitioner argued that the interference is sought in the matter by this petition as finding of ld. Sole Arbitrator upheld by majority of Ld. Appellate Arbitrators regarding admitted liability of Rs 11.51 lacs was against basic law on admissions, wherein admissions have to OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 18 of 44 be clear, unambiguous and explicit. The word payment in dispute being Rs 11.51 lacs and claim be dismissed in reply of the petitioner cannot be treated as admission of liability. The third Arbitrator had passed dissenting award, holding that Sole Arbitrator failed in appreciating the facts of the case and evidences and the reasoning of third Appellate Arbitrator was appropriate. Ld. Counsel for the petitioner prayed for setting aside of award against the petitioner.
12. Ld. Counsel for respondent no. 1 argued in terms of the filed reply, stating that after this court had stayed the impugned award subject to depositing 50% of the award amount, the petitioner did not deposit the said amount, after which National Stock Exchange has already paid the award amount to the respondent no. 1, senior citizen aged 70 years. It was argued that respondent no.1 had made the petitioner the custodian of his shares as per the promise and assurance of the officials of petitioner that his shares are in safe hands and he will be provided guaranteed return of Rs 25,000/- per month. Initially amount of Rs 78,000/- in four months was provided by petitioner to respondent no. 1 by transferring it to the savings bank account of respondent no. 1 but during arbitral OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 19 of 44 proceedings, petitioner falsely alleged that these amounts to be payout, demanded by respondent no. 1, for which there was no document nor was any document placed on record by the petitioner. It was argued that the petitioner has filed partial and different records in all the proceedings i.e., before Ld. Sole Arbitrator; before Panel of Ld. Appellate Arbitrators and before this Court. It was argued that the petitioner concealed the relevant records from Ld. Sole Arbitrator as well as from the Panel of Ld. Arbitrators and these facts were very well enquired by the Ld. Arbitrators during the respective proceedings conducted. It was argued that the petitioner had relied upon the alleged phone recordings and alleged messages which have been denied by the respondent no. 1 being fabricated documents and all the said documents are electronic documents, which have been manufactured by the petitioner as per their convenience to create a false defence. Neither the said documents were certified nor supported by any certificate under Section 65B of Indian Evidence Act, so they cannot be relied upon nor believed to be true. Awards in question were passed by Ld. Arbitrators having special and expert knowledge about shares and trading, stock market rules, SEBI rules and guidelines etc. and OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 20 of 44 they also have experience of dealing with such matters and they are on the panel of arbitrators of NSE having vast experience in dealing with such matters. The impugned awards are fully reasoned and justified not warranting any interference. Also was argued that each and every piece of evidence was duly appreciated in the proceedings before Ld. Sole Arbitrator and panel of Ld. Arbitrators and findings were given by the Ld. Arbitrators based on appreciation of facts and law. It was argued that even the panel of majority Arbitrators in its award in para no. 5 and 6 have observed that the petitioner had not produced the relevant record and withheld the positive evidence. It was argued that when respondent no. 1 was admitted in AIIMS Hospital from 07/02/2016 till 11/02/2016, after cardiac arrest and undergone surgery, how could he receive on 09/02/2016 the copy of KYC against signatures, which facts were never proved before the Ld. Arbitrators nor it was proved that Welcome Letter and KYC Rules & Regulations were supplied by petitioner to respondent no. 1. It was argued that due to conduct of petitioner, NSE in February 2020 had declared the petitioner as a defaulter and expelled it from its membership. It was argued that finding of facts arrived at by the Ld. Arbitrator as per OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 21 of 44 record and evidence could not have been challenged under Section 34 of The Arbitration and Conciliation Act, 1996. Ld. counsel for respondent no. 1 prayed for dismissal of the petition. It was also argued that Ld. Third Arbitrator of the Panel of Arbitrators had committed the misconduct, mentioning in his dissenting award of the fact that verbally the petitioner (appellant therein) was required to file certificate under Section 65B of Evidence Act in support of voice data submitted and copies of contract notes for transaction dates under dispute, which was per contra to the recorded arbitration proceedings. It was argued that petitioner took time for fabricating documents and filed the documents, may be under private oral instructions of Ld. dissenting Arbitrator, which was highly relied upon by said Ld. Arbitrator, committed misconduct by acting in a biased manner, presuming the averment of petitioner as gospel truth without even giving respondent no. 1 any chance to submit about the additional documents, so placed on record with an application for additional evidence before the panel of Ld. Arbitrators after hearing was concluded and the matter was reserved by them.
