P.R. Shah Shares & Stock Brokers (P)Ltd vs M/S. B.H.H. Securities (P) Ltd. & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9238 OF 2003

P.R. Shah, Shares & Stock Broker (P) Ltd. ... Appellant

Vs.

M/s. B.H.H. Securities (P) Ltd. & Ors. ... Respondents

J U D G M E N T

R.V. RAVEENDRAN, J.

The appellant and the first respondent are

members of the Mumbai Stock Exchange, the third

respondent herein (`Exchange' for short). The

constitution, management and dealings of the Exchange

are governed by the Rules, Bye-laws and Regulations of

the Exchange. The Rules relate to the constitution and

management of the Exchange. The Bye-laws regulate and

control the dealings, transactions, bargains and

contracts of its members with other members and non-

members. The Regulations contain the detailed procedure

2

regarding the various aspects covered by the Bye-laws.

Though the Rules, Bye-laws and Regulations of the

Exchange were not made under any statutory provision,

they have a statutory flavour. Bye-laws 248 to 281D

provide for and govern the arbitration between members

and non-members and Bye-laws 282 to 315L provide for

and govern the arbitration between members of the

Exchange.

2. The first respondent raised and referred a

dispute against the second respondent and the appellant

under the Rules, Bye-Laws and Regulations of the Mumbai

Stock Exchange on 29.8.1998 (Arbitration Reference

No.242/1998) seeking an award for a sum of `

36,98,384.73 with interest at 24% per annum on `

35,42,197.50. In the said Arbitration Reference, the

first respondent alleged that appellant and second

respondent are sister concerns with Ms. Kanan C. Sheth

as a common Director; that Ms. Kanan C. Sheth

approached the first respondent to get the carry

forward sauda in respect of 50,000 shares of BPL and

15,000 shares of Sterlite Industries Ltd. transferred

with the first respondent on behalf of the second

3

respondent which was outstanding with the appellant;

that in pursuance of it, on 4.6.1998, the first

respondent got the sauda of 15,000 shares of BPL and

15,000 shares of Sterlite transferred to its account

through a negotiated deal which is commonly known as

`all or none'; that in respect of the said

transactions, the first respondent prepared, issued and

delivered the contract and bill in favour of second

respondent [Contract No. F.11/4/002 dated 4.6.1998 and

Bill No.A/11/0236 dated 11.6.1998 for ` 1,07,30,400/-

and Bill No.A.11/0236 dated 11.6.1998 for

`15,50,670/-]; that as the said amount remained due,

the first respondent approached the appellant and

second respondent for clearing the said dues; that

after several demands, the appellant issued a credit

kapli (Credit Slip No.49147 dated 11.6.1998) for

payment of `13 lakhs to first respondent along with a

copy of the balance-sheet (Form No.31) for settlement

(A11/98-99 for ` 13 lakhs); that the said kapli was

rejected by the Exchange; that the first respondent,

therefore, immediately approached the appellant and

second respondent and demanded a cheque for the said

4

amount of ` 15,50,670/-; that in that behalf, the

appellant issued cheque (No.992090 dated 11.6.1998) for

` 13 lakhs leaving a balance of `250,670/-; that

thereafter prices of the said scripts were falling down

and the first respondent requested the appellant and

second respondent to get the said souda re-transferred

to their account; that they failed to do so, but kept

on assuring that there was nothing to worry; that

ultimately, at the request of the appellant and second

respondent, the souda of 15000 shares of Sterlite was

squared by selling the said shares and in respect of

the squaring up of the said souda, a bill dated

19.6.1998 for ` 23,89,610.50 was raised by the first

respondent for the amount due by appellant and second

respondent; that when the first respondent demanded

from appellant and second respondent the amounts due;

they paid to the first respondent a sum of ` 4.5 lakhs

in cash on 18/19.6.1998; that as the souda for the

15,000 shares of BPL still remained outstanding despite

requests of the first respondent to square up the same,

the first respondent carried forward the said 15,000

shares of BPL to Settlement No.13 and raised a bill

5

dated 26.6.1998 showing ` 8,09,850/- as due to the

first respondent; and that the said carry forward

purchase of 15,000 shares of BPL was again brought

forward to Settlement No.14 on 22.6.1998 and at the

request of appellant and second respondent, the said

outstanding purchase was sold on 24.6.1998 and

25.6.1998 and in that behalf, a sum of ` 5,42,065/-

became due vide bill dated 1.7.1998. According to first

respondent, all the bills were drawn on second

respondent, as required by the appellant, as the

contract dated 4.6.1998 was in the name of second

respondent; that Ms. Kanan C. Sheth Director of

appellant and first respondent accepted the said bills

assuring payment and both were jointly and severally

liable to pay the amounts due.

