Remanded

Rajendra a. Shah (H.U.F.) v. M/s. Angel Capital and Debt Market Limited

Bombay HC18 Sept 2012ARBP/425/2009

Case brief

AI extract

What is this about?

The High Court quashed an arbitral award in an arbitration petition arising from a trading dispute. The court held that the tribunal committed a clear legal error and violation of natural justice by failing to consider the petitioner's counter claim of Rs.11 lacs. The award was set aside except for costs, and the matter was remanded for a fresh trial.

What did the court decide?

The award dated 17th February, 2009 is quashed and set aside except for costs, and the matter is remanded back for re-trial and reconsideration.

Rajendra a. Shah (H.U.F.) Vs M/s. Angel Capital and Debt Market… — Arbitration | Bombay HC (2012)

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rpa

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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ARBITRATION PETITION NO.425 OF 2009

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Rajendra A. Shah (H.U.F.) (Constituent) As Karta of Rajednra A. Shah 31-Empire Tower, Near Associated Petrol Pump, C.G. Road, Ahmedabad – 380 006. .. Petitioner V/s. M/s. Angel Capital & Debt Market Ltd., (Trading Member) A company incorporated under the provisions of the Companies Act, 1956 having their office at Unit No.G-1, Ground Floor, Akruti Trade Centre, MIDC Marol, Road No.7, Andheri (E), Mumbai – 400 093. .. Respondent

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Mr. P. S. Gidwani for the Petitioner. Mr. Deepak Dhane with Mr. Shantibhushan Nirmal for the Respondent.

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CORAM : ANOOP V. MOHTA, J. DATE : 18^th SEPTEMBER, 2012.

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ORAL JUDGMENT :

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The Petitioner (original Respondent) has challenged award dated 17^th February, 2009 passed by the Arbitral Tribunal constituted under the Bye-laws, Rules and Regulations of National Stock Exchange of India (for short “NSEIL”).

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The basic case of the Applicant/Petitioner is as under:

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The Petitioner is a constituent and the Respondent is a trading member. A Member Client Agreement was executed in June, 2004. as there was debit of Rs.9,16,685/- on 31^st March, 2008 in the NSE F&O segment in the account of Petitioner-original Respondent and as no payment made though demanded and therefore, arose dispute. The Respondent filed the claim/reference. It was contested and counter claim was also raised.

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The Respondent has also stated that he had given the collateral securities worth Rs.16 lacs, which were lying with the Claimant from the year 2007 onward. The Respondent admitted on 21^st January, 2008, due to the collapse of market was asked to pay Rs.10 lacs immediately. He gave a cheque of Rs.10 lacs on 22^nd January, 2008 to the Claimant's office during banking time. He also promised that whatever be short fall on 22^nd January, 2008, he would

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make good by 23^rd January, 2008, as there was further collapse of the market on 22^nd January, 2008. According to the Respondent at 3.10 p.m., on 22^nd January, 2008, he received a telephone call on his mobile from Ms. Ankita asking him to send a cheque of Rs.7 lacs immediately, otherwise his position will be squared off, he requested the Claimant to wait till evening as he had to arrange the fund and assured payment before the banking hours on 23^rd January, 2008 without further notice the account was square off.

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In this case, though going further into the merits of the matter, the relevant aspect is of non consideration of the counter claim raised by the Petitioner. The Petitioner has placed on record the compilation of documents which are stated to be part and parcel of the original proceeding. There is no serious dispute about the same.

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To the statement of claim filed by the Respondent, the Petitioner has filed reply to the statement referring it as defence statement thereby pointing out his position as on 21^st January, 2008 and also the reasons for denying the plaint. In the prayer it is mentioned as under :

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“ I may be compensated for financial loss and mental agony.”

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The Petitioner apart from supporting documents in tabulate form the details of loss which he suffered because of squaring off action by the Respondent. It was based upon closing date as on 26^th January, 2008. The loss was to the extent of Rs.11,00,000/- and odd. There is no dispute that the Petitioner by letter dated 29^th January, 2009, pointed out that no proper opportunity was given to him and reference was specifically made about his counter claim of Rs.11,00,000/- referring to Exhibit-“C” . The Respondent while addressing a letter to the office in charge of NSEIL on 14^th February, 2008, accepted the position that the Petitioner-original Respondent made certain submissions of his counter claim before the learned Arbitrator on last hearing. The request was also made to take note of the same. The Respondent registered the same through this letter stating it to be contrary to his oral submission made at the hearing.

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The Respondent also requested to give opportunity of hearing. Both the counsel read and referred the arbitration reasons on all counts and made their respective submissions. However, there

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is no reference what so ever made about the counter claim while granting the claim. The counter claim as referred above and related averments and documents were part of the record. It is necessary for the Arbitral Tribunal to consider and/or at least dealt with the same by passing reasoned order. The counter claim of Rs.11,00,000/-, just cannot be overlooked when the claim of the Respondent was of Rs.9,00,000/-. Both the parties as recorded above were fully aware of the claim as well as the counter claim. The rejection of the counter claim in such fashion, in the present case, not even dealt with the same is “the clear error apparent on the face of the record.” It is the illegality which goes to the root of the matter and, therefore, the Award so passed on this ground itself needs to be interfered with.

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In a situation where the claims, as well as, the counter claim read with the issues and/or points are interlinked and interconnected and difficult to dissect or separate, the Court in my view, has no option but to remand the whole matter back for reconsideration. Mere setting aside the Award, is not sufficient in every matter. The arbitration proceedings set concluded once the Award is quashed and set aside, without any further orders or directions. The matter if remanded for re-consideration there maybe

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early and proper decision on merit. In the interest of justice, and to avoid further delay in the matter and to achieve the purposes and object of the arbitration, in my view, the Court is empower to remand the matter by giving specific and/or restricted directions. In a given case, permit the parties to the evidence and/or file additional material and/or direct the Arbitral Tribunal to proceed and/or assume on the basis of material already available on record. The reasons given in favour of the Petitioner-Applicant that the action of squaring off was well within the power; and as there was default on the part the Respondents and the rejection of the claim also on the ground of conduct and the doubts.

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This is one of the case where the learned Tribunal for whatever may be the reason, not even dealt with the counter claim of Rs.11,00,000/- filed by the Petitioner. Admittedly, the Petitioner appeared in person before the Tribunal. The defence statement so filed definitely referred the monetary compensation. The annexures filed to the defence statement also referred to the alleged loss which he suffered because of squaring off. Both the parties made their respective representations even before the Tribunal before closing of the matter referring to the said counter claim. The non

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consideration, in this background, in my view goes to the root of the counter claim so filed and raised by the Petitioner and this itself means that the Award so passed is contrary to the record and the settled law. This is also the case where it is difficult to dissect and/or remand the matter only for the reason that the counter claim has not been considered. If the counter claim is accepted fully or in part need to be considered by the Tribunal at the time of passing final order and, therefore, no option but to remand the matter on all issues.

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10. Resultantly,

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(a) Award dated 17^th February, 2009, is quashed and set

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aside except the part of costs.

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(b) The matter is remanded back for re-trial and re-

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consideration.

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(d) The learned Tribunal to dispose of the matter

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expeditiously, by giving full opportunity to the parties.

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(e) Parties to take steps in accordance with law.

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(f) There shall be no order as to costs.

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(ANOOP V. MOHTA, J.)

Rajendra a. Shah (H.U.F.) v. M/s. Angel Capital and Debt Market Limited

Case brief

What is this about?

What did the court decide?

Rajendra a. Shah (H.U.F.) v. M/s. Angel Capital and Debt Market Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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