Judgment :- 1. Thus Original Petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for brevity, “the Act”) challenging the award of the Second Respondent (Sole Arbitrator) dated 5.9.2008. 2.1. The First Respondent in the Original Petition, being a member of National Commodities and Derivatives Exchange Limited (hereinafter referred to as “the NCDEX”), has raised a dispute against the Petitioner, which was referred to the Second Respondent/Sole Arbitrator making a claim of an amount of `1,63,868.65 with interest at the rate of 24% per annum. 2.2. The Petitioner herein, who was the Respondent before the Arbitrator, has got herself enrolled as a constituent of the First Respondent-Company in its branch at Madurai on 23.3.2005 and was carrying out trading activities through the said branch. The Petitioner has deposited with the First Respondent an amount of `10,000/- on 23.3.2005 and in the course of the trading transaction, the Petitioner became due and liable to pay the amount, as stated above, and the amount has not been paid in spite of repeated requests and a demand was made on 8.9.2005. However, the Petitioner has sent a reply on 10.9.2005 denying the liability. 2.3. A dispute arose as per the arbitration clause contained in the bye-laws of the NCDEX in the month of May, 2005. However, the Application could not be filed by the First Respondent within a period of six months from the date of disputed transactions and therefore, the First Respondent has filed an Application before the High Court seeking extension of time for a period of four weeks, which was allowed by the High Court by order dated 16.11.2007 made in Application No.1856 of 2007, extending the period till 6.12.2007 to file Application for arbitration and thereafter, the Application was filed. 2.4. After the claim was received, it is seen that the NCDEX has attempted to settle the matter administratively and as per Regulation 21.6(3), the NCDEX has appointed the Second Respondent as the sole Arbitrator as per the letter dated 27.2.2008 and the NCDEX has informed the parties about the appointment of Arbitrator and fixed the date of hearing as 4.4.2008. However, time was subsequently granted by NCDEX for competing the arbitration and finalization of award up to 7.9.2008. 2.5. However, time was subsequently granted by NCDEX for competing the arbitration and finalization of award up to 7.9.2008. 2.5. It was the case of the Petitioner in the Counter Statement before the Arbitrator that she was not liable to pay any amount to the First Respondent. While admitting that she has traded through the First Respondent’s branch between 23.3.2005 and 26.4.2005, it is stated that thereafter the First Respondent’s branch suffered connectivity problem on many occasions, viz., on 23.4.2005, 25.4.2005 and 26.4.2005, and on the former two days, there was no execution of trading, except for few second, and on the latter date, the trading was partial due to the fault of the system. 2.6. It is her case that if the constituent without paying additional marginal money continues to trade, the software deployed by the trading member, viz., the First Respondent, shall be automatically disconnected on the basis that “No margin money, no trading”. Therefore, according to her, there is no question of any amount being due and payable by the Petitioner to the First Respondent and moreover, she can trade only up to `8,000/- and she cannot be made liable beyond `8,000/-. 2.7. After a prolonged enquiry and examination of witnesses, hearing the arguments, especially when the Petitioner herself was represented by her Counsel, while the First Respondent was represented by the Manager (Legal), and after cross-examination and referring to nine documents on the said of the First Respondent, the Arbitrator, having concluded that the claim of the Petitioner that there was a connectivity problem on the said three days, viz., 23.4.2005, 25.4.2005 and 26.4.2005 has not been substantiated and that there was no Complaint about the same at any point of time, has relied upon Clause (1) of the agreement (Ex.A2) by which the parties have agreed to undertake the trading risk involved in trading of the instruments by making themselves liable, found that in the absence of any proof about the connectivity problem, the contention of the Petitioner cannot be accepted. 2.8. 2.8. Considering the next contention of the Petitioner that her liability cannot exceed the margin money of `8,000/-, the same was rejected by the Arbitrator on the ground that the Petitioner has not denied the trades and in fact, she was trading with the Company without raising any objection that her transactions have exceeded the margin and granted the amount of `1,63,868.65 in favour of the First Respondent, however, rejecting the claim of interest at the rate of 24%, but granting interest at the rate of 9% per annum from the date of filing of the Arbitration Petition till the date of payment. 3. The award is assailed by the Petitioner, who was the Respondent before the Arbitrator, on various factual grounds that the material evidence of C.W.1 has been ignored; that the Arbitrator ought to have directed the representative of the First Respondent to produce the resolution of the Company, which is a vital document and the non-furnishing of such document is a violation of Section 24 of the Act and this would amount to misconduct on the part of the Arbitrator; that the Arbitrator has proceeded to decide against the Petitioner ex parte, causing grave prejudice; that the Arbitrator has erroneously fixed the onus of proof on the Petitioner, who was the respondent before the Arbitrator, while in law the First Respondent/Claimant should prove his case; that the award has been passed on total non-application of mind; and that the Arbitrator has violated Section 31(5) of the Act by not delivering a signed copy of the award. 