OD-5 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE APO/8/2021 WITH AP/641/2016 SIKHA BASU -VS-

BMA WEALTH CREATORS LIMITED BEFORE:

The Hon’ble JUSTICE DEBANGSU BASAK -AND-

The Hon’ble JUSTICE MD. SHABBAR RASHIDI For the Appellant : Mr. Rupak Ghosh, Adv.

Mr. Ayan Dutta, Adv.

Mr. Ratul Das, Adv.

Mr. Abhijit Sarkar, Adv.

Ms. Abhipiya Srakar, Adv.

For the Respondent : Mr. Varun Kothari. Adv.

Mr. A. Agarwalla, Adv.

Ms. Priyanka Garain, Adv.

HEARD ON : 27.01.2026 DELIVERED ON : 27.01.2026 DEBANGSU BASAK, J.:-

1. Appeal is at the behest of a claimant in an arbitration proceeding.

2. Appeal is directed against the judgment and order dated June 26, 2020 passed in AP/641/2016.

3. By the impugned judgment and order, learned Single Judge, dismissed a challenge launched by the appellant to the award dated May 10, 2016 passed by the arbitral Tribunal of three Arbitrators.

4. Learned Advocate appearing for the appellant submits that, the appellant opened a demat account with the respondent for the purpose of trading in shares and securities in the stock market. He submits that, there were transactions in such demat account which was authorized by the appellant. He draws the attention of this Court to a period from February 7, 2014 till November 1, 2014 and submits that, the appellant did not authorize the respondent to undertake any trade in the demat account during this period. Nonetheless, the respondent indulged in unauthorised trade. This unauthorized trade caused loss to the appellant. Upon the appellant coming to know of such unauthorized trade taking place, proceedings under the Arbitration and Conciliation Act, 1996 were undertaken as was mandated under the relevant Rules governing the transactions of the National Stock Exchange.

5. Learned Advocate appearing for the appellant refers to the arbitration agreement between the parties. He submits that, it was a two-tier arbitration process. In both the tiers, the appellant was unsuccessful. He refers to the first award which was published on December 29, 2015. He submits that the first award proceeds on the basis that Electronic Contract Notes (ECNs) were submitted with the arbitral Tribunal. He refers to a minutes of the first arbitral Tribunal dated September 24, 2015. He submits that, the portion with regard to the ECNs being produced by the respondent before the arbitral Tribunal was scored out. He then refers to the first award dated December 29, 2015 and submits that, the arbitral Tribunal rendering the first award proceeded on the basis that the ECNs were produced at the arbitral proceeding. He submits that the ECNs were never produced, not even as on date.

6. Referring to the counter statement of defence filed by the respondent in the arbitration proceedings, learned Advocate appearing for the appellant submits that, although in such counter statement of defence, it was averred by the respondent in paragraph 10(h) that, such ECNs were enclosed as Annexure-E but such ECNs were never annexed to the statement of defence. In fact, the ECNs never saw the light of the day till date.

7. Learned Advocate appearing for the appellant submits that, since, both the arbitral Tribunals as also the learned Trial Judge proceeded on the basis of a material which did not exist on record, the entire findings by all the three fora cannot be sustained.

8. Learned Advocate appearing for the respondent relies upon 2024 SCC OnLine SC 2632 (Punjab State Civil Supplies Corporation Limited and Another vs. Sanman Rice Mills and Others) for the proposition that, a Court exercising jurisdiction under Section 37 of the Act of 1996 is required to infer as to whether, the Court exercising power under Section 34 of the Act of 1996 did so correctly or not.

9. In the facts and circumstances of the present case, he submits that no case for interference made out by the appellant.

10. Learned Advocate appearing for the respondent draws the attention of the Court to the statement of defence submitted by the resp