Mrs.Nagalakshmi ... vs M/S.Dbfs Securities Ltd
2022 Latest Caselaw 14497 Mad

                                                                          Arb.O.P (Com.Div.) No.55356 of 2021
                                                                                                  (Filing No.)

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 16.08.2022

                                                           Coram

                                    THE HONOURABLE MR. JUSTICE M.SUNDAR

                                            Arb.O.P (Com.Div.) No.55356 of 2021
                                                       (Filing No.)

                  Mrs.Nagalakshmi Chandrasekharan Iyer
                  Thoorpu Madam House
                  Near Arattupuzha Milk Booth
                  Arattupuzha, Thrissur - 600 562.                                    ... Petitioner

                                                             vs.
                  1. M/s.DBFS Securities Ltd.,
                     2nd Floor, Chammany Chambers
                     Kaloor - Kadavanthra Road, Kaloor
                     Kochi - 682 017

                  2. Multi Commodity Exchange of India Ltd.,
                     2A, 9th Floor
                     Seethakathi Business Centre
                     684-690, Anna Salai, Thousand Lights
                     Chennai - 600 006
                     Tamil Nadu

                  3.Micro Multi Commodity Exchange of India Ltd.,
                    Exchange Square, CTS No.255, Suren Road
                    Chakala, Andheri (East)
                    Mumbai - 400 093                                                  ... Respondents

                                  Petition filed under Section 34 of the Arbitration and Conciliation
                  Act, 1996 to set aside the award dated 15.02.2021 passed by Justice
                  Dr.Pratibha D.Upasani (Retd.,), Shri.K.S.Dhingra and Shri.D.N.Mittra.
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                                                                             Arb.O.P (Com.Div.) No.55356 of 2021
                                                                                                     (Filing No.)




                                            For Petitioner: Ms.Pavitra Venkateswaran


                                                             ORDER

Captioned 'Arbitration Original Petition' ['Arb.OP' for the sake of

convenience and clarity] has been presented in this Court on 29.06.2021 assailing an

'arbitral award dated 15.02.2021 bearing reference Arbitration Application

MCX/ARB/5232A/2020' [hereinafter 'impugned award' for the sake of brevity,

convenience and clarity].

2. Impugned award has been made by a Hon'ble 'Arbitral Tribunal' ['AT'

for the sake of brevity and convenience] constituted by three Arbitrators. To be

noted, impugned award is a unanimous award.

3. Captioned Arb.OP has been listed before this Court under the cause list

caption 'FOR MAINTAINABILITY' as the Registry has entertained doubts about

whether this Court would be the appropriate Court qua a legal drill under Section 34

of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)' [hereinafter 'A

and C Act' for the sake of brevity and convenience]. In other words, the short point is

whether this Court is the curial Court.

4. Ms.Pavitra Venkateswaran, learned counsel for petitioner, adverting to

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Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

the impugned award submits that the petitioner before this Court is a client (though

described as 'constituent' in the impugned award) and the first respondent before this

Court i.e., DBFS Securities Ltd., is a trading member. The parties shall hereinafter

be referred to as 'client' and 'trading member' for the sake of convenience and clarity.

Learned counsel submits that there is a Contract Note between the client and trading

member being Contract Note dated 20.04.2020. Adverting to this Contract Note,

learned counsel submits that both parties have agreed for arbitration in accordance

with 'Rules/Bye-laws and Business Rules of Multi-Commodity Exchange of India

Limited' ('MCX Rules' for convenience and clarity). Therefore, the clauses in the

bye-laws of MCX which pertain to arbitration would apply to the parties is learned

counsel's say. It is not imperative to go into the transaction between the parties

considering the limited legal drill on hand, it would suffice to say that trading member

had some transaction with client pertaining to investment qua crude oil and disputes

erupted regarding the 'Due Date Rate' [DDR]. This is a thumbnail sketch of the

arbitrable dispute between the parties.

5. The parties i.e., client and trading member resorted to arbitration owing

to Clauses 12.7 and 15.20 of MCX Rules and arbitration was held in the second

respondent Arbitration Centre in Chennai is learned counsel's say. Clauses 12.7 and

15.20 read as follows:

'12.7 Place of Arbitration The arbitration and appellate arbitration shall be conduced

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Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

in the regional arbitration centre nearest to the Client. The application under Section 34 of the Arbitration and Conciliation Act, 1996, if any, against the decision of the appellate panel shall be filed in the competent Court nearest such regional centre. In case award amount is more than Rs.50 lakhs (Rs.Fifty Lakhs) the next level of proceedings/arbitration or appellate arbitration) may take place at the nearest metro city, if so desired by any of the parties involved.[The additional statutory cost for arbitration, if any, to be borne by party desirious of shifting the pace of arbitration.]'

'15.20 Place of Arbitration The arbitration and appellate arbitration shall be conduced at the regional arbitration centre of the Exchange nearest to the address provided by investor/client in the KYC form or as per the change of address communicated thereafter by the investor/ client to the Member. The application under Section 34 of the Act, if any, against the arbitral award passed by the arbitrator(s) or the Appellate Arbitral Award passed by the Appellate Arbitrator shall be filed in the competent court nearest to the address provided by investor/client in the KYC form or as per the change of address communicated thereafter by the investor / client to the Member.'