4. It is the contention of the learned Counsel for the Petitioner that the Arbitrator has proceeded ex parte against the Petitioner. Ignoring of the material evidence, according to the learned Counsel for the Petitioner, is fatal to the award, by placing reliance on the decision in (i) Sathyanarayana Brothers (P) Ltd. v. T.N. Water Supply & Drainage Board, 2004 (5) SCC 314 ; (ii) M/s. Engineering Development Corporation v. Municipal Corporation of Delhi, 2008 (2) R.A.J. 81 (Delhi),; and (iii) Hindustan Level Ltd. v. Shiv Khullar, 5. However, there is no representation on behalf of the First Respondent. 6. However, there is no representation on behalf of the First Respondent. 6. Even though it is the contention of the learned Counsel for the Petitioner in this Petition that the Arbitrator has not given sufficient opportunity to examine the witnesses and has ultimately decided the issue ex parte, a reference to the arbitration award makes it clear that the Petitioner, who was the Respondent before the Arbitrator, has been represented through Counsel who appeared before the Arbitrator on 4.4.2008 and a counter was filed before the Arbitrator; that on 29.4.2008, the Petitioner sought time for cross-examination; that on 27.5.2008, the Petitioner Counsel has conducted cross-examination of the witnesses in part and continued the cross-examination of P.W.1 and completed the same on 5.7.2008 and the First Respondent, who was the Applicant before the Arbitrator, has reported no further evidence and thereafter, time was granted for producing the evidence on the side of the Petitioner herein on 19.7.2008 and the matter was posted on 2.8.2008 and later adjourned to 6.8.2008. In spite of it, evidence was not forthcoming from the side of the Petitioner and therefore, on hearing the argument of the First Respondent, the award came to be passed. 7. It is not as if, under the facts and circumstances of the case, the Arbitrator was not entitled to pass such award. It is not the case of the Petitioner that the conduct of the Arbitrator was doubtful or he does not possess the qualification required and it is also not the case of the Petitioner that the procedure followed by the Arbitrator is being challenged as contemplated under Section 13 of the Act. The hearing and written proceedings contemplated under Section 24 of the Act has not also been complained of by the Petitioner. On the other had, the Petitioner has extensively cross-examined the First Respondent through the Counsel and in spite of three opportunities having been given, she has not chosen to produce her witness to substantiate her case and in those circumstances, the Arbitrator has considered the claim of the First Respondent and passed the award. 8. Section 25 of the Act, which speaks about the default of a party, is as follows: “Section: 25. 8. Section 25 of the Act, which speaks about the default of a party, is as follows: “Section: 25. Default of a party.- Unless otherwise agreed by the parties, where, without showing sufficient cause,- (a) the Claimant failsto communicate his statement of claim in accordance with subsection (1) of Section 23, the Arbitral Tribunal shall terminate the proceedings; (b) the Respondent fails to communicate his statement of defence in accordance with sub-section (1) of Section 23, the Arbitral Tribunal shall continue the proceedings without treating that failure in itself as an admission of a allegations by the Claimant. (c) a party fails to appear at an oral hearing or to produce documentary evidence, the Arbitral Tribunal may continue the proceedings and make the arbitral award on the evidence before it.” Sub-section (c) to Section 25 of the Act certainly enables the Arbitrator to proceed and pass an award on the evidence which is available before it and there is absolutely no violation of any of the provisions of the Act by the Arbitrator. The Petitioner having filed Counter Affidavit, appeared through Counsel before the Arbitrator and extensively cross-examined P.W.1, if she fails to produce her witness, she cannot turn around to accuse the Arbitrator for the same. 9. The next contention of the learned Counsel for the Petitioner which deserves to be considered is about a material document, namely the authorization given to P.W.1, the Manager (Legal) of the First Respondent, who was the Applicant before the Arbitrator, stated to be a vital document, non production of which is stated to be a violation of Section 24 of the Act. For the purpose of appreciating the said contention, it is necessary to extract Section 24 of the Act, which is as follows: “Section. 24. Hearings and written proceedings.-(1) Unless otherwise agreed by the parties, the Arbitral Tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents an another materials: Provided that the Arbitral Tribunal shall hold hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held. (2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the Arbitral Tribunal for the purposes of inspection of documents, goods or other property. (3) All statements, documents or other information supplied to, or Applications made to, the Arbitral Tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.” Section 24 of the Act contemplates the method of procedure to be worked out by the Arbitrator. However, there should be oral hearing and party should be given advance notice for hearing and documents relied upon have to be communicated to the parties. On the facts and circumstances of the present case, it is not even the dispute of the Petitioner anywhere questioning about the propriety of the procedure followed by the Arbitrator. As far as giving opportunity is concerned, as stated above, the Petitioner has participated in the enquiry before the Arbitrator and cross-examined P.W.1 and even after giving three adjournments, she was not able to produce her witness and that cannot be attributed to the Arbitrator. The Petitioner having neglected and failed to perform her function cannot turn around to say that the Arbitrator has not chosen to direct P.W.1 to produce his authorization. 