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3. The brief facts as revealed from the record are;

A) Petitioner is a company registered as an intermediary of commodity markets having membership of Multi Commodity Exchange of India Limited (MCX) and National Commodity & Derivative Exchange Limited (NCDEX).

B) Respondent Praveen Ranjan Pandey, his father Bimalesh Kumar Pandey and brother Dhananjay Jitesh Pandey opened separate Arbtn.No.11401/2016, 11402/2016 & 11404/2016 trading accounts with the petitioner after executing membership client agreements and KYCs. On opening of the accounts, welcome letters were sent to the respondents on their registered email IDs and it was conveyed that they would be receiving trade confirmation call and SMS for every day transactions carried out by them in their respective trading accounts. It was further conveyed that respondents would be getting ledger balance and electronic contact notes on their respective email IDs. C) Dispute erupted between the petitioner and respondents in respect of trade transactions made from the trading accounts. Respondents wrote an email at the helpdesk of the petitioner stating that they never received trade confirmation calls in respect of purported transactions carried out from their accounts. Over this issue, parties exchanged emails but the matter was not resolved. Respondents lodged a complaint with MCX alleging that the transactions from their accounts were done by the Relationship Manager of the petitioner without their approval. MCX sought reply from the petitioner and conciliation meeting was held but the parties failed to arrive at any settlement. Respondents invoked the arbitration clause by moving separate applications with MCX for Arbtn.No.11401/2016, 11402/2016 & 11404/2016 the appointment of Arbitrator. On the applications of the respondents, Ms. Laxmi Swaminathan was appointed as the Arbitrator and intimation was given to the parties. D) Notices of statements of claim filed by the respondents were issued to the petitioner with directions to submit reply and relevant documents. In response, petitioner submitted the statement of defence. Opportunity was given to the parties to produce evidence. Respondents produced transcripts of a DVD containing the recorded conversation between Santosh Jha and Bimlesh Kumar Pandey.

16. At the time of opening of the trading accounts, respondents signed the Membership Client Agreements (MCAs)/KYCs and welcome letters were issued to them. The Member Client Agreements contained a Risk Disclosure Agreement. The parties became bound by the contractual obligations under the Membership Client Agreements, terms of welcome letters and KYCs. It was mentioned in the Risk Disclosure Document that respondent should undertake the trade transactions only after understanding the nature of contractual relations. It was mentioned in this document that investment in commodity market carries a high element of risk. Further, it was stated that there would be no guaranteed profits for the trading done from the trading accounts. Arbtn.No.11401/2016, 11402/2016 & 11404/2016 The various clauses of this document conveyed in unequivocal terms that the trading in commodity market involves risk and might result in financial losses.

17. On opening of the trading accounts, petitioner sent a welcome letters to the respondents intimating them that Santosh Kumar Jha has been appointed as their dedicated Relationship Manager and his phone number was also provided. The welcome letters and MCA contained detailed terms & conditions. It was categorically specified in clause-14 of the welcome note that an electronic generated contract note shall be sent to the respondents within 24 hours of execution of trade on their registered email address. In this clause, respondents were urged to check the contract note minutely and report for any discrepancy within 24 hours of the receipt of contract note. Clause-15 of the welcome note specified that the orders placed by the respondents are not recorded and in case, any contract note is not as per the order, the respondents should deny the same within 24 hours and in case, they failed to deny the contract note, same shall be deemed to be ratified. It was mentioned in clause-17 of the welcome note that all investment in the market/exchange are subject to market risk and therefore, respondents should take due care before executing trade. It was mentioned in Arbtn.No.11401/2016, 11402/2016 & 11404/2016 clause-18 of the welcome note that neither petitioner nor its employees were in the business of portfolio management/advisory and therefore, no investment in the securities market could be guaranteed. It was advised that respondents should wisely take decisions before executing trade and thoroughly check contract notes, ledge accounts on regular basis. It was specified in clause-19 of the welcome note that petitioner does not deal in any other products like guaranteed return and in case, any action is done beyond the terms of KYC, the company shall not be held responsible. The petitioner filed Membership Client Agreements, Risk Disclosure Documents and KYCs along with the statements of defence. These documents were placed on record in the arbitration proceedings. Petitioner also placed on record the welcome letters and mentioned that the same were forwarded on the registered emails of respondents and the same were also sent through courier.

20. Indeed, this court cannot sit in appeal and reverse the finding given by the Arbitrator so long as the finding is based on some evidence. In the present matter, petitioner has submitted that Arbitrator relied on the transcripts of a DVD without insisting on a certificate under Section 65B of the Indian Evidence Act. Counsel for the petitioner has vehemently argued that Arbitrator committed a serious error by accepting in evidence, the transcripts of the DVD without insisting on a certificate under Section 65B of the Indian Evidence Act. He has contended that in view of this error, the award deserves to be set-aside. I am not impressed with the said line of argument. It has been held in the matter of "Millellium School Vs Pawan Dawar" O.M.P(COMM.) 590/2020 decided by the High Court of Delhi on 10.05.2022 that Section 65B of Indian Evidence Act is not applicable to arbitral Arbtn.No.11401/2016, 11402/2016 & 11404/2016 proceedings. The court observed in the matter that by virtue of Section 1 of the Indian Evidence Act, it does not apply to arbitration. It was held by the High Court that although, the principle of Evidence Act are usually applied in arbitral proceedings, sensu stricto, the said Act is not applicable in arbitral proceedings. In view of the observation made by the High Court of Delhi, the argument that the Arbitrator could not have relied on the transcripts of DVD needs to be rejected. However, even if these transcripts are taken into account, still, the petitioner cannot be made liable in view of the various disclosures made in the KYC, Risk Disclosure Document and welcome note.