13. Ld. Counsel for petitioner relied upon the following OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 22 of 44 precedents:
1. Bhagat Ram Sahni & Sons vs Delhi State Industrial Development Corporation Ltd., MANU/DE/1268/1998;
2. Jupitor Rubber Pvt Ltd vs Union of India, MANU/DE/1150/2020;
3. K.R. Mohan Reddy vs NET Work Inc. rep. Tr. M.D, MANU/SC/7978/2007;
4. Sharma and Associates Contractors (P) Ltd. Vs Progressive Constructions Ltd., MANU/SC/0161/2017;
5. M/s Sukumar Chand Jain and Ors. vs Delhi Development Authority, MANU/DE/3054/2009 and
6. Union of India (UOI) vs K.V. Lakshman & Ors, MANU/SC/0714/2016.
14. Ld. Counsel for respondent no. 1 relied upon the following precedents:
1. Andisamy Chettiar vs A. Subburaj Chettiar, 2015 LAW PACK (SC) 56614;
2. Municipal Corporation of Delhi vs M/s Paramjeet Singh Narula, 2020 LAW PACK (Del.)75970 and
3. Polyflor Limited vs Sh. A.N. Goenka & Ors, 2016 LAW PACK (Del.) 59524.
15. I have examined the awards (dated 04/01/2019 and 02/05/2019) in question, documents and pleadings of the parties OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 23 of 44 and gone through the written submissions placed on record on behalf of petitioner as well as respondent no. 1.
16. The scope of inquiry in Section 34 proceedings is restricted to consideration whether any one of the grounds mentioned in Section 34(2) exists for setting-aside the award.
17. Section 34 (1) and (2) of The Arbitration and Conciliation Act, 1996 read as under:
"34. Application for setting aside arbitral award-
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub- section (2) and sub-section (3).
(2) An arbitral award may be set aside by the court only if-
(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 OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 24 of 44 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 the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 25 of 44 Explanation 1 - For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-- (i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.-- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute."
18. Normally, the general principles are that Arbitrator is a Judge of the choice of the parties and his decision, unless there is an error apparent on the face of the award which makes it unsustainable, is not to be set aside even by the Court as a Court of law could come to a different conclusion on the same facts. The Court cannot reappraise the evidence and it is not open to the Court to sit in appeal over the conclusion of the Arbitrator. It is not open to the Court to set aside a finding of fact arrived at by the Arbitrator and only grounds on which the award can be cancelled are those mentioned in the Arbitration Act. Where the Arbitrator assigns OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 26 of 44 cogent grounds and sufficient reasons and no error of law or misconduct is cited, the award will not call for interference by the Court in exercise of the power vested in it. Where the Arbitrator is a qualified technical person and expert, who is competent to make assessment by taking into consideration the technical aspects of the matter, the Court would generally not interfere with the award passed by the Arbitrator.
19. In the judgment titled as G. Ramchandra Reddy v. Union of India, (2009) 6 SCC 414, Apex court asserted that Courts should not normally interfere with the award of an Arbitrator, unless there was a gross error apparent on the face of the record.
20. In M/s Sudarsan Trading Co. v. Government of Kerela & Anr. AIR1989 SC 890, the observations of the Supreme Court have been that Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the Arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid or damages liable to be sustained, was a decision within the competency of the OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 27 of 44 Arbitrator in this case. By purporting to construe the contract the Court could not take upon itself the burden of saying that this was contrary to the contract and, as such, beyond jurisdiction.
21. In the case Oil & Natural Gas Corporation Ltd v. Saw Pipes Ltd. dated 17.04.2003 in Appeal (Civil) 7419/2001, Supreme Court considered the ambit and scope of Court's jurisdiction u/s 34 of the Arbitration and Conciliation Act, 1996. The Court discussed the matter of arbitral procedure in terms of section 24, section 28 and section 31 of the Arbitration and Conciliation Act and held:
"In our view, reading Section 34 conjointly with other provisions of the Act, it appears that the legislative intent could not be that if the award is in contravention of the provisions of the Act, still however, it couldn't be set aside by the Court. If it is held that such award could not be interfered, it would be contrary to basic concept of justice. If the arbitral tribunal has not followed the mandatory procedure prescribed under the Act, it would mean that it has acted beyond its jurisdiction and thereby the award would be patently illegal which could be set aside under Section 34".
