M/S. Actal vs M/S. India Infoline Limited
2012 Latest Caselaw 139 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                     ORDINARY ORIGINAL CIVIL JURISDICTION

                    ARBITRATION PETITION NO. 449 OF 2012




                                                         
    M/s. ACTAL,
    A sole proprietorship concern through its
    proprietor Mr. Nizam Shaikh having its office at 6/7,




                                                        
    Ketan Kunj, Next to Mamuji Medical, 2nd Hasnabad Lane,
    Santacruz (West), Mumbai 400 054                               ...        Petitioner

                                           Versus




                                            
    M/s. India Infoline Limited,
    A company registered under the Companies Act,
                            
    1956 and having its office IIFL Centre,
    Wing B & Extension, Kamala City,
    Senapati Bapat Marg, Lower Parel,
                           
    Mumbai 400 013                                                 ...        Respondent


    Mr. Rahul Narichania along with Mr. Prathamesh Kamat i/by M/s. Kushal Mor for
       

    the petitioner.
    



    Mr. Pesi Mody, Sr. Advocate along with Mr. Neville Lashkari along with Ms. June
    Goxeia i/by M/s. Thakore Jariwala & Associates for respondent.


                                        CORAM : R.D. DHANUKA, J.

DATE : 09TH OCTOBER, 2012.

ORAL JUDGMENT :

By consent of parties, heard finally at the admission stage.

2. By this petition filed under section 34 of the Arbitration and Conciliation Act,

1996 (for short "Act"), the petitioner seeks to challenge the award declared by the

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appellate Bench of the Bombay Stock exchange Limited. By the said award dated

16th December, 2011 declared by the appellate bench of the Bombay Stock

Exchange Ltd., appeal filed by the petitioner is dismissed and the appeal filed by the

respondent is partly allowed. Both the parties had filed appeals before the appellate

Bench challenging the award dated 14th March, 2011 declared by the arbitral

tribunal. Petitioner had challenged the award rejecting the claim made by the

petitioner and allowing the counter claim made by the respondent partly.

Respondent has challenged the award rejecting part of its counter claim.

3.

Some of the relevant facts for the purpose of deciding the issues raised in the

present proceedings are as under :

The Petitioner is engaged in the business of trading in shares, insurance,

bonds, mutual funds and the like and was associated with the respondent since 20 th

January, 2007 as a sub broker. The respondent is a registered broker and member of

the Bombay Stock Exchange limited (For short "BSE"). According to the petitioner,

petitioner received part of its share of the brokerage from the respondent on and

from January, 2007 initially on sharing basis and thereafter on a base brokerage

model basis. According to petitioner, the respondents did not pay the full brokerage

due to petitioner. It is petitioner's case that no brokerage had been paid by the

respondent to the petitioner after January, 2008 and on 12 th September, 2008, the

trading terminal and back office software provided to the petitioner by the

respondent was illegally blocked by the respondent.

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4. On 15th September, 2008, the petitioner issued notice to the respondent to re-

establish the trading terminal and provide access to back office software and to

release all outstanding dues owing to the petitioner with interest starting April, 2007

until payment.

5. By letter dated 13th October, 2008, the respondent admitted that the petitioner

had introduced clients who entered into separate KYC and broker client agreements

with respondent and such clients were trading in their account with the respondent.

By the said letter, the respondents informed the petitioner that the respondent was

following up with the petitioner to receive the payments on accounts introduced by

the petitioner and thereafter deactivated the trading account of the petitioner.

6. After referring the matter to the Investors Grievance Committee of the BSE

by the petitioner, as the mater could not be settled, the petitioner filed statement of

claim on 1st April, 2009 before BSE claiming sum of Rs.59,19,003/- towards the

arrears of share of brokerage, Rs.14,37,111/- towards the incentive earned on the

interest charged to non banking financial companies clients introduced by the

petitioner and interest of Rs.21,48,498/- at 24% on the brokerage and incentive due

and payable to the petitioner by the respondent.