10. On the side of the First Respondent, the Applicant before the Arbitrator, the Authorised Signatory-S. Swaminathan has filed the statement of claim signed by him on 27.11.2007. The Petitioner has filed her Counter Statement on 3.4.2008 before the Arbitrator for the said statement of claim and nowhere she has questioned the competency of the said S. Swaminathan in filing the claim as Authorised Signatory of the First Respondent-Company. In fact, the said S. Swaminathan has filed a reply Affidavit also repudiating the Counter Statement made by the Petitioner and he has also filed a proof of Affidavit before the Arbitrator on 28.4.2008. In fact, the said S. Swaminathan has filed a reply Affidavit also repudiating the Counter Statement made by the Petitioner and he has also filed a proof of Affidavit before the Arbitrator on 28.4.2008. It is relevant to point out that the First Respondent-Company has filed an Application before this Court in A.No.1856 of 2007 seeking permission to extend the time for filing Claim Petition before the Arbitrator in which the petitioner, who was the respondent before the Arbitrator, has appeared through her counsel and P.W.1 before the Arbitrator, viz., S. Swaminathan, has filed the Affidavit and this Court, after referring to the said Affidavit, has extended the time for filing the Claim Petition before the Arbitrator. Even at that time the Petitioner has not chosen to raise any doubt about the competency of the said S. Swaminathan to represent the First Respondent-Company as its Authorised Signatory. It was thereafter when he was examined as a witness, viz., P.W.1, the Counsel for the Petitioner has extensively cross-examined him about the Board resolution authorizing him to represent the First Respondent-Company before the Arbitrator. In fact, the said S. Swaminathan has deposed “as per the Rules and Regulations, Board resolution is not required to be filed at the time of filing the Application and the same has been filed during the first hearing on 4.4.2008”. 11. In such circumstances, it is not known as to how the said document can be considered as a material and relevant document for vitiating the arbitration award. In effect, the learned Counsel wants to eschew the entire evidence of P.W.1 before the Arbitrator on the ground that the Arbitrator has not directed P.W.1 to produce the Authorization Letter from the First Respondent-Company. It is further relevant to note that even thereafter, on the merit of the individual points, the learned Counsel appearing for the Petitioner has extensively cross-examined P.W.1 before the Arbitrator. 12. In such view of the matter, there is no question of interfering with the validity of the award on the ground that the said Authorization Letter is a material evidence and therefore, by virtue of the Arbitrator not directing P.W.1 to produce the Authorization Letter, the evidence of P.W.1 is to be eschewed totally. 12. In such view of the matter, there is no question of interfering with the validity of the award on the ground that the said Authorization Letter is a material evidence and therefore, by virtue of the Arbitrator not directing P.W.1 to produce the Authorization Letter, the evidence of P.W.1 is to be eschewed totally. Certainly, the said Authorization Letter, under the factual context, can never be termed as a material and relevant document for the purpose of deciding the issue fairly and non-production of such Authorization Letter cannot, in my considered view, be held as a misconduct on the part of the Arbitrator. 13. For the above said reasons, the reliance placed by the learned Counsel for the Petitioner on the judgment of the Supreme Court in Sathyanarayana Brothers (P) Ltd. v. T.N. Water Supply & Drainage Board, 2004 (5) SCC 314 is not helpful to the Petitioner’s case at all. In that case, by relying upon the earlier judgment of the Supreme Court in K.P. Poulose v. State of Kerala, 1975(2) SCC 236 , the Hon’ble Supreme Court has held that non-furnishing of the documents, which are relevant for the purpose of deciding the issue involved, was fatal to the case of a party. The documents which were not produced were the communications regarding the objections raised by the audit in connection with the construction of the reservoir. It was in those circumstances, when the said relevant documents were not produced, the Supreme Court has observed that it was a material document in respect of the construction of the reservoir, which is the subject matter of the dispute, and therefore, held that the non-furnishing would vitiate the award. The learned Counsel for the Petitioner would vehemently rely upon paragraph (15) of the said judgment, which is as follows: “15. Learned Counsel for he Appellant has placed reliance upon a decision reported in K.P. Poulose v. State of Kerala, 1975 (2) SCC 236 to indicate that where it is a speaking award and the arbitrator fails to take note of the relevant documents or ignores the same, it vitiates the award. It was observed such documents which were ignored were material documents to arrive at a just and fair decision to resolve the controversy between the parties. It was observed such documents which were ignored were material documents to