acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 408 OF 2009 Jigar Satish Jhaveri ...Petitioner.
Ventura Securities Ltd. ...Respondent.
Mr. Jaydev Trivedi, for the Petitioner.
Mr. S. Purohit, i/b Purohit & Co., for the Respondent.
CORAM : ANOOP V. MOHTA, J.
DATED : 18th November, 2009.
ORAL JUDGMENT :
1. The Petitioner has invoked section 34 of the Arbitration & Conciliation Act, 1996 (in short 'the Arbitration Act') and thereby, challenged the award dated 3.2.2009 passed by the Sole Arbitrator appointed under the byelaws, rules and regulations of the National Stock Exchange of India Ltd.(NSEIL).
2. The basic findings, given by the learned Arbitrator, including on counter claim while allowing the Respondent's claim are as under:
“5.3 If the Applicant had violated instructions of the Respondent on 21.1.2008, the Respondent should have raised dispute immediately thereafter. The Respondent has not denied receipt of contract notes
but only stated that he had not consented to receive them through electronic mail and he was receiving them 45 days after the trades were executed. If this were true, he should have raised the dispute by end of January 2008 or at least in first week of February 2008 after his options were squared off on 31.1.2008. However, the Respondent has raised the dispute only after receiving the notice of hearing of the claim. This shows that the defence on these grounds is clearly an afterthought.
5.4. The Applicant has produced the relevant contract notes and ledger account showing transactions carried out on NSE. Since the Respondent has not disputed transactions in his account, except the time of squaring off of open positions, the absence of MCA due to misplacement will not affect the contractual obligation on the part of the Respondent to pay dues under the agreement. The squaring off of transactions on 22.1.2008 done by the Applicant is within the Bye laws, Rules and Regulation on NSEIL. The claim of the Applicant is therefore, upheld.
3. The contention of the Petitioner that the Respondent had never instructed or not properly understand need material to justify the same. The only averments are insufficient. The party who has averred, must prove his case, and/or discharge the basic burden, which in the present case, is missing. Having once failed to prove the same, it is difficult to accept the contention of the Petitioner that the Respondent had not acted as per his instructions and/or contrary to the instructions. Admittedly, the Petitioner was doing business since more than ten months and as was fully aware of the nature of the business including its effect and giving oral instructions, now cannot be permitted to deny the transactions.
4. The fact is that the Respondent was doing business based upon signed MCA without any objections. The fact is that, the Petitioner himself had communicated to do the business as alleged. There is no dispute or denial to the agreement between the parties. The receipt of contract note and/or communication is not denied, but only denied the receipt of the email. Even if the said contention is accepted, the fact remains that there was no specific objection raised at appropriate time.
5. The aspect that the respondent need to cover up the balance margin and the amount in such type of transaction cannot be overlooked. The obligation of the petitioner to pay the requisite amount or margin amount is very clear as admittedly the petitioner himself instructed to clear or sell the securities. The submission is made that the respondent ought to have disposed of or sold of all the securities is not accepted for want communications and the supporting material. In such type of transaction the respondent cannot be expected to dispose of or sell all the securities more than the requirement to cover up the margin amount.
6. Any how, as the petitioner failed to discharge his basic duties, and in view of findings given by the learned Arbitrator, under Section 34 of the Act the scope is very limited. There is no perversity.
7. The judgment so cited by the learned counsel appearing for the petitioner, in view of above facts, is distinguishable on facts itself. So far as law and principle and scope of provision under Section34 of the Act need no further discussion. I am dismissing the present petition in view of the settled law itself.
8. The petition is dismissed accordingly.
No order as to costs.
(ANOOP V. MOHTA, J.)