7. On 21st August, 2009, the arbitral tribunal declared the award allowing the

claim of Rs.59,19,003/- made by the petitioner.

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8. The respondent challenged the said award dated 21st August, 2009 by filing

Appeal (32A of 2009) before the Appellate Bench of the BSE. By an award dated

7th April, 2010, the appellate Bench set aside the award dated 21 st August, 2009 and

directed the arbitral tribunal to decide the reference after giving both parties

opportunity to amend their pleadings and allowing them to file additional

documents and evidence.

9. By letter dated 29th June, 2010, the petitioner called upon the respondent to

furnish brake up of the claim pertaining to BSE as well as NSE transactions based

on the TDS certificates. The Petitioner filed an application on 19 th July, 2010

before the arbitral tribunal seeking bifurcations of amounts of trades alleged to have

been conducted on BSE and NSE before the arbitral tribunal. By an order dated

23rd July, 2010, the arbitral tribunal directed the respondents to furnish necessary

particulars on or before 10th August, 2010 and to grant inspection of documents to

the petitioner. Vide its letter dated 13 th August, 2010, the respondent submitted CD

containing various details with respect to transactions effected on BSE by the

petitioner. According to petitioner, the details submitted were vague. The respondent

did not furnish the details of transactions executed on NSE . On 16 th November,

2010 the arbitral tribunal recorded minutes of the meeting held. It was recorded that

the respondent had sent CD containing the contract notes of the BSE transactions.

The petitioner had not amended the statement of claim though were directed to

amend within one week of the bifurcation being given by the respondent. The

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arbitral tribunal observed that sufficient indulgence had been given to the petitioner

and were not inclined to grant any further time to amend the statement of claim.

10. On 25th November, 2010, the petitioner filed another application before the

arbitral tribunal seeking directions against the respondent to furnish necessary

details with respect to the transactions allegedly conducted on BSE and NSE.

According to petitioner, on 30th November, 2010 the arbitral tribunal did not

consider the said application dated 25 th November, 2010, but proceeded to hear the

matter and concluded the reference. On 14 th March, 2011, the arbitral tribunal

made the award rejecting the claims made by the petitioner and allowed the

counter claim made by the respondents partly.

11. By an order dated 30th June, 2011, the arbitral tribunal rectified its award

made on 31st March, 2011 in respect of certain particulars appearing in the award.

12. Being aggrieved by the said award dated 31st March, 2011 made by the

arbitral tribunal, the petitioner filed an appeal (7A of 2011) challenging the

rejection of the claim made by the petitioner and allowing the counter claim of the

respondent. The respondents filed appeal (21A of 2011) challenging the rejection of

part of the counter claim by the arbitral tribunal.

13. By award dated 16th December, 2011 made by the appellate bench of the

BSE Limited, the appeal No. 7A of 2011 filed by the petitioner came to be

dismissed. Appeal No. 21A of 2011 filed by the respondent was allowed and the

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petitioner was directed to pay to the respondent a sum of Rs.30,15,888/- to the

respondent in addition to a sum of Rs.25,82,162/- with interest thereon at the rate

of 10% p.a. from August, 2009 till payment. The petitioner has impugned the said

award dated 16th December, 2011 made by the appellate Bench in this petition.

14. The learned counsel appearing for the petitioner submits as under :

(a) The arbitral tribunal as well as appellate

arbitral tribunal failed to give reasons while allowing

counter claim made by the respondent. The award is

thus vitiated being violative of section 31(3) of the

Act read with byelaw 255(2) of the BSE.

(b) The respondent had failed to discharge its

burden of proof to prove its counter claim. The

arbitral tribunal as well as appellate bench allowed

the counter claim based on no evidence. The

respondent did not lead any evidence to prove the

loss sustained by it on account of default of

constituents. In the absence of any proof of any

actual loss suffered by the respondent, the respondent

was not entitled to be awarded on its counter claim

on any indemnity by the petitioner and that byelaw

218(3) of BSE to the extent of Rs.30,15,888/-.