3. The first respondent also alleged in the

arbitration reference claim that in view of the non-

payment of the amounts due, it wrote a letter dated

2.7.1998 to the Executive Director of the Exchange to

prevail upon and direct the appellant and second

respondent to pay the amount due, but in spite of the

Exchange forwarding a copy of the said letter to

6

appellant and second respondent, the amount remained

due; that therefore, the Executive Director of the

Exchange through its Investors Service Cell permitted

the first respondent to file an arbitration claim

against appellant and second respondent. As a sum of `

35,42,197.50 remained due in spite of demands by adding

interest, the total sum due as on 29.8.1998 was `

36,98,384.73.

4. Both the second respondent and the appellant

filed their objections dated 3.3.1999 urging several

common grounds with identical wording which, according

to the first respondent, showed that the appellant and

the second respondent were colluding with each other,

apart from the fact that they had two common Directors.

In its statement of objections, the appellant contended

that the Arbitral Tribunal of the Exchange had no

jurisdiction to enter upon the reference for want of a

contract and want of arbitration agreement between the

first respondent and the appellant. The appellant also

denied that the transaction between the first

respondent and second respondent was carried out by the

first respondent, for and on behalf of the appellant

7

and under instructions from the Director of the

appellant. The appellant contended that the first

respondent had made a claim based on fabricated

documents. It was also contended that the arbitration

reference was bad in law on account of misjoinder of

parties and misjoinder of causes of action. It was

submitted that the appellant was a member of the

Exchange and the second respondent was not a member of

the Exchange and the Exchange had a different set of

Arbitration Rules governing arbitration in regard to

disputes between members and arbitration in regard to

disputes between member and a non-member. The appellant

also contended that the sum of ` 13 lakhs paid by it to

the first respondent by cheque dated 11.6.1998, was not

an amount paid in connection with the aforesaid

transaction, but was a loan advanced by the appellant

to the first respondent.

5. The disputes were heard by a three-member Arbitral

Tribunal consisting of Justice D.B. Deshpande, Mr.

Hemant V.Shah and Mr. Sharad Dalal as members. The

arbitral tribunal called upon the appellant to produce

its souda sheets of the dates on which the transactions

8

took place as alleged by the first respondent but the

appellant stated that they could not produce those

sheets as their computers were not in a working

condition. When the Arbitral Tribunal enquired whether

there were any documents to show that ` 13 lakhs was

advanced as a loan to first respondent (as contended by

the appellant), the appellant informed the Arbitral

Tribunal that there were no documents to show that it

was a loan.

6. The Arbitral Tribunal made an award dated

12.10.1999. The majority (Mr. Hemant V.Shah and Mr.

Sharad Dalal) held that the transaction had taken place

as alleged by the first respondent and therefore the

appellant and second respondent were liable for the

amounts claimed. The third arbitrator, in his minority

view, while agreeing with the other two arbitrators

that the claim against second respondent as claimed

deserved to be allowed, held that the claim against the

appellant ought to be rejected as the Arbitral Tribunal

appointed by the Exchange had no jurisdiction to hear

and decide the first respondent's claim against the

appellant and the first respondent should approach the

9

proper forum seeking relief against the appellant.

Therefore, the Arbitral Tribunal made an award as per

the decision of the majority holding that the first

respondent was entitled to recover ` 36,98,384.73 from

second respondent along with interest at 18% per annum,

as demanded, from 4.6.1998 till realization with a

further direction that if the second respondent failed

to pay the said amount along with interest, then the

entire amount or the shortfall amount, if any, shall be

made good by the appellant. In effect, there was an

unanimous award for the sum of ` 36,98,354.73 with

interest at 18% from 4.6.1998 to the date of payment

against the second respondent; and in regard to the

appellant, the majority held the appellant was liable

to pay if second respondent did not pay the amount,

whereas the third arbitrator held that the Arbitral

Tribunal could not arbitrate the dispute with reference

to appellant.

8. The second respondent did not contest the award

nor pay the amount. The appellant filed an application

under section 34 of the Arbitration and Conciliation

Act, 1996 (`Act' for short) challenging the award dated

10

17.10.1999. A learned Single Judge of the Bombay High

Court after exhaustive consideration, dismissed the

said application. Dealing with the contention that in

an arbitration under Bye Law No.248 in regard to a

dispute between a member (first respondent) and a non-

member (second respondent), there cannot be an award

against a member (appellant), on the ground that Bye

Law 248 did not apply to a dispute between two members,

the learned Single Judge held as under :

"If, in a dispute between a member and non-member an incidental or connected claim against another claim cannot be referred for arbitration under Bye-law 248 and the Claimant is compelled to resort to two proceedings before different fora, then the possibility of multiplicity of findings at variance with each other by different fora cannot be ruled out. In my view it would be most undesirable to adopt a construction which would bring about the possibility of two fora reaching different conclusions where the cause of action is based on same set of facts. As noted above, the two fora are differently constituted and such a possibility cannot be ruled out. In the circumstances, I am of the view that a claim against the member can be entertained under Bye-law 248 where the said claim is incidental to or connected to a claim against a non-member. I am of the view that the claim made by the BHH in the present case is such a claim."

