TaxTMI 
TaxTMI 
2012 (10) TMI 1198
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....nged 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. 2. 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 20th 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 12th September, 2008, the trading terminal and back office software provided to the petitioner by the respondent was illegally blocked by the respondent. 3. On 1....
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.... grant inspection of documents to the petitioner. Vide its letter dated 13th 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 16th 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 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. 9. 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....
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....f 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 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 against 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 public policy of India. (d) The arbitral tribunal as well as appellate bench did not decide the application dated 25th 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 pr....
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.... (2) Bom. C.R. 884 (8) Ispat Industries Ltd. Vs. Baby Samuel & Co. 2009(2) Bom. C.R. 784 (9) Commissioner of Income Tax Vs. Qatar Airways (2011) 332 ITR 253 (Bom) (10) State Bank of Saurashtra Vs. Ashit Shipping Services (P) Ltd. (2002) 4 SCC 736 (11) Rajendar Singh Verma Vs. Lieuenant Governor (NCT of Delhi) and Ors. (2011) 10 SCC 1 15. 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. (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 ....
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....its claim on the basis of the information and record available 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. (k) The contract note executed by the respondent categorically record agreement that such contracts were subject....
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....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 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 peti....
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....equity, both the tribunal has allowed the counter claim which is inconsistent, unconscionable and unreasonable. 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 in....
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....tted 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....
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.... 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 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 25th November, 2010 was not decided by the arbitral tribunal or by the appellate bench. 26. 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....