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Though the arbitral tribunal as well as appellate

Bench recorded a finding that byelaw 218(d) was

unreasonable, unconscionable and against the

principles of justice of equity, the counter claim was

allowed which was inconsistent, unconscionable,

unreasonable, against the principles of equity and

justice and is in conflict with public policy of India.

(c) The respondent filed consent terms in the

arbitration proceedings between the respondent and

United Capital behind the back and without the

knowledge of the petitioner in respect of M/s. Jani,

Cancey & Richards. The respondent invoked

arbitration and obtained the award its its favour. The

respondents without taking the petitioner into

confidence entered into settlement for lower sum in

full and final settlement by invoking indemnity

which resulted in prejudicing the petitioner's

right/remedy agaisnt M/s. United Capital Limited and

M/s. Jani, Clancey & Richards. The award is

contrary to law of indemnity under section 124 and

125 of Indian Contact Act and is thus against the

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public policy of India.

(d) The arbitral tribunal as well as appellate bench

did not decide the application dated 25 th November,

2010 filed by the petitioner for bifurcation of

particulars of BSE and NSE and thus denied the

petitioner of its right to challenge the same in appeal

and or to lead evidence to prove its claim. The

application made by the petitioner was for material

documents. The arbitral tribunal ought to have

directed the respondents to furnish such material

documents.

(e) The arbitral tribunal as well as appellate bench

wrongly placed reliance on the judgment of the

Division Bench in S.P. Brokers Vs. Biren M.S. and

in the case of Jyotsna Vs. T.M. Parikar and Co. and

erroneously observed that TDS certificates did not

constitute a written contract. Both the tribunals failed

to appreciate that the TDS certificates issued by the

respondent indicated acknowledgement of liability

by the respondent to pay to the petitioner.

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          (f)    The respondent did not lead any evidence to

          show that the      discretion was exercised by the




                                                                             

respondent bona fide and were deemed to have been

advised that the compromise was proper. The arbitral

tribunal has not recorded any finding that the

discretion was exercised bona fide by the respondent.

(g) The arbitral tribunal has allowed the counter

claim of Rs. 25 lacs., without recording any

discussions or reasons. That part of the award was

in violation of principles of natural justice.

(h) Byelaws 218(d) of BSE is contrary to and

inconsistent with section 124 and 125 of the Contract

Act and thus the arbitral tribunal ought to have

applied section 124 and 125 of the Contract Act and

not byelaw 218(d). The Act would prevail over

byelaw. The respondent had not satisfied the

condition laid down under section 124 and 125 of the

contract Act. The award is contrary to substantive law

and is in conflict with the public policy. The award

shows patent illegality and is vitiated.

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15. The learned counsel for the petitioner placed reliance on the following

judgments in support of various pleas summarized aforesaid :

(1) Shri. M.S. Sethi Vs. Shri. R.P.Kapur1 ,

(2) S.P. Brothers Vs. Biren Ramesh Kadakia2 (3) Sherkhan Limited Vs. Nita Thakkar3 (4) Hindustan Petroleulm Corporation Limited Vs. Batliboi Environmental Engineers Ltd.4

(5) Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd.5 (6) State of Rajasthan and another Vs. Ferro Concrete Construction Private Limited6 (7) General Manager and anr. Vs. Ramdas Contruction Company and anr.7 (8) Ispat Industries Ltd. Vs. Baby Samuel & Co.8

(9) Commissioner of Income Tax Vs. Qatar Airways9 (10) State Bank of Saurashtra Vs. Ashit Shipping Services (P) Ltd.10

(11) Rajendar Singh Verma Vs. Lieuenant Governor (NCT of Delhi) and Ors.11

16. On the other hand, the learned senior counsel for the respondent submits as

under :-

(a) The award made by the arbitral tribunal as

well as appellate bench recorded detailed reasons

on all issues and are in accordance with section

36(3) of the Act as well as byelaw 255(2) of BSE.

