Judgment The Petitioner-Original Respondent, has challenged award dated 24 September 2008, by invoking Section 34 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act). 2 The Petitioner appointed the Respondent to effect transactions on the Futures & Options Segment of National Stock Exchange of India Limited (for short, NSEIL). 3 On 22 January 2008, the Respondent as alleged squared off the outstanding positions of the Petitioner. The disputes and differences arose between the parties. The Petitioner filed a complaint against the Respondent with NSEIL. The Respondent filed a claim against the Petitioner to recover a sum of Rs.35,19,225.42 together with interest at the rate of 12% p.a.. The petitioner filed written statement and a counter claim for a sum of Rs.9,17,203.72 together with interest thereon at the rate of 18% p.a.. 4 The learned Arbitrator passed award dated 24 September 2008, thereby rejecting the counter claim filed by the Petitioner and awarded a sum of Rs.35,19,225.42 in favour of the Petitioner. Hence the present Petition. 5 The operative part of the award is as under:- “AWARD The Panel of Arbitrators in the Arbitration Matter No. F&O/M-0124/2008 between the Applicant M/s. Geojit Financial Services Ltd. (Trading Member) and the Respondent Ms. Kritika Nagpal (Constituent) give Award as under:- I) The Respondent is directed to pay the sum Rs.35,19,225.42 (Rs. Thirty five lakhs ninetee thousand two hundred twenty five & paise forty two only) to the Applicant. II) The Respondent shall pay interest @ 12% p.a. on Rs.35,19,225.42 from the date of arbitration application i.e. from April 25, 2008 till date of payment. III) The counter-claim for Rs.9,17,203.72 of the Respondent stands rejected. IV) The cost of arbitration shall be borne by the Applicant. V) There in award to other costs. VI) The Award is signed and issued in three originals. NSE may retain the stamped original and forward one original to each of the Applicant and the Respondent.” 6 It is clear from the record that the share market crashed on 18 January 2008, 21 January 2008 and 22 January 2008. The transactions were recorded on 16 January 2008 and 22 January 2008. On 22 January 2008, the margin requirement was Rs.50,82,738.76 and MTM requirement was Rs.61,06,224.60. The Respondent received a cheque of Rs.15 lacs on 23 January 2008. The transactions were recorded on 16 January 2008 and 22 January 2008. On 22 January 2008, the margin requirement was Rs.50,82,738.76 and MTM requirement was Rs.61,06,224.60. The Respondent received a cheque of Rs.15 lacs on 23 January 2008. Admittedly, the Respondent's agent/share broker on 22 January 2008, squared off the transaction without prior and due notice, as contemplated under the rules. 7 The basic requirement of margin in case of constituent defaults has been elaborated. The learned Arbitrator has noted "there is dispute concerning the amount of shortfall informed or margin call made to the Respondent. The other matters under consideration would be co-related to the main issues and include counter-claim of the Respondent." The Arbitrator referred and dealt clause 29 of the Client Agreement in question, covering the aspect of margin in derivatives trading and shortfalls in margin. We have to consider the bye-laws of NSEIL. The clauses so referred and the trade practice, apart from the clear understanding between the parties, considering their long standing relations. 8 One thing is clear that the appropriate and clear notice and demand even, in such situation, is necessary. The client, if due notice is given, would be in a position to cover the margin and/or cover the short fall by making appropriate payment and/or depositing the requisite amount. The right and the discretion so created by these agreements and the bye-laws whereby the trader, subject to above, is empowered and/or entitled to settle and/or uses its discretion, even without prior notice to the client. The power and/or discretion, therefore, so given needs to be tested from the point of view of the nature of business, trade practice and the facts and circumstances of the case. 9 It is not the only case of reasons of the Arbitral decisions and/or reasons to be looked into while testing the challenges so raised by the aggrieved parties, under Section 34 of the Arbitration Act, we have to consider the discretion, as initiated and/or exercised by the trading member. The nature of transaction and the business in question, if provides and gives sole discretion to the member, even to square off and/or sale of securities, without any reference and/or prior notice to the client as stated, just cannot be permitted to proceed without considering the basic principle of power to exercise discretions and due notice and/or intimation before taking such drastic steps. The purpose of notice/intimation is not only that the constituent should know the market situation and its law and/or assist so that an appropriate arrangement and/or deposit can be made, but also to see and protect his/her commercial interest based upon the situation of the day. 10 Admittedly, in the present case, the trading transactions were done in F & O segment on 16, 17, 21 and 22 January 2008. It is recorded by the learned Arbitral Tribunal that the market was towards down trend since 16 and at least specifically on 18, 21 and 22 January 2008 onwards. Admittedly, the Petitioner, whenever demand was made, responded immediately by depositing the amount, though in part on some occasion. But, at