6. After arbitral proceedings were held in Chennai, AT made the

impugned award in Chennai and therefore captioned Arb.OP has been

presented in this Court is the further argument before this Court.

7. Learned counsel placed reliance on the oft-quoted BGS SGS https://www.mhc.tn.gov.in/judis

Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

Soma case law being BGS SGS Soma JV vs NHPC Ltd. reported in (2020) 3

MLJ 336 (SC) and drew the attention of this Court to Paragraph 82 thereat,

which reads as follows:

'82. On a conspectus of the aforesaid judgments, it may be concluded that whenever there is the designation of a place of arbitration in an arbitration clause as being the “venue” of the arbitration proceedings, the expression “arbitration proceedings” would make it clear that the “venue” is really the “seat” of the arbitral proceedings, as the aforesaid expression does not include just one or more individual or particular hearing, but the arbitration proceedings as a whole, including the making of an award at that place. This language has to be contrasted with language such as “tribunals are to meet or have witnesses, experts or the parties” where only hearings are to take place in the “venue”, which may lead to the conclusion, other things being equal, that the venue so stated is not the “seat” of arbitral proceedings, but only a convenient place of meeting. Further, the fact that the arbitral proceedings “shall be held” at a particular venue would also indicate that the parties intended to anchor arbitral proceedings to a particular place, signifying thereby, that that place is the seat of the arbitral proceedings. This, coupled with there being no other significant contrary indicia that the stated venue is merely a “venue” and not the “seat” of the arbitral proceedings, would then conclusively show that such a clause designates a “seat” of the arbitral proceedings. In an international context, if a supranational body of rules is to govern the arbitration, this would further be an indicia that “the venue”, so stated, would be the seat of the arbitral proceedings. In a national context, this would be replaced by the Arbitration Act, 1996 as applying to the “stated venue”, which then becomes the “seat” for the

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Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

purposes of arbitration.' (underlining made by this Court for ease of reference and for highlighting)

8. In the case on hand, venue in aforementioned Clauses 12.7 and

15.20 cannot be construed as one with no other contra indicia. In other words,

there is nothing to suggest that the 'venue' is merely a 'venue' and not the 'seat'.

The reason is Clause 15.6 of MCX Rules captioned 'Jurisdiction', which reads

as follows:

'15.6 Jurisdiction:All parties to a reference to arbitration under these Bye-Laws, Rules and Regulations and the persons, if any, submitting claims under them, shall be deemed to have submitted to the exclusive jurisdiction of the Court in Mumbai for the purpose of giving effect to the provisions of the Act, these Bye-Laws and Rules and Regulations in force.'

9. A careful perusal of aforementioned Clause 15.6 makes it clear

that MCX rules makes a distinction between 'seat' and 'venue'. In the case on

hand, 'seat' is 'Mumbai' and 'venue' is 'Chennai'. To be noted, in BGS SGS

Soma case law, Hon'ble Supreme Court has explained that the term 'place'

occurring in sub-section (3) of Section 20 is 'venue' and the same term 'place'

occurring in sub-section (1) of Section 20 is 'seat'.

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Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

10. In the case on hand, as 'seat' is clearly Mumbai owing to Clause

15.6 (extracted and reproduce supra), curial law follows seat and the therefore

the sequitur is, the curial Court is clearly Mumbai Court. To put it differently,

in the light of BGS SGS Soma case law, which was pressed into service, this is

a case where there is a clear (significant) contra indicia qua venue i.e.,contrary

indicia to the effect that the venue is merely a venue and that seat is another

place i.e., venue is nearest to that of the address given by the client (Chennai in

this case) and the seat is Mumbai. There can be no disputation or two opinions

that curial law follows seat and therefore, the curial Court in the case on hand

for a Section 34 legal drill would certainly be the Courts in Mumbai.

11. Learned counsel made a valiant attempt to place reliance on

Clause 15.20 (extracted and reproduced supra) to say that parties have agreed

that an application under Section 34 can be filed in a Court nearest to the

address provided by the client. In the considered view of this Court this

tantamounts to re-writing seat and venue as explained by Supreme Court in

BGS SGS Soma case law. Party autonomy no doubt is the sublime philosophy

underlying arbitration but it cannot be stretched to say that the parties can re-write

the proposition that curial law follows seat. Therefore, this Court is of the

considered view that the captioned matter has to go to Mumbai.

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Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

12. Before concluding, this Court makes it clear that this order shall

serve as no endorsement of MCX Rules as that is a set of Rules made by a

Company and shareholding pattern of the Company is not before this Court. It is

also not a multi-tiered arbitration which provides for a slightly different time

frame. It may not be necessary to go into those aspects in the case on hand and it

is left open with a caveat that it will be decided in another matter wherein a legal

tussle becomes imperative for answering the issue on hand in another matter.

Maintainability answered in the aforesaid manner.

16.08.2022

gpa

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Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

M.SUNDAR.J.,

gpa

Arb.O.P (Com.Div.) No.55356 of 2021 (Filing No.)

16.08.2022

https://www.mhc.tn.gov.in/judis