2003 (2) TMI 395 - HC - Companies Law

Issues Involved:
1. Whether the dispute between the petitioner-company and respondent No. 5 can be referred to arbitration.
2. Whether there exists an arbitration agreement between the petitioner-company and respondent No. 5.
3. Applicability of the Securities Contracts (Regulation) Act, 1956, and the National Stock Exchange (NSE) Bye-laws and Regulations.
4. Limitation period for referring disputes to arbitration.
5. Jurisdiction of the courts and arbitration forum.
6. Whether the NSE is a 'State' under Article 12 of the Constitution.

Issue-wise Detailed Analysis:

1. Whether the dispute between the petitioner-company and respondent No. 5 can be referred to arbitration:
The court upheld the learned single Judge's decision that the dispute could be referred to arbitration at the instance of the constituent of a trading member. The petitioner-company, a registered Stock Broker and trading member of NSE, had disputes arising from transactions with respondent No. 5, a customer. The court emphasized that the relationship between the broker and its customer is governed by the Securities Contracts (Regulation) Act, 1956, and the NSE Bye-laws and Regulations.

2. Whether there exists an arbitration agreement between the petitioner-company and respondent No. 5:
The court noted that Regulation 4.3.1 of the NSE mandates that every trading member must enter into an agreement with each of its constituents, including an arbitration clause as specified in 'Annexure-3'. Even if such an agreement was not executed, the responsibility of the trading member remains intact, implying a deemed arbitration agreement. Therefore, the court concluded that there exists a deemed arbitration agreement between the petitioner-company and respondent No. 5.

3. Applicability of the Securities Contracts (Regulation) Act, 1956, and the NSE Bye-laws and Regulations:
The court highlighted that the Securities Contracts (Regulation) Act, 1956, aims to regulate transactions in securities, and stock exchanges are recognized under this Act. The NSE Bye-laws and Regulations, framed under this Act, govern the relationship between brokers and their clients. Chapter X and XI of the NSE Bye-laws specifically deal with the subject of arbitration and the obligations of trading members. The court emphasized that these provisions are binding on the trading members and their constituents.

4. Limitation period for referring disputes to arbitration:
The court acknowledged that Bye-law 3 of Chapter XI of the NSE Bye-laws prescribes a six-month limitation period for referring disputes to arbitration. However, the court held that the question of whether the dispute was raised within this period could be addressed by the arbitrator. The court referred to precedents where the issue of limitation was considered a mixed question of fact and law, best decided by the arbitral forum.

5. Jurisdiction of the courts and arbitration forum:
The court dismissed the petitioner's argument regarding the forum clause, which stated that the contract was subject to the jurisdiction of the courts in Mumbai. The court clarified that this clause pertains to the jurisdiction of courts but does not negate the arbitration agreement. The court reiterated that the dispute must be referred to arbitration as per the NSE Bye-laws and Regulations.

6. Whether the NSE is a 'State' under Article 12 of the Constitution:
The court did not delve into the question of whether the NSE is a 'State' under Article 12 of the Constitution, stating that it was not necessary for the disposal of the present case. The court left this question open for consideration in an appropriate case in the future.

Conclusion:
The court concluded that the learned single Judge's decision was justified, affirming that there exists a deemed arbitration agreement between the petitioner-company and respondent No. 5. The petitioner-company is bound by the NSE Bye-laws and Regulations, which mandate arbitration for disputes arising from transactions between trading members and their constituents. The appeal was dismissed with no order as to costs.

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