the same stroke specifically instructed "not to square off outstanding position in her account and assured that whatever shortfall in her account will be paid in the evening of 22nd January 2008. itself." The learned Arbitral Tribunal nowhere referred and dealt with the clear findings to show and support that the member taken effective steps to communicate the Petitioner before squaring off the account on 22 January 2008 in the evening, but failed to take note of undisputed position on record that as per their practice and understanding, the transactions were very often on and based upon the part deposit amount. In the present case, if the constituent apart from the deposit on particular date, whenever asked for, intimated/requested the Respondent not to square off the outstanding, even if any, and assured that the amount would be paid in the evening on 22 January 2008 itself; in such situation, in my view, the member ought to have given clear demand notice before taking such drastic steps, so recorded above. The learned Arbitral Tribunal, has taken inconsistent stand by overlooking the Petitioner's case and accepted the case of the Member and so also the discretionary decision to square off the account on 22 January 2008, in the morning itself. Here, there is complete breach of understanding and their own practice. Even assuming for a moment, and as recorded above that the Petitioner had knowledge about the transactions and/or volatile market, the request was made not to square off the position. Here, there is complete breach of understanding and their own practice. Even assuming for a moment, and as recorded above that the Petitioner had knowledge about the transactions and/or volatile market, the request was made not to square off the position. The member, who based upon the practice, used to demand the part or requisite amount from time to time in such situation by overlooking their own practice and without any prior intimation and/or notice taken such abrupt decision, caused great injustice apart from the loss so referred above. 11 The learned Arbitral Tribunal, however, accepted the decision so taken by the member while relying upon the clauses of the agreement. In my view, fails to take note of the basic requirement and the purpose of prior and proper notice at the relevant time. There was no payment made except so recorded, the squaring off outstanding position on 22 January 2008, in the morning, and on the apprehension of further collapse of the market, is not correct in such situation. 12 The member was fully aware of the market collapsing situation, which was admittedly commenced at least from 18 January 2008, still waited upto 21 January 2008 and took such action on 22 morning, is also without any justification. The member, one who believes and/or follows and/or rely upon those agreed terms and conditions. ought to have taken such steps after due notice immediately on the earlier occasion itself. There is nothing on record to show that why such decision was not taken early. 13 Merely because the trading members have knowledge of the market and/or they are experts of the market, still the Court under Section 34 of the Arbitration Act, needs to consider the wrong exercise of the discretion and/or the supporting reasons so given, as it goes to the root of the matter. The learned Arbitrator has confirmed the decisions given by the trading member. The challenge is basically to such discretion. Importantly, the Court needs to consider, even under Section 34 the Arbitration Act, the nature of commerce, the transaction and the trade practice of such transactions, in such stock exchange business. It is not only a question of interpretation of agreed clauses and/or the clauses so referred and relied upon, but the basic requirement of prior notice/intimation referring to the understanding and practice between the parties. It is not only a question of interpretation of agreed clauses and/or the clauses so referred and relied upon, but the basic requirement of prior notice/intimation referring to the understanding and practice between the parties. It is always noted that, every discretion so exercised by the authority and/or tribunal, the Court should not interfere with the same. As noted, in such transactions, the uncontrolled discretion so provided and given to the member and as the Arbitral Tribunal accepted the same, that in my view, required to be tested by the Court. The general approach, just cannot be accepted and/or utilized while dealing with the specialized and/or special subjects and the transactions. 14 It is relevant to note that, even under the Arbitration Act, the principle of fair and equal treatment, apart from proper and fair opportunity, are the basic foundations. If the case is made out that there was breach of principle of natural justice, in the present case, is of the same nature, and as admittedly or at least there is no finding on record to show that the notice was given before taking such action, is in my view, also falls within these principles. This cannot be overlooked by the Court. 15 If the transaction and/or the business governed and controlled by the strict terms and clauses, the Court has no option to those terms and conditions, but in view of the clauses and practice so referred above, itself means exclusive discretion of the member, which in situation like this, for want of prior notice results into the loss, the Court still cannot say that under Section 34 of the Arbitration Act, the Court should overlook the unbridled discretion so provided and/or misused by the trading member. The reasoned order, so passed by the learned Arbitrator that itself cannot be the reason to say that the discretion so exercised by the member was well within the framework of law and the record, apart from trade practice in question. The record shows contrary. 