2026 (1) TMI 4 - HC - SEBI

Clients authorising third-party F&O trades despite missing pre/post confirmations; broker not liable for losses, award set aside.

Non-maintenance of pre-trade and post-trade confirmations mandated by the SEBI Circular dated 22 March 2018 was held to attract regulatory/disciplinary ... Failure to scrupulously follow the requirement of maintaining pretrade and post-trade confirmations under SEBI Circular dated 22 March 2018 - Liability to bear the losses incurred by a client in trades - challenged the Awards passed by the three Member Appellate Tribunal constituted under the Rules, Bye-laws and Regulations of National Stock Exchange of India Ltd - awarded 50% losses incurred by them towards execution of Future & Options Segment - HELD THAT:- Failure to adhere to the regulatory directives by SEBI or NSE may entail necessary disciplinary measures against the Stock Broker. However, the same would not necessarily create a liability on the stockbroker to compensate the client/investor in respect of the losses suffered in the trade transactions. In a case like the present one, where clients have authorized or have let another person to effect trades on their behalf, relied on her skills and took the risks in the volatility of the stock market, cannot later turn around and disown the trade transactions by taking a specious plea that the stockbroker did not maintain written/recorded pre-trade confirmations. The maintenance of written/recorded trade confirmations would have some significance in a case where it is proved that the client/investor had actually not given any instruction for effecting a particular trade and somebody in the office of stockbroker has unauthorisedly effected a trade. In that case, the client/investor cannot be held responsible for losses arising out of such blatantly unauthorised trades and the stockbroker would be made responsible for consequences arising out of such trades. However, in a case where client/investor specifically admits that he/she authorised another person to effect trades on his/her behalf, client/investor. In case before the Division Bench in Erach Khavar [2025 (9) TMI 185 - BOMBAY HIGH COURT] also, the appellant therein had authorised another person to effect trades in his account and the appellant has received all the contract notes and text messages. He later sought to wriggle out of consequences of such trades by disowning the same by relying on NSE Regulation 3.4.1. In the present case also, Respondent specifically admitted that they had trusted Siddhi and had allowed her to effect trades on their behalf. This is not a case where Siddhi is an unknown person to Respondents, who has effected trades in their accounts in a blatantly unauthorised manner. Therefore Respondents cannot take shelter behind regulatory directives of SEBI Circular dated 22 March 2018 and hold Petitioner responsible for recovering the losses suffered by them. The methodology adopted by the Arbitral Tribunals in not conducting any enquiry into the losses suffered by Respondents due to the alleged negligent act of the Petitioner and straightaway awarding 50% of loss suffered in the trades executed in F & O Segment is required to be deprecated. Such an approach actually is in conflict with the fundamental policy of India under Section 32(2)(b)(ii) of the Arbitration Act. Here, award of sum is not out of any contractual obligations between the parties. It is towards damages suffered due to alleged negligent conduct of Petitioner in not maintaining the pre-trade conformations. This principle therefore would not be attracted to the present case as Respondents have made no attempt to lead evidence of loss and simply claimed the entire amount of loss suffered in trades executed on their behalf. Thus, the impugned Awards are clearly unsustainable and liable to be set aside. - Petitions are accordingly allowed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether non-maintenance of pre-trade / order-placement evidence and call recordings as contemplated in the SEBI circular dated 22 March 2018, by itself, can fasten liability on a stockbroker to reimburse a client's trading losses, when trades were executed through a person whom the clients had permitted to operate their accounts. (ii) Whether arbitral fora can award a fixed proportion (50%) of alleged trading losses as 'damages/compensation' without conducting any real enquiry into proof of loss and causal attribution, and whether such an approach renders the awards vulnerable as being contrary to the fundamental policy of Indian law / suffering from patent illegality. (iii) Whether the arbitral fora's approach-treating regulatory non-compliance as determinative and proceeding on a '50-50' apportionment-made the resulting awards unsustainable and liable to be set aside. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Effect of non-compliance with SEBI circular on civil liability for trading losses Legal framework (as discussed by the Court): The Court examined the SEBI circular dated 22 March 2018 requiring brokers to execute trades only after 'keeping evidence' of the client placing the order (including telephone recording, email, logs, messages, or other legally verifiable records), and noting that where such evidence cannot be produced in exceptional circumstances, other evidence such as post-trade confirmation, receipt/payment of funds/securities, etc. may be considered. Interpretation and reasoning: The Court held that the arbitral fora had treated the broker's inability to produce call recordings / pre-trade confirmations as the primary and determinative basis to uphold the clients' claims. This approach was rejected. The Court reasoned that failure to adhere to regulatory directives may invite disciplinary/regulatory consequences, but it does not, without more, create a compensatory liability to reimburse trading losses. The Court emphasized the distinction between (a) absence of recorded pre-trade authorisation and (b) blatantly unauthorised trades (e.g., trading or selling without any consent at all), observing that regulatory non-compliance cannot be used as a 'handle' to disown trades where the clients had themselves permitted another person to place trades on their behalf and took the market risk. Conclusion: The Court concluded that mere non-maintenance of written/recorded pre-trade confirmations under the SEBI circular cannot, by itself, justify awarding trading losses to the client in a case where the clients had authorised/allowed a third person to trade for them and the dispute is essentially an attempt to shift market losses to the broker. Issue (ii): Legality of awarding 50% of alleged losses without proof, and use of 'guesswork' Legal framework (as discussed by the Court): The Court held that adjudication of such claims must follow principles governing damages/compensation, including that damages cannot be awarded without proof of loss. It noted that arbitral determination must be anchored in evidence and cannot rest on an arbitrary split. Interpretation and reasoning: The Court found the adopted '50% losses' methodology to be impermissible because the arbitral fora did not conduct any meaningful enquiry into what loss was actually proved and how it was attributable to the broker's alleged wrongful conduct. The Court rejected the justification that 'exact computation' was impossible: it held that the 'rough and ready'/guesswork principle applies only where precise quantification is genuinely impracticable after an attempt is made to prove loss, not where the claimant makes no real attempt to lead proof and the tribunal simply halves the claim. Here, the award was treated as damages allegedly arising from negligence (non-maintenance of confirmations), and therefore required proof of loss and causal nexus rather than an ad hoc apportionment. Conclusion: The Court held that awarding 50% of losses without proof and without a reasoned, evidence-based assessment is to be deprecated and renders the award vulnerable as conflicting with the fundamental policy of Indian law and suffering from patent illegality/perversity in approach. Issue (iii): Whether the awards were unsustainable and liable to be set aside Interpretation and reasoning: The Court held that the arbitral fora's core reasoning rested on an erroneous premise that regulatory non-compliance (absence of order-placement recordings/pre-trade confirmations) itself warranted compensatory relief for market losses, and additionally employed an irrational '50-50' loss apportionment without proof. Given these foundational errors, the awards were considered clearly unsustainable. Conclusion: The Court set aside the determinations of all three fora because the liability was wrongly fastened on the broker on the basis of regulatory non-compliance and because the quantum awarded (50% of losses) was not founded on proof and reasoned assessment.