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TMI Blog2006 (11) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... d him that he would be straight away dealing in respect of the petitioner s pending positions and if any consequential losses should occur, the same would be taken of by the first respondent. Thus the petitioner was prevented from trading resulting the petitioner suffering a loss of Rs. 4.50 lakhs. It is the further case of the petitioner that the first respondent charged exorbitant brokerage for the petitioner when compared to others and the first respondent was due to pay a sum of Rs. 80,000 to the petitioner towards charging over brokerage. The petitioner also suffered mental agony as he was not permitted to trade and he quantified the same at Rs. 1,00,000. Therefore he made a demand to the first respondent on 17-9-1996, for a sum of Rs. 5,50,000 together with a sum of Rs. 80,000 being the excess brokerage charged by the first respondent. After receipt of the letter dated 17-9-1996, the first respondent sent a notice on 8-11-1996, demanding a sum of Rs. 3,98,376.70 together with interest at 24 per cent, alleging the same to be the dues payable by the petitioner. The petitioner by reply dated 13-11-1996, informed counsel of the first respondent that there is no dispute which warr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence Application No. 1580 of 2000, was dismissed. It is also brought to my notice, the appeal against the said order in O.S.A. No. 173 of 2001, filed was also dismissed. 5. The first respondent entered appearance and filed a counter statement. It is stated by the first respondent that the appointment of the second respondent as arbitrator by the third respondent is in accordance with the contract and bye-laws of the third respondent and the second respondent is not an officer of the third respondent, but he is an independent arbitrator. As per the contract itself the arbitration shall be in accordance with the by-laws and the courts in Mumbai would have exclusive jurisdiction. The petitioner having agreed to such a contract cannot now complain and insist that the arbitration venue should have been in Chennai only. 6. Heard both learned counsel for the petitioner and learned counsel for respondent Nos. 1 and 3. I have also gone through the documents and the judgments referred to by them in support of their submissions. 7. I have considered the rival submissions carefully and the two decisions relied on by the first respondent. 8. A plain reading of the award would m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract Note No. 2608, settlement No. 2 for the period from 29-5-1996, to 4-6-1996. The transaction is in respect of various shares, viz., Knoll Pharma (Boots) Pharmaceuticals, K.C. Pharma Ltd. and S and S Power. The contract note is issued by member acting for constituent as brokers and agents and is subject to the jurisdiction of the courts in Bombay ; ( ii )Second contract note No. 2608, settlement No. 24, dated 12-6-1996 to 18-6-1996, the same was in respect of the shares of State Bank of India; ( iii )The third contract note is bearing No. 3276, settlement No. 25, and covers the period from 19-6-1996 to 25-6-1996. The same is in respect of shares of all 3 lots of Shakti Sugars and one lot of TISCO. It is pertinent to note that all the notes bear the signature of the...( sic ) whose genuineness has not been challenged. 24. The perusal of the contract notes as well as the attendant circumstances will justify the conclusion that an arbitration agreement has come into existence. An arbitration agreement is in writing if it is contained in : ( a )a document signed by the parties; ( b )an exchange of letters, telex, telegrams or other means on telecommunication which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use for referring to arbitration in the agreement. 15. It only the petitioner bona fide questioned the existence of the arbitral agreement, then he ought to have appeared before the second respondent arbitrator and filed an application under section 16(2) and (3) of the Act, 1996. Therefore the petitioner cannot assail the award on the ground that there is no valid arbitration agreement. 16. Insofar as the question of limitation aspect is concerned, the second respondent arbitrator considered this question and framed an issue for which he rendered the finding as follows : "27. Issue No. 3. That takes me to the consideration of the next issue, viz., whether the claim in dispute has been barred by limitation. In this respect, the case of one respondent is that the period of limitation for making an application for arbitration is 90 days. According to the respondent, the said statutory period of 90 days has to be reckoned from the date on which the alleged default has occurred. In the instant case, the constituent was stopped from doing any trading with effect from 6-9-1996, in the midst of settlement No. 36 of 1996 (ending on 10-9-1996) and if any debit existed, as clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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