JUDGMENT :

M.M.SUNDRESH, J.

Prayer in O.S.A.No.318 of 2019: Appeal filed under Section 37 of the Arbitration and Conciliation Act to set aside the order dated 06.03.2019 made in O.P.No.312 of 2018.

Prayer in O.S.A.No.319 of 2019: Appeal filed under Rule 9 of O.S.Rules r/w Section 36 of the Arbitration and Conciliation Act to set aside the order dated 06.03.2019 made in O.P.No.313 of 2018.

These two appeals have been filed by the appellant seeking to invoke Section 37 of the Arbitration and Conciliation Act, 1996 to set aside the award passed by the learned Arbitrator while dismissing the counter claim filed by the appellant and the dismissal of the applications filed invoking Section 34 of the Arbitration and Conciliation Act before the learned Single Judge.

2. The brief facts which are required for adjudication of these appeals are as follows:

2.1. The respondent in both the appeals being the husband and wife, having their respective accounts operated by them by logging in with the appellant, who is the broker trading in commodities. These accounts are being operated from time to time by the respondents. However, the Manger incharge by name Venugopal Reddy was also having private transaction with the respondents as could be seen from the documents filed by the appellant before the learned Arbitrator. This Venugopal Reddy appears to have committed fraud by defrauding many persons including the respondents. There were criminal proceedings initiated against him apart from the insolvency petition field by him. In the insolvency petition filed, the respondents were shown as creditors.

2.2. The respondents filed claim petition inter alia contending that they have lost money as the said Venugopal Reddy was working as Manager of the appellant and, therefore, on the principle governing vicarious liability, the appellant is responsible. The money was collected by Venugopal Reddy on behalf of the appellant.

2.3. The appellant contended in the counter claim and by way of counter affidavit inter alia stating that the transaction between the respondents and Venugopal Reddy were distinct and different and in the accounts operated by the respondents, actually some amount is due to the appellant. The documents have been filed to show the accounts being operated by the respondents by logging in with the appellant. The documents filed by the appellant would indicate that the said Venugopal Reddy has received hand loan from the respondents.

2.4. The learned Arbitrator though not granted the claim amount as sought for nonetheless passed an award against the appellant on the principle of vicarious liability as Venugopal Reddy received some amount from the respondents.

3. Before the learned single Judge, the appellant contended that two primary aspects have not been taken into consideration by the learned Arbitrator notwithstanding the materials placed before him. There exists a private agreement between Venugopal Reddy and the respondents and the operation of the accounts online by the respondents with the appellant. Incidentally, it is submitted that the communication dated 07.12.2016 clearly indicates that the respondents knew about the facts as contended by the appellant to the effect that there were transactions between them and Venugopal Reddy and certain amount is due to the appellant from them.

4. The learned Single Judge did not go into the said issue as it was felt that Section 34 of the Arbitration and Conciliation Act does not facilitate such an exercise. Accordingly, on the premise that the view of the arbitrator, as could be classified as either possibly or probably, there is no need to exercise the power under Section 34 of the Arbitration and Conciliation Act as the case on hand would not be amenable for such an exercise.

5. Before the learned Single Judge, for the reasons known, the respondents have chosen not to appear and the same position continues before us as well. In fact, when the matter came up for hearing on the last occasion, taking