1 AIR 1972 Suprme Court 2379 2 2009(1)Bom. C.R. 453

3 2012(3) Bom.C.R.889 4 2008(1) Bom.C.R.89 5 (2003) 5 Supreme Court Cases 705 6 (2009) 12 Supreme Court Cases 1 7 2009 (2) Bom.C.R. 884 8 2009(2) Bom.C.R.784 9 (2011) 332 ITR 253 (Bom) 10 (2002) 4 Supreme Court Cases 736

11 (2011) 10 Supreme Court Cases 1

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(b) The respondent had produced all the BSE

contract notes which constitute primary evidence.

None of these contract notes submitted by the

respondents were ever disputed or denied. The

Petitioner's claim was for brokerage earned from

the very same contracts. The respondent proved its

counter claim. Though the respondent had furnished

all the documents including contract notes and C.D.,

as directed by the arbitral tribunal and opportunity

was repeatedly given to the petitioner to amend its

statement of claim, the petitioner did not bother to

amend. The claims made by the petitioner were thus

totally vague, without particulars and proof and had

been rightly rejected by the arbitral tribunal as well as

the appellate bench.

(c) The application dated 25th November, 2010

filed by the petitioner for bifurcation of particulars

on BSE and NSE was repetition of its earlier

application which was already decided. Even

application dated 25th November, 2010 was already

rejected by the arbitral tribunal as is admitted by the

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petitioner itself in its pleadings at Page 155 of the

petitioner's compilation.

(d) The parties as well as arbitral tribunal were

bound by the rules, byelaws and regulations of BSE.

The petitioner had commenced arbitration under

rules, byelaws and regulations of BSE. Such rules,

byelaws and regulations framed by the BSE are

statutory in character and could not have been

challenged in arbitration proceedings. Both the

arbitral tribunal had rightly followed such statutory

byelaws. The arbitral tribunal could not decide the

constitutional validity of such byelaws.

(e) The petitioner's ledger account was disclosed

by the respondents in its counter claim by which

respondent had claimed Rs.11,30,177/-. This claim

was rejected by the arbitral tribunal.

(f) The TDS certificates issued under section

194(h) of the Income Tax Act, 1961, can not amount

to acknowledgement of liability to pay. The TDS had

been deducted on the gross amount credited and not

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on the amount after setting out other party's

liabilities.

(g) The respondent had already furnished all the

contract notes of BSE to the petitioner which were

not disputed by the petitioner. In spite of all such

documents having been furnished, the petitioner did

not amend its claim. The arbitral tribunal was

justified in rejecting the said claim without any proof

and particulars.

(h) There was no agreement arrived at between

the parties about percentage of brokerage. In absence

of any such agreement, the petitioner could not make

any claim. The petitioner also did not give any details

in its claim for brokerage.

(i) The terminal of the petitioner was blocked on

12th September, 2008. The claim was made by the

petitioner from January, 2008 onwards. The

petitioner had been executing the transactions. The

Petitioner therefore, ought to have submitted its claim

on the basis of the information and record available

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with it. The petitioner was required to prove its

claim on the basis of the evidence produced. The

petitioner could not have been dependent upon the

respondent for furnishing details to prove the claim

of the petitioner. Though the respondents were not

bound to furnish any such information to petitioner,

but had provided all cooperation and furnished all

relevant documents to the petitioner.

(j)

Under byelaw 218(a) and 218(e) and (f), it

was the liability of the petitioner who was sharing

brokerage, to reimburse the respondent the payment

not effected by the clients introduced by the

petitioner. The respondent was entitled to

appropriate the loss suffered by the respondent due to

such non recovery from the clients introduced by the

petitioner against the brokerage payable if any to the

petitioner. The respondents thus had not committed

any breach of any such byelaws and were fully

justified in making the claim for recovery of the

payments not made by the clients introduced by the

petitioner.

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(k) The contract note executed by the respondent

categorically record agreement that such contracts

were subject to rules, byelaws and regulations.