The intra-court appeal filed by the appellant was

dismissed by a Division Bench of the Bombay High Court

by the impugned judgment dated 16.9.2002. The said

decision is under challenge in this appeal by special

11

leave.

9. The following three contentions were urged by the

appellant :

(i) Under Bye Law 248, there can be arbitration only

in regard to a dispute between a member and a non-

member. A dispute between two members will have to be

decided under Bye Law 282. The constitution of the

Arbitral Tribunal, the procedure followed and remedies

available were completely different in regard to a

claim of a member against a non-member and claim of a

member against another member. Therefore, there could

not be a single arbitration in regard to a claim of a

member against a non-member and another member.

(ii) The Arbitral Tribunal ought to have held that

there was no contract between first respondent and that

the appellant and the claim of the first respondent

against the appellant was based on fabricated

documents.

(iii) The Arbitral Tribunal had passed the award by

making use of their personal knowledge in regard to the

transactions and not on the material on record before

them and therefore the award was vitiated.

Re : Contention (i)

12

10. At the outset, it should be noticed that the

arbitration in this case is not an ad hoc arbitration

under an arbitration agreement executed between the

parties, but was an institutional arbitration under the

Bye Laws of the Exchange. All claims, differences,

complaints and disputes between two members in relation

to any bargain, dealing, transaction or contract is

arbitrable by virtue of the parties being members of

the Exchange and there is no need for a separate

arbitration agreement. In fact, the question whether

there was any such bargain, dealing, transaction or

contract between members is itself a question that was

arbitrable, if there was a dispute. We may in this

behalf refer to the relevant Bye-Laws. Bye-law 248

provides for reference to arbitration of any dispute

between a member and non-member. Clause (a) thereof

relevant for our purpose is extracted below :

"All claims (whether admitted or not) difference and disputes between a member and a non-member or non- members (the terms `non-member' and `non-members' shall include a remisier, authorized clerk, a sub- broker who is registered with SEBI as affiliated with that member or employee or any other person with whom the member shares brokerage) arising out of or in relation to dealings, transactions and contracts made subject to the Rules, Bye-laws and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their

13

construction, fulfillment or validity or in relation to the rights, obligations and liabilities or remisiers, authorized clerks, sub-brokers, constituents, employees or any other persons with whom the member shares brokerage in relation to such dealings, transactions and contracts shall be referred to and decided by arbitration as provided in the Rules, Bye-laws and Regulations of the Exchange."

Arbitration between members of the Exchange is provided

for in Bye Law 282 which is extracted below :

"All claims, complaints, differences and disputes between members arising out of or in relation to any bargains, dealings, transactions or contracts made subject to the Rules, Bye-laws and Regulations of the Exchange or with reference to anything incidental thereto (including claims, complaints, differences and disputes relating to errors or alleged errors in inputting any data or command in the Exchange's computerized trading system or in execution of any trades on or by such trading system) or anything to be done in pursuance thereof and any question or dispute whether such bargains, dealings, transactions or contracts have been entered into or not shall be subject to arbitration and referred to the Arbitration Committee as provided in these Bye-laws and Regulations."

11. The appellant contends that as the provisions

for arbitration are different in regard to a dispute

between a member and a non-member and in regard to a

dispute between two members, there cannot be a common

arbitration in regard to a claim or dispute by a member

against another member and a non-member. It is pointed

out that in regard to the arbitration in the case of a

non-member, the reference is to three arbitrators, each

party appointing one arbitrator and the Executive

14

Director of the Exchange appointing the third

arbitrator, one of the three arbitrators being a non-

member (vide Bye Law 249). On the other hand, in the

case of a dispute between a member with another member,

the matter is referred to the Arbitration Committee of

the Exchange and the said Committee will appoint a

three member Tribunal, known as the lower Bench (vide

Bye Law 285); and in regard to such arbitration between

a member and another member, an appeal is available

from the lower bench of Arbitration Committee to the

Arbitration Committee constituted by the governing

Board. In the case of a dispute between a member and a

non-member, no such institutional appeal is available.

The appellant contends that the valuable right of

appeal was denied by holding a joint arbitration

against appellant and second respondent.