16 The counter-claim of the Petitioner was also dismissed on a foundation that the Petitioner original-Respondent had accepted the position as of end of the day on 21 January 2012. Admittedly, the shares were sold on 21 January 2008. The record shows contrary. 16 The counter-claim of the Petitioner was also dismissed on a foundation that the Petitioner original-Respondent had accepted the position as of end of the day on 21 January 2012. Admittedly, the shares were sold on 21 January 2008. The case of the Petitioner is that, they suffer loss because of squaring off the account on 22 January 2008 and that itself, as recorded above, was in breach of principle of natural justice and prior notice. The rejection of counterclaim on that basis should also goes. The Arbitrator has not given a sufficient reason while dismissing the counter-claim so referred, as the foundation of the rejection so recorded, itself on wrong presumption and assumption based upon so called discretion of the trading member. 17 In Angel Capital Angel Capital & Debt Market Limited Vs. Mr. Sharad Munot, Arbitration Petition No. 972 of 2009, dated 31 August 2012, I have observed the power of the Court to remand the matter referring to Section 34 (4) of the Arbitration Act, in the following words:- “29 This provides/permits, the Court under Section 34 of the Arbitration Act, to issue appropriate direction/order, by keeping the matter pending, to re-adjudicate and/or determine particular issue/point so that the grounds so raised for setting aside the award would be eliminated. It means, instead of remanding the matter whole and/or all issues, the Court permits and directs the Arbitral Tribunal to resume the proceedings and take such action to pass additional award and/or modify the award and/or make appropriate correction in the award. Section 33 of the Arbitration Act, also provides and permits, as per the prescribed procedure, to pass additional award and/or correct errors as contemplated under the provisions. I have already, based upon various Supreme Court Judgments and Full Bench Judgments of this Court, reiterated the issue that the Court under Section 34, can modify the award. The Arbitral Tribunal, itself, in a given case, restrict and/or award some claims and/or reject and disallow the other claims. The Court also, therefore, as settled, under Section 34 can modify the award and pass appropriate order accordingly. The Arbitral Tribunal, itself, in a given case, restrict and/or award some claims and/or reject and disallow the other claims. The Court also, therefore, as settled, under Section 34 can modify the award and pass appropriate order accordingly. The Court, however, in a given facts and circumstances, if all the issues inter-linked and inter-connected including all the claims, and when it is difficult and/or not possible to remand the matter on a particular point and/or claim, and the Claims and/or counter-claims are inter-linked and/or inter-connected, instead of remanding the matter under Section 34 (4) of the Arbitration Act on a particular issue and/or issues, needs to remand the whole matter for re-consideration, and/or retrial and/or re-hearing on all issues. The Court, under Section 34, if keeps all points open and gives an opportunity to both the parties to put their case, if necessary, even by leading additional evidence, and direct the Arbitral Tribunal to dispose of the matter within a reasonable time, this in my view, is permissible mode and mechanism under the Arbitration Act. Mere setting aside the award on this ground, would delay the proceedings further in all respects. But, if matter is remanded, the special direction to dispose of the matter, that will save the time and money of both the parties. As already recorded, the Court may issue various directions, with intention to expedite the matter, depends upon the facts and circumstances of the case, so that the Arbitral Tribunal after resuming and/or in a given case after re-constitution, may proceed with the matter accordingly. This mechanism of remand is permissible mode. It is well within the scope and power of the provisions of the Arbitration Act.” In the present case, the issues and the points so read in the claim, as well as, in the counter-claim are inter-linked and inter-connected. It is difficult to dissect. Therefore, the Court has no option but, to remand the matter for re-consideration in all aspect. 18 Therefore, taking overall view of the matter, I am inclined to pass the following order: ORDER a) The impugned award dated 24 September 2008 is set aside. b) The matter is remanded for re-consideration on all issues. c) All points are kept open. d) The Tribunal to reconsider the case after giving opportunity to all the parties. e) The matter is expedited. f) The parties to take steps accordingly. b) The matter is remanded for re-consideration on all issues. c) All points are kept open. d) The Tribunal to reconsider the case after giving opportunity to all the parties. e) The matter is expedited. f) The parties to take steps accordingly. g) The Petition is accordingly disposed of. h) There shall be no order as to costs.