Byelaw 192 provides that all contracts between the

parties are subject to byelaws. The total brokerage

on each transaction was already provided in the

contract note. The share percentage of the brokerage

of the petitioner was to be agreed upon. The entire

arbitral proceedings were initiated in accordance

with the rules and byelaws. The Petitioner was thus

under obligation to comply with the byelaws. The

claims of the petitioner had been recognized only

under the byelaws and regulations.

(l) Both the arbtiral tribunals were right in

allowing the counter claim based on the provisions

under byelaw 218(f) of the BSE which is statutory

and binding. The Petitioner having committed

default under byelaw 218(e), the respondent was

right in invoking byelaw 218(f).

(m) The petitioner did not file any reply to the

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counter claim filed by the respondent. The petitioner

also did not oppose counter claim before appellate

bench. The learned appellate bench was thus right in

allowing the counter claim made by the respondent.

(n) The personal ledger account of the petitioner

was already submitted on record. The learned

counsel distinguished the authorities relied upon by

the petitioner.

(o)

The learned counsel for the respondent places

reliance upon the judgment of this court in the case

of Stock Exchange Mumbai Vs. Vinay Bubna12 and

in the case of R.C. Goenka Vs. M/s. Chase Trading

Co.13 in support of the plea that byelaws framed by

BSE are statutory in character and are binding.

17. I have heard the learned counsel and have bestowed my anxious

consideration to the rival submissions made by the learned counsel.

18. Upon perusal of the impugned award made by the arbitral tribunal as

well as the appellate arbitral tribunal, it is clear that both the award records

12 AIR 1999 Bombay 266 13 2002 (1) Mh.L.J. 774

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the reasons. The awards also record the submissions made by both the

parties. In my view, there are sufficient reasons recorded by both, the arbitral

award as well as the appellate bench. I am not inclined to accept the

submission made by the petitioner that the awards are without recording

reasons and are in violation of Section 31(3) of the Act or byelaw 255(2) of

the BSE.

19. The next submission of the petitioner is that the respondent had failed to

discharge its burden of proof to prove its counter claim and that the arbitral

tribunal as well as appellate bench allowed the counter claim based on no

evidence. On the perusal of the award made by the arbitral tribunal, it is clear

that the petitioner had opposed the counter claim on the ground that the same

was barred by limitation. The arbitral tribunal rejected part of the counter

claim in the sum of Rs.11,30,177/- on the ground of limitation. The

respondent had restricted its counter claim to the extent of Rs.55,98,050/- as

against the original claim of Rs.1,18,22,303/-. The arbitral tribunal however

rejected the counter claim to the extent of Rs.30,15,888/- and allowed to the

extent of Rs.25,82,162/- with interest. The arbitral tribunal allowed the said

claim in respect of four clients introduced by the petitioner out of six clients.

The arbitral tribunal placed reliance upon byelaw 218(d) and 218 (f). The

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arbitral tribunal after recording the reasons allowed the counter claim partly.

From the perusal of the award declared by the appellate bench, it is clear that

except plea of limitation raised by the petitioner in so far as the counter claim

is concerned, no other submissions were advanced. The submissions of the

petitioner have been summarised by the arbitral appellate bench in the

impugned award. While allowing the appeal filed by the respondent and

directing the petitioner to pay a sum of Rs.30,15,888/- with interest which

claim was rejected by the appellate tribunal, the appellate bench placed

reliance on byelaw 218(f) of the BSE. The appellate bench observed that in

view of the said byelaw, it was clear in its mandate that so long as the same

governs the rights and liabilities of the parties, the arbitral tribunal as well as

the bench were unable to ignore the same. It is a matter of record that the

petitioner did not file any reply to the appeal filed by the respondent (21A of

2011) by which part of the rejection of the counter claim made by the

respondent was challenged. No other issue on merits of the counter claim was

raised by the petitioner before the appellate bench. The appellate bench was

thus justified in allowing the appeal filed by the respondent. The award thus

made by the appellate bench cannot be faulted with. In any event, respondent

had produced documentary evidence before the arbitral tribunal which was

not disputed by the petitioner. In my view thus there is no merit in the

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submission made by the petitioner that respondent had failed to prove the loss