22. The ground of public policy has also been discussed in detail and the lordships held as follows:
"Therefore, in our view, the phrase 'Public Policy of India' used in Section 34 in context is OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 28 of 44 required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public 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 face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/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 Renusagar's case (supra), it is required to be held that the award could be set aside if it is patently illegal. Result would be - 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.
Illegality 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."
The conclusion has been drawn in the following manner:
"CONCLUSIONS:-
In the result, it is held that:-
OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 29 of 44 A. (1) The Court can set aside the arbitral award under Section 34(2) of the Act if 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;
2) The Court may set aside the award:-
(i) (a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties,
(b) failing such agreement, the composition of the arbitral tribunal was not in accordance with Part-I of the Act.
(ii) if the arbitral procedure was not in accordance with:-
(a) the agreement of the parties, or
(b) failing such agreement, the arbitral procedure was not in accordance with Part-I of the Act.
OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 30 of 44 However, exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part-I of the Act from which parties cannot derogate.
(c) If the award passed by the arbitral tribunal is in contravention of provisions of the Act or any other substantive law governing the parties or is against the terms of the contract.
(3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to:-
(a) fundamental policy of Indian law;
(b) the interest of India; or
(c) justice or morality, or
(d) if it is patently illegal.
(4) It could be challenged:-
(a) as provided under Section 13(5); and
(b) Section 16(6) of the Act."
23. Coming to the case in hand, I have duly examined the grounds pleaded in the objection petition in the light of the facts and circumstances of the case, legal position and submissions of both the sides.
OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 31 of 44
24. In para 10 of the case of Municipal Corporation of Delhi vs M/s Paramjeet Singh Narula (supra), the pronouncements in the case of Associate Builders vs Delhi Development Authority, (2015) 3 SCC 49 were relied upon, which are as follows:
"xxxx xxxx xxxx
33. It must clearly be understood that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H.Securities (P) Ltd., [(2012) 1 SCC 594: (2012) 1 SCC (Civ) 342:
2011 LAWPACK(SC) 50505: 2011(6) R.A.J. 27], this Court held: (SCC pp. 601-02, para 21) "21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or reappreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 32 of 44 not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye-law 248, in a claim against a non-
member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of the second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.
xxxx xxxx xxxx"
25. In the case of K.R. Mohan Reddy vs Net Work Inc. rep. Tr. MD (supra), the appeal was against judgment and order allowing application of respondent under Order 41 Rule 27 of CPC. Initially the suit for recovery of money was filed by respondent against the appellant. The Trial Court dismissed the suit. Respondent preferred appeal as well as an application under Order 41 Rule 27 of CPC. The said application came up for consideration along with hearing of the appeal. In the application, respondent stated that books of accounts were misplaced and discovered few days prior to the filing of the said application while office was being shifted. It was held therein that the appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 33 of 44 before the Trial Court, but it will be different if the court itself require the evidence to do justice between the parties.
26. The afore elicited pronouncement in the case of K.R Mohan Reddy (supra) was also relied upon in the case of A.Andisamy Chettiar (supra).
27. In the case of Union of India vs K.V. Lakshman & Ors. (supra), the appellant filed a suit against respondents for declaration. The suit was dismissed as barred by limitation and appellant having failed to prove their title over suit land. With the first appeal, appellant filed an application under Order 41 Rule 27 of CPC inter alia stating additional documents were old, appellant came to know of them after decision of Trial Court and those were traced recently with great difficulty and were in nature of public documents. First appeal was dismissed in limine. It was held that appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full and fair independent consideration of the evidence at the appellate stage.
28. In the case of Bhagat Ram Sahni & Sons (supra), wherein OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 34 of 44 the award was passed under The Arbitration Act, 1940, it was held therein that award of claim was not provided under the contract and was beyond scope of arbitration and that part of award beyond jurisdiction was set aside. It was also held therein that parties cannot be allowed to depart from what they have agreed and an award rendered by going beyond the agreement is without jurisdiction.
29. In the case of Jupitor Rubber Pvt. Ltd (supra), it was held that, "It is the settled position of law that, an agreement between two entities, creating an enforceable obligation to do, or to refrain from doing, a particular thing, enforceable by law is terms as 'Contract'. Parties to a contract are bound by the terms to which they have agreed.
The binding force of a contract is based on the fact that it evinces a meeting of minds of two parties in good faith. A contract, once formed, does not contemplate a right of a party to reject it. Contracts that were mutually entered into between parties with the capacity to contract are binding obligations and may not be set aside due to the caprice of one party or the other unless a statute provides to the contrary."
