The limited scope of interference in arbitral awards under section 34 of The Arbitration and Conciliation Act, 1996, and the importance of documentary evidence in evaluating claims.

JUDGMENT

Moushumi Bhattacharya, J. - The present application under section 34 of The Arbitration and Conciliation Act, 1996 (the Act) is against an Award dated 10th May 2016 passed by an arbitral tribunal of three arbitrators. The impugned Award upheld an award passed by a Sole Arbitrator declining relief of Rs.17,13,426/- to the petitioner (claimant in both the arbitration proceedings) on account of dues payable to the petitioner towards transactions in the stock market by the agent of the respondent trading company.

2. The petitioner had first filed a claim before the Sole Arbitrator under the By-laws, Rules and Regulations of the National Stock Exchange (NSE) and then challenged that Award before the Appellate Arbitral Tribunal under the NSE Regulations. The petitioner has challenged the Award of the Appellate Arbitral Tribunal in this application.

3. Mr. Rupak Ghosh, learned counsel appearing for the petitioner, places the relevant facts which led the petitioner to filing her claim before the Sole Arbitrator. The petitioner transferred her Demat Account to the respondent company in December 2009, the signed agreement and opening form which was dated 30th December 2009. Counsel contends that the Agreement was a fabricated document. Counsel submits that the transactions on behalf of the petitioner were in order till February 2014 and the petitioner was handed over a holding statement in February 2014 after which the petitioner instructed the respondent s agent, one Kaushik Nath, to stop all operations till 1st week of November 2014. The petitioner instructed the agent to sell some of the shares in the 1st week of November 2014 for an approximate valuation of Rs.12,45,000/-, which was reflected in the holding statement. The shares were sold as per instructions but the petitioner claims to have received only Rs.4,19,000/- with the respondent refusing to pay the balance amount, i.e. Rs.8,26,000/-. The petitioner filed a complaint dated 11th June 2015 and claimed Rs.16,47,525/- with interest at 12% per annum. Counsel submits that the account opening form had been tampered with and is inconsistent with the fact of petitioner creating an email id much later on 20th February 2013. It is also submitted that the petitioner was not put on notice of the disputed transactions between February and November 2014. Counsel relies on M.P. Power Generation Co. Ltd. vs ANSALDO Energia SPA,2018 SCCOnlineSC 385 and Associate Builders vs Delhi Development Authority, (2015) 3 SCC 49 on the need to adopt a judicial approach where there is a determination affects the rights of a citizen or leads to civil consequences as well on the importance of a court or authority applying its mind to the attendant facts for an effective adjudication.

4. Mr.Sourav Mukherjee and Mr.Binoy Chandra Dhara, learned counsel appearing for the respondent seek to sustain the impugned Award by resorting to the defence that the petitioner all along knew and had consented to the transactions and that the respondent had undertaken due diligence as a trading member at the relevant point of time. Counsel submits that there was no amount due to the petitioner. Counsel submits that the holding statement of February 2014 produced by the petitioner is a fabricated document. Counsel relies on P.R. Shah, Shares and Stock Brokers Private Limited vs B.H.H. Securities Private Limited, (2012) 1 SCC 594 on the embargo in re-examining the facts leading to the Award and substituting a possible view of the arbitrator with that of the court considering a challenge to an Award under section 34 of the Act.

5. First and foremost, the Sole Arbitrator s Award of 29th December 2015 needs to be looked into for understanding the impugned Award which is under challenge in this application. The Sole Arbitrator found that the petitioner had full knowledge of the trading made in her account and that the petitioner was unable to prove her allegation of the holding statement dated 7th February 2014 being a fo