sustained by it on account of default of constituents. There is also no merit in

the submission of the petitioner that the counter claim was allowed by the

arbitral tribunal as well as by the appellate bench without any evidence. The

consent terms filed between the respondent and the client introduced by the

petitioner were on record before the arbitral tribunal. Both, the arbitral

tribunal as well as the appellate bench has recorded the finding of fact which

cannot be interfered with unless the same is perverse. In my view, there is no

perversity in any of the finding recorded by the appellate tribunal as well as by

the bench.

20. In my view, the reliance placed by the learned counsel for the petitioner

in case of Sherkhan Limited (supra) , Hindustan Petroleum Corporation

Limited (supra), State of Rajasthan and another (supra), General

Manager and anr. (supra), Ispat Industries Ltd. (supra) is misplaced.

21. The next submission of the petitioner is that though the appellate bench

recorded the finding that byelaw 218(d) was unreasonable, unconscionable

and against the principles of justice of equity, both the tribunal has allowed

the counter claim which is inconsistent, unconscionable and unreasonable.

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The petitioner placed reliance on Sections 124 and 125 of the Contract Act.

"124. "Contract of indemnity" defined.- A

contract by which one party promises to save the other from loss caused to him by the conduct of

the promisor himself, or by the conduct of any other person, is called a" contract of indemnity".

Illustration A contracts to indemnify B against the

consequences of any proceedings which C may take against B in respect of a certain sum of 200 rupees. This is a contract of indemnity.

125. Rights of indemnity-holder when sued.-

The promisee in a contract of indemnity, acting within the scope of his authority, is entitled to

recover from the promisor-

(1) all damages which he may be

compelled to pay in any suit in respect of any matter to which the promise to indemnify applies;

(2) all costs which he may be compelled to pay in any such suit if, in

bringing or defending it, he did not

contravene the orders of the promisor, and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the

promisor authorized him to bring or defend the suit;

(3) all sums which he may have paid under the terms of any compromise of any such suit, if the compromise was

not contrary to the orders of the promisor, and was one which it would have been prudent for the promisee to make in the absence of any contract of indemnity, or if the promisor authorized him to compromise the suit.

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Byelaws 218(d) and (f) of the BSE reads thus :-

218 Indemnity

(d) In the absence of an agreement in writing to the contrary a remisier, authorised clerk, employee

or other person sharing brokerage shall be deemed to have agreed to give a full and complete indemnity to the member with whom he shares brokerage for any loss which such member may

sustain by the default of the constituent (provided such constituent is not a member of the Exchange) introduced by him in fulfilling his obligations.

Liability of Remisier, Authorised Clerk,

Employee or Other Person

(f) If the remisier, authorised clerk, employee

or other person sharing brokerage fails to pay the amount due by the defaulting constituent

introduced by him then at his risk and cost the member shall be entitled to take such proceedings against the defaulting constituent and/or make such settlement or compromise with him as he in his discretion deems advisable. The acceptance of

a promissory note from the defaulting constituent for the whole or part of the amount due from him

shall not release the remisier, authorised clerk, employee or other person sharing brokerage from his liability to pay to the member the original

amount due from the defaulting constituent nor shall any settlement or compromise with the defaulting constituent diminish the liability of the remisier, authorised clerk, employee or other person sharing brokerage who shall pay to the

member the unrealised balance of the original amount due from the defaulting constituent and the costs and expenses incurred in the course of realisation."