It was held therein that the Court cannot substitute the wisdom or the plausible view of the Arbitrator.
OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 35 of 44
30. In the case of Sharma & Associates Contractors (P) Ltd. (supra), it was inter alia held that the scope for interference by the court with an award passed by the arbitrator is limited. Reliance was placed therein on the case of Indu Engineering & Textiles Ltd. Vs Delhi Development Authority, (2001) 5 SCC 691, wherein also was held as above.
31. In the case of Sukumar Chand Jain & Ors (supra), it was inter alia held by Hon'ble Mr. Justice Valmiki J. Mehta that losses necessarily in a civil case have to be proved on a balance of probabilities before allowing of a claim under this head by which huge monetary liability is sought to be imposed on the objector. It is settled law that the basic principles of Evidence Act, 1872 are applicable to arbitration proceedings and it cannot be contended that the Arbitrator can simply on the basis of tenuous or non- existence evidence which cannot amount to a discharge of onus in a civil case yet award monetary claim of losses and damages.
32. In the case of Polyflor Limited (supra), it was inter alia held that on a party satisfying the court that after exercise of due OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 36 of 44 diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just.
33. In the case of A. Andisamy Chettiar (supra), it was inter alia held that in terms of Order 41 Rule 27 of CPC, the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations viz., (a) when the trial court has refused to admit evidence which ought to have been admitted, or (b) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (c) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. Also was held therein that it is against the spirit of the CPC to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned herein above. OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 37 of 44
34. The Sole Arbitrator as well as Appellate Arbitrators, who gave majority decision, in their findings held that the whole record of dealings, inter se the petitioner and respondent no. 1, was in the custody of petitioner and the main dispute was regarding the transactions done on 28/12/2017, 18/01/2018 and 25/01/2018. In the course of hearings before Ld. Arbitrators, the petitioner did not produce the relevant order placement calls of transactions in dispute, allegedly made by respondent no. 1 to petitioner, for which it was the reply of petitioner that it was made mandatory only with effect from 01/04/2018. It is the case of respondent no. 1 that without placing of orders by him, the petitioner had transacted in his name, putting respondent no. 1 to wrongful loss, without his directions and consent and even respondent no.1 was never intimated of the transactions done on 28/12/2017, 18/01/2018 and 25/01/2018. The Ld. Arbitrators in majority appellate award opined that when the positive evidence was with the petitioner regarding the orders placed by respondent no. 1, there was no reason for petitioner to withheld it and instead of filing the record of orders placement calls made by respondent no. 1 on 28/12/2017, 18/01/2018 and 25/01/2018 before Ld. Sole Arbitrator, the petitioner OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 38 of 44 on the contrary filed other order placement calls details for number of other dates. After the hearing was concluded and reserved by panel of Arbitrators for adjudication of appeal, later on an application under Order 41 Rules 27 CPC was filed with excel sheet of recorded details, transcript of order calls, confirmation calls, contract notes and recording of CD with certificate under Section 65 B of Indian Evidence Act, which all documents have been termed by respondent no. 1 to be fudged, fabricated and forged later on by petitioner after conclusion of hearing in the appeal before the panel of Ld. Arbitrators to suit own case of petitioner without any existence of the fact of due diligence on the part of petitioner for making any endeavor for placing such documents at first opportune time before Ld. Sole Arbitrator or later before the panel of Ld. Arbitrators along with the appeal or before conclusion of the hearing and reserving of the matter therein. With respect to afore elicited payment of Rs 78,000/- by petitioner to respondent no.1, no cogent reasons could be assigned by the petitioner for having made such payment as payout on demand of respondent no.1 nor could they place on record nor prove of any demand on part of respondent no. 1 to petitioner for payment of said sum. The panel of OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 39 of 44 Arbitrators in the majority appellate award had also opined that when the position was squared off by the petitioner on 25/01/2018, the petitioner had not confirmed it to respondent no. 1 i.e., client and no reason could be assigned for it. It was also opined in the majority appellate award that there was a contractual agreement, with respect to which respondent no. 1 had alleged that trade was not executed by him and burden lies upon the petitioner to prove that they had executed the trade, as per the order of respondent no. 1 placed upon the petitioner, because best piece of evidence was in the