12. Reliance is placed on the decision of this Court

in Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya &

Anr. [2003 (5) SCC 531] wherein this Court held that

where a suit is commenced in respect of a matter which

falls partly within the arbitration agreement and

partly outside and which involves the parties, some of

15

whom are parties to the agreement while some are not,

Section 8 of the Act was not attracted and the subject-

matter of the suit could not be referred to

arbitration, either wholly or by splitting up the

causes of action and the parties. The decision in

Sukanya Holdings will not apply as we are not concerned

with a suit or a situation where there is no provision

for arbitration in regard to some of the parties.

13. In this case, the first respondent had a claim

for ` 36,98,354.73 jointly against second respondent

and the appellant. According to the first respondent,

it entered into the transaction with second respondent

on the instructions of the appellant and on the

understanding that the appellant will also be liable

and in fact, the appellant accepting its liability, had

also paid ` 13 lakhs as part-payment. It is not

disputed that appellant and second respondent were

closely held family companies managed by the same

person (Ms. Kanan C. Sheth). According to appellant the

share holdings in appellant was Kanan C. Seth : 105,000

shares, Chetan M. Sheth : 45000 shares and Jasumati

P.Shah: 150,000 shares and the shareholdings in second

16

respondent company was Kanan C.Sheth: 100 shares and

Chetan M. Sheth: 100 shares.

14. If A had a claim against B and C, and there was an

arbitration agreement between A and B but there was no

arbitration agreement between A and C, it might not be

possible to have a joint arbitration against B and C. A

cannot make a claim against C in an arbitration against

B, on the ground that the claim was being made jointly

against B and C, as C was not a party to the

arbitration agreement. But if A had a claim against B

and C and if A had an arbitration agreement with B and

A also had a separate arbitration agreement with C,

there is no reason why A cannot have a joint

arbitration against B & C. Obviously, having an

arbitration between A and B and another arbitration

between A and C in regard to the same claim would lead

to conflicting decisions. In such a case, to deny the

benefit of a single arbitration against B and C on the

ground that the arbitration agreements against B and C

are different, would lead to multiplicity of

proceedings, conflicting decisions and cause injustice.

It would be proper and just to say that when A has a

17

claim jointly against B and C, and when there are

provisions for arbitration in respect of both B and C,

there can be a single arbitration. In this case though

the arbitration in respect of a non-member is under

Bye-law 248 and arbitration in respect of the member is

under Bye Law 282, as the Exchange has permitted a

single arbitration against both, there could be no

impediment for a single arbitration It is this

principle that has been applied by the learned Single

Judge, and affirmed by the division bench. As first

respondent had a single claim against second respondent

and appellant and as there was provision for

arbitration in regard to both of them, and as the

Exchange had permitted a common arbitration, it is not

possible to accept the contention of the appellant that

there could not be a common arbitration against

appellant and second respondent.

Re : Contention (ii)

15. A court does not sit in appeal over the award of

18

an arbitral tribunal by re-assessing or re-appreciating

the evidence. An award can be challenged only under the

grounds mentioned in section 34(2) of the Act. The

arbitral tribunal has examined the facts and held that

both second respondent and the appellant are liable.

The case as put forward by the first respondent has

been accepted. Even the minority view was that the

second respondent was liable as claimed by the first

respondent, but the appellant was not liable only on

the ground that the arbitrators appointed by the Stock

Exchange under Bye Law 248, in a claim against a non-

member, had no jurisdiction to decide a claim against

another member. The finding of the majority is that the

appellant did the transaction in the name of second

respondent and is therefore, liable along with the

second respondent. Therefore, in the absence of any

ground under section 34(2) of the Act, it is not

possible to re-examine the facts to find out whether a

different decision can be arrived at.

Re : Contention (iii)

16. The appellant contends that the arbitration had

used personal knowledge to decide the matter. Attention

19

was drawn to the following observation in the award by

the majority :

"Also, it is known fact which is known to the arbitrators that as per the market practice such kind of transactions of one Broker takes place with another Broker either in their own name or in their firm's name or in the name of different entity which is also owned by the member." Same way these transactions are done by respondent no.2 (appellant herein) in the name of respondent no.1 (second respondent herein)."

An arbitral tribunal cannot of course make use of their

personal knowledge of the facts of the dispute, which

is not a part of the record, to decide the dispute. But

an arbitral tribunal can certainly use their expert or

technical knowledge or the general knowledge about the

particular trade, in deciding a matter. In fact, that

is why in many arbitrations, persons with technical

knowledge, are appointed as they will be well-versed

with the practices and customs in the respective

fields. All that the arbitrators have referred is the

market practice. That cannot be considered as using

some personal knowledge of facts of a transaction, to

decide a dispute.

Conclusion

17. In view of the above, we find no reason to

interfere with the judgment of the High Court and the

20

appeal is accordingly dismissed.

....................J. (R.V. Raveendran)

New Delhi; ....................J. October 14, 2011. (A.K. Patnaik)