22. The learned counsel for the petitioner submits that in the event of any

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inconsistency between the provisions of the Indian Contract Act and the

byelaws 218(d) and (f) of the BSE, the arbitral tribunal as well as the bench

ought to have followed the provisions of the Contract Act and not byelaws. It

is submitted that the act would prevail over byelaw. It is submitted that the

award is thus contrary to substantive law and is in conflict with the public

policy. In my view, the learned senior counsel appearing for the respondent is

right in his submission that no such plea was raised by the petitioner either

before the arbitral tribunal or before the appellate bench and thus cannot be

allowed to raise this plea for the first time across the bar. The records

produced by both the parties indicates that no such issue was raised before the

arbitral tribunal or before the appellate bench. In my view, this plea cannot be

allowed to be raised for the first time in this court. Even otherwise, bylaw

framed by the Bombay Stock Exchange are statutory in nature. The

agreement entered into between the parties of contract notes issued by the

respondent also record that all transactions were subject to the byelaw of the

BSE. The claim was filed by the petitioner before the arbitral tribunal was

under byelaw of BSE. The Learned senior counsel appearing for the

respondent rightly placed reliance upon the judgment of this court in case of

Stock Exchange Mumbai Vs. Vinay Bubna (supra). Paragraphs 29 and 30

of the judgment in case of Stock Exchange Mumbai (supra) reads thus:-

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29. Aforesaid decision has thus held that the phrase "under any enactment" includes bye-laws, rules, regulations, ordinances, statutes etc. From

the aforesaid decision it would be clear that the word "enactment " would mean and include bye-

laws, framed under an Act. It would, therefore, follow that the Bye-laws framed under the Regulation Act, would form part of the Regulation Act and the same will prevail over provisions of

Section 10 of Arbitration Act, 1996.

30. A conclusion is, therefore, irresistible that bye-laws 249(a) is a

statutory bye-law. The same will operate and will apply in respect of all

arbitrations under the Regulation Act and the same will not be hit by the provisions of Sec. 10 of the Arbitration

Act, 1996. Aforesaid bye-laws will be saved by the provisions of Section 2(4) of 1996 Act and will prevail over the provisions of Sec. 10 of the Act. The

decision of the learned Single Judge taking a contrary view is thus liable to

be set aside. The Award passed by the Arbitral Tribunal consisting of an even number of arbitrators as provided under

the bye-laws would be valid and the same wilt not be rendered void by virtue of the provisions of Sec. 10 of 1996 Act.

23. The learned counsel for the respondent also placed reliance upon the

judgment of this court in case of R.C. Goenka Vs. M/s. Chase Trading Co.

(supra) on the same issue.

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24. In my view, thus the reliance placed by the petitioner on the judgment

of this court in case of Sherkhan Limited (supra), Oil & Natural Gas

Corporation Ltd. Vs. Saw Pipes Ltd.(supra) is misplaced.

25. In my view, the byelaw framed by the Bombay Stock Exchange

including byelaw 218(d) and 218(f) are statutory byelaws and the same would

prevail over the provisions of Contract Act. The observations made by the

arbitral tribunal as well as by the appellate bench that byelaw 218(d) and

218(f) appears to be unconscionable, unreasonable or against the principles of

natural justice is of no significance. The arbitral tribunal is also bound to

follow byelaw of BSE which are statutory in nature. Both the tribunals have

rightly followed byelaw 218(f) while allowing the counter claim made by the

respondent.

26. The next submission of the counsel for the petitioner is that the

appellate tribunal as well as the appellate bench did not decide the application

dated 25th November, 2010 filed by the petitioner seeking bifurcation of

particulars of BSE and NSE transactions and to produce the material

documents thereby depriving the petitioner of an opportunity to prove its

claim. The record produced by both the parties indicates that the application

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dated 25th November, 2010 was mere repetition of the earlier application

which was already decided by the arbitral tribunal and the directions were

already complied with by the respondent. The petitioner has also admitted in

its pleading at page 155 of the compilation that even the said application dated

25th November, 2010 filed by the petitioner was rejected by the appellate

tribunal. In my view, thus, there is no merit in the submissions made by the

petitioner that the said application dated 25 th November, 2010 was not decided

by the arbitral tribunal or by the appellate bench.