custody of petitioner, the trade member and such best piece of evidence i.e., the order placement calls allegedly made by respondent no. 1 to the petitioner with respect to the disputed transactions of dates i.e., 28/12/2017, 18/01/2018 and 25/01/2018 were withheld by petitioner and not produced before Ld. Sole Arbitrator as well as before panel of Ld. Arbitrators before conclusion of hearing and reserving of the matter by the panel of Arbitrators for adjudication of appeal. The dissenting Appellate Arbitrator had took into consideration the additional documents, aforesaid filed by the petitioner after conclusion of the hearing and reserving of the matter by the panel of Arbitrators, at the back of OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 40 of 44 respondent no. 1, wherein respondent no. 1 was not given any hearing to put forth his contention about them in accordance with the principle of audi alteram partem and without permitting of the additional evidence by majority of panel of the arbitrators in appeal, Ld. Sole Arbitrator had took into consideration said additional documents/evidence put forth by the petitioner before it and had taken into consideration its probative value. True that petitioner never made any admission of claim of Rs 11.51 lacs. Fact remains that with respect to the claim of respondent no. 1 of Rs 14 lacs for losses of his shares (both squared off as well as sold and not credited to his account and those as were not purchased though payment was made for the purpose), the response of petitioner to said claim had been that there existed a dispute with respect to Rs 11.51 lacs with the respondent no. 1 who claimed Rs 14 lacs. It was a fact that disputed sum of Rs. 11.51 lacs put forth by petitioner with respect to Rs 14 lacs claim of respondent no. 1 had laid the foundation of the award of Ld. Sole Arbitrator to the tune of Rs. 11.51 lacs as respondent no. 1 had made vivid of non receipt of the terms of agreement vide Welcome Letter and KYC norms, whereas respondent no. 1 had been hospitalized on the day OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 41 of 44 attributed to physical delivery of KYC norms to him. The petitioner also did not prove before Ld. Arbitrators of having put respondent no. 1 to caution/alert about high volume of trades indulged in by him, huge financial losses incurred and resultant debit balance in account of respondent no.1, though it was bound under the relevant rules and regulations to protect the interest of investors.
35. The petitioner concealed the afore elicited relevant record with respect to the disputed transactions of dates i.e., 28/12/2017, 18/01/2018 and 25/01/2018 from Ld. Sole Arbitrator as well as from the panel of Arbitrators and these facts were very well inquired by the Ld. Arbitrators during respective proceedings in depth. None of the conditions precedent, in terms of law laid in case of A. Andisamy Chettiar (Supra), elicited above, existed for Ld. Arbitrators to allow additional documents in appeal after completion of hearings and reserving of appeal for decision. The petitioner relied upon the alleged phone recordings and SMSs, which were denied by the respondent no. 1, being the fabricated documents.
36. The awards dated 04/01/2019 and 02/05/2019 were passed by Ld. Sole Arbitrator and panel of Ld. Arbitrators, who were having OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 42 of 44 special and expert knowledge about the shares and trading, stock market rules, SEBI rules and guidelines etc. Moreover the said Ld. Arbitrators were stated to be on the panel of Arbitrators of NSC and were also having vast experience in dealing with such matters. Before Ld. Sole Arbitrator and panel of Ld. Arbitrators, each and every piece of admissible evidence was duly appreciated. Findings were given by Ld. Arbitrators based on appreciation of facts and law. The petitioner alleged of having obtained signatures of respondent no. 1 on 09/02/2016 for having understood of rules and regulations and delivery of KYC norms; whereas on 09/02/2016 for heart surgery, the respondent no. 1 was in AIIMS Hospital where he was admitted for the period from 07/02/2016 to 11/02/2016, with regard to which the discharge summary of respondent no. 1 of AIIMS Hospital was placed before Ld. Arbitrators.
37. The precedents relied upon by Ld. Counsel for petitioner, elicited herein above, embody facts and circumstances entirely different and distinguishable to the facts and circumstances of the case in hand and are in no way of any help to the petitioner for getting the impugned award set aside.
OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 43 of 44
38. The award is not against any public policy nor against the terms of contract of the parties. No premise/ground for interference is made out from the grounds raised by the petitioner to set aside the impugned award in terms of Section 34 of Arbitration and Conciliation Act, 1996.
39. For the foregoing reasons, the petition is hereby dismissed.
40. The parties are left to bear their own costs.
41. File be consigned to record room.
ANNOUNCED IN (GURVINDER PAL SINGH) OPEN COURT District Judge (Commercial Court)-02
on 18th August, 2020. Patiala House Court, New Delhi. OMP (Comm) No 102/2019 M/s Kaynet Finance Limited vs Arun Kumar & Ors Page No. 44 of 44