arrive at a just and fair decision to resolve the controversy between the parties. Our attention has particularly been drawn to the observations made in Paragraph 4 which reads as under: “We have been taken through all the relevant documents by the learned Counsel for both sides and we are satisfied that Ex.P-11 and Ex.P-16 are material documents to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Ex.P-11 and P-16 for the purpose of a just decision. Ex.P-11 dated 8.9.1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by audit in connection with the construction of the reservoirs.” Reliance has also been placed upon a decision reported in Sikkim Subba Association v. State of Sikkim, 2001 (5) SCC 629 , particularly to the observations made in Paragraph 12 of the decision that an award, ignoring very material and relevant documents throwing light on the controversy to have a just and fair decision would vitiate the award as it amounts to misconduct on the part of the arbitrator. The case of K.P. Poulose (supra) has also been referred to. Yet another decision on the point referred to is reported in Bharat Cocking Coal Ltd. v. Annapurna Construction, 2003 (8) SCC 154 where also it has been held that passing award ignoring the material document would amount to mis-conduct in law. In such circumstances the matter was remitted to a retired Judge of the Jhakhand High Court instead of to the named Arbitrator since only the question of law was involved and the parties had also agreed for the same.” 14. On the facts of the present case and the sequence of events narrated above, there is absolutely no reason to come to a conclusion that either P.W.1 has suppressed any material document or the Arbitrator has misconducted himself in not directing P.W.1 to produce the Letter of Authorization from the First Respondent-Company, when the First Respondent-Company itself has not raised any objection. Further, as state above, from the beginning the said Authorised Signatory of the First Respondent-Company – S. Swaminathan has filed all the Affidavits before the Arbitrator and even before that filed Affidavit before this Court for the purpose of extension of time for filing the Claim Petition and at no point of time, even in the Counter Statement before the Arbitrator, the Petitioner has raised any objection about the right of P.W.1 to represent the First Respondent-Company. In any event, it cannot be referred as a suppression of material document under Section 24(3) of the Act in order to enable this Court to interfere with the correctness of the award passed by the Arbitrator. 15. The reliance placed by the learned Counsel for the Petitioner on the decision of the Single Judge of the Delhi High Court in Hindustan Lever Ltd. v. Shiv Khullar, especially paragraph (17) of the judgment, which is as follows: “17. A commonly held belief that while considering objections under Section 34 of the Act the Court cannot look into the evidence before the Arbitrator also needs to be clarified. There is a difference in re-appreciating evidence and considering whether material evidence has been ignored. Whereas the former would be an activity prohibited while considering objections under Section 34 of the Act for the reason an Arbitrator is a chosen forum by the parties to conclude rival issues of fact between the parties, the latter would be an activity to find out whether learned Arbitrator has acted within his mandate for the reason the mandate of the Arbitrator is to decide on facts after considering all the relevant facts and not ignoring the same.” isalso of no help to substantiate the case of the Petitioner. It is not as if the Arbitrator, in the impugned award, has placed reliance on the authorization letter of the First Respondent-Company to P.W.1 and has passed the award. On the other hand, the Arbitrator has chosen to refer to various other material evidence to come to a conclusion in passing the award. The reliance placed on by the learned Counsel for the Petitioner in the judgment of the Delhi High Court in M/s. Engineering Development Corporation v. Municipal Corporation of Delhi, 2008 (2) R.A.J. 81 (Delhi) has also no application to the facts of the present case. 16. The reliance placed on by the learned Counsel for the Petitioner in the judgment of the Delhi High Court in M/s. Engineering Development Corporation v. Municipal Corporation of Delhi, 2008 (2) R.A.J. 81 (Delhi) has also no application to the facts of the present case. 16. On a reference to the award it is seen that the Arbitrator has, in fact, referred to the Individual Constituent Registration Application Form (Ex.A1), Member and Constituent Agreement (Ex.A2), Copies of the contract (Ex.A4), various exchange of notices and trade bills, etc. and has considered the claim of the Petitioner for arriving at a conclusion, by rejecting the claim of the First Respondent for interest at the rate of 24% and reducing it to 9% and looking from any angle, I am of the considered view, that there are absolutely no grounds to interfere with the award of the Arbitrator under any one of the grounds contemplated under Section 34(2) of the Act, apart from the fact that the arbitration award can never be said to be perverse, nor any misconduct can be attributed to the Arbitrator. 17. It is well settled that while deciding about the legality of the award under Section 34 (2) of the Act, it is not as if this Court should sit as an Appellate Authority to re-appreciate the evidence. What is to be decided is the manner in which the decision has been arrived at by the Arbitrator and not the decision itself by appreciation of evidence. In such view of the matter, the Original Petition fails and the same is dismissed. No costs.