27. The next submission of the petitioner is that both the tribunals failed to

appreciate that the TDS certificates issued by the respondent indicated

acknowledgment of liability by the respondent to pay to the petitioner. The

learned counsel appearing for the petitioner placed reliance on the judgment of

this court in case of Commissioner of Income Tax Vs. Qatar Airways. The

learned counsel made an attempt to distinguish the judgment of this court in

the case of S.P. Brothers Vs. Biren Ramesh Kadakia. The relevant portion

of paragraph (8) of the judgment of S.P.Brothers (supra) reads thus :-

"8. ......................... The issuance of TDS certificates does not amount to an acknowledgment of defendant within the meaning of section 25 of the Indian Evidence Act and the Full Bench judgment of this Court in the case of Jyotsna (supra) puts the matter beyond doubt. The

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TDS certificate is primarily to acknowledge the deduction of tax at source. The certificate does not refer to any amount of loan or even the rate of

interest which is payable on the said principal amount. It does not refer to any contract between

the parties and even a transaction. When a written contract is produced before the Court, its contents are the best evidence. The bare reading of Order 37 Rule 2 shows that these provisions have a

restricted application and the order applies only to the class of suits specifically mentioned in the rule. A suit based upon bill of exchange, hundi, promissory note to recover a debt or liquidated demand payable by the plaintiff to the defendant

with or without interest but arising from a written contract, or an enactment, or a guarantee where

the claim against the principal is in respect of a debt or liquidated demand only. We are unable to

accept the contentions raised on behalf of the respondent that issuance of certificate for tax deduction at source would be a document which will fall in any of the clauses stated under Order 37 Rule 2. As already noticed, a written contract

between the parties has neither been pleaded nor any document to that effect placed on record. It is

not a debt due on an enactment as understood in legal parlance or a guarantee. Admittedly, the loan was advanced as a friendly loan to which serious

dispute has been raised. The dispute raised by the defendant relates to questions of law as well as facts."

28. In the case of S.P. Brothers (supra), this court while dealing with Order

37 Rule 2 of the Code of Civil Procedure had granted unconditional leave to

defend the summary suit by holding that issuance of certificate for tax

deduction at source would not be a document which would fall in any of the

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clauses stated under Order 37 Rule 2 of the Code of Civil Procedure, 1908. It

has been held that the issuance of TDS certificate does not amount to an

acknowledgement of defendant within the meaning of Section 25 of the

Indian Evidence Act. TDS certificate is primarily to acknowledge the

deduction of tax at source. In my view, the issuance of TDS certificate by the

respondent in this case does not amount to any acknowledgment of liability by

the respondent in favour of the petitioner. The arbitral tribunal as well as the

appellate bench were thus right in rejecting the submission made by the

petitioner while refusing to consider the TDS certificate as the

acknowledgment of liability. The TDS certificate issued by the respondent in

this case was common in respect of the transaction held between the petitioner

and the respondent on BSE as well as NSE.

29. The record produced by the parties indicates that the respondent had

produced all the contract notes of BSE showing the transaction between the

petitioner and the respondent which constitutes primarily evidence. The

petitioner had never disputed the contents of the contract notes produced by

the respondent. The petitioner had claimed brokerage based on the very same

contract notes. The petitioner could not produce any proof to show the

percentage of brokerage agreed upon between the parties. Though enough

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opportunity was given by the arbitral tribunal as well as the bench, the

petitioner did not amend its claim and the same was totally vague, without

particulars and proof and thus was rightly rejected by the arbitral tribunal as

well as the appellate bench. The petitioner ought to have proved its claim on

the basis of its own evidence and not on the basis of the evidence in the

custody of the respondent, if any. Both the tribunal has recorded the findings

of fact and does not require any interference by this court. In my view, there

is no merit in any of the submission made by the petitioner.

30. I, therefore, pass the following order :-

(a) The arbitration petition is dismissed.

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

(R.D. DHANUKA,J.)