Judgment : The Petitioner(original Applicant constituent) has challenged the award of sole arbitrator dated 10th October, 2008 passed in the matter of arbitration and bye-laws, Rules and Regulations of National Stock Exchange of India Ltd.( for short “NSE). 2. The Respondent is a limited company formed and registered under the provisions of Companies Act, 1956 doing the business of financial services. It provides services including DEMAT Account services with Share Broking/Trading Services(On line as well as conventional). The Respondent is a trading member of the NSE. The Petitioner is a registered customer and/or client and entered into the relevant agreement for doing trading business on NSE. 3. As there arose dispute, based upon the bye laws, Rules and Regulations, & the letters issued, the arbitration department of NSE appointed the arbitrator amongst the panels with them. There was no question of appointment of arbitrator by consent of the parties, in view of the specific bye-laws and the agreement. The parties are therefore bound by such appointment and accordingly appeared before the arbitral tribunal. The arbitration proceedings conducted by following the due procedure of law and ultimately culminated into the impugned award. 4. The operative part of the award is as under “I The claim of the Applicant Mr. Mahesh D. Changrani (Constituent) under the AM No: M-074/2008 against the Respondent M/s Religare Securities Limited (Trading Member) is rejected. II The Applicant is directed to pay the sum of Rs. 72,815/-(Rs. Seventy two thousand eight hundred fifteen only) to the Respondent as under : (a) Being the net debit balance as per para 5.27 considered as counterclaim amount in favour of the Respondent. Rs.7,76,109/- (b) Less: Credit for the value of collaterals by way of Valuation of Shares as per para 5.32 (-) Rs.7,03,294/- Net payable by the Applicant to the Respondent : Rs.72,815/- III The Respondent is directed to return 50 (fifty) shares of Grover Leasing to the Applicant in his Demat A/c whereas the other shares as stated in para 5.32 shall be retained by the Respondent against which the credit is given to the Applicant in the Award amount hereinabove. IV The cost of arbitration to be borne equally by the Applicant and the Respondent. V There is no award to interest including on the Award amount. VI There is no award to other costs and relief. VII The Award is signed and issued in three originals. IV The cost of arbitration to be borne equally by the Applicant and the Respondent. V There is no award to interest including on the Award amount. VI There is no award to other costs and relief. VII The Award is signed and issued in three originals. NSEIL may retain the stamped original and forward one original to each of the Applicant and the Respondent. 5. The Petitioner on 1st January, 2008, instructed the Respondent to square off all the transactions in his account to bring down his out standing liability to nil. The Respondent on 15th January, 2008 intimated to the Petitioners that his out standing liability as on 15th January, 2008 was Rs.22,322.10% as alleged. The Petitioner left India for vacation on 15th January 2008 and returned on 23/24th January, 2008. The Petitioner failed to produce anything on record to show that he had instructed to the Respondent to stop all transactions in the Petitioners accounts. 6. There is a clear finding given by the arbitrator that during the period 21/22nd January, 2008 there was a massive crash in the stock market resulting in losses to save creditors including Petitioners. The Respondent cannot be held responsible in any manner for such letters. All the transactions on behalf of the Petitioner was done with his knowledge and instructions. There were several meetings and discussions between the parties. The matter was referred to the arbitration proceeding. The arbitrator heard both the parties by giving full opportunities and considered the claim for recovery filed by the Petitioner and counter claim of the Respondent. 7. The arbitrator after considering the rival contentions and material placed by the parties gave the reasons that the claim of Rs. 7,55,406/-of the Applicant has worked out for the loss incurred due to transactions in nifty future between January 18,2008 and subsequently squared off up to January 21, 2008 by giving details. The petitioner admittedly not challenged the transaction of 17 & 18th January, 2008 because it were in profit. The challenge was only with regard to nifty future transaction as suffered losses, therefore to say that there were no instruction sent to respondent to do the business on his behalf is rightly rejected. There are details provided on record which shows that from time to time contract notices were sent/forwarded by the Petitioner on the given email ID. The challenge was only with regard to nifty future transaction as suffered losses, therefore to say that there were no instruction sent to respondent to do the business on his behalf is rightly rejected. There are details provided on record which shows that from time to time contract notices were sent/forwarded by the Petitioner on the given email ID. The respondent thereby, in view of the Rules, completed their part of obligation by sending contract notice from time to time. There was no objection raised with regard to the same at the relevant time. The transaction of January 18 & 21, 2008, executed under the instructions from the Applicant. The contentions that it were without authority and/or instructions has rightly been rejected by the arbitrator. The arbitrator has given detail reasons while passing the award as recorded above. 8. Learned Counsel appearing for the Petitioner has strongly relied on the video recording done by them on a national holiday pending dispute, by calling an employee of the respondent. This itself shows an undue influence and pressure on the employees of the Petitioner. Any material so collected, after the transactions were over, cannot be used to challenge the transaction in such fashion. There is no such procedure and/or practice available in these bye-laws and/or agreement between the parties. Even otherwise such recording itself in the present facts and circumstance is impermissible. The Petitioner also unable to submit the video recording at the relevant time. One cannot overlook the fact that subsequent recording of statement of any employees is of no use when the Respondent has placed the substantial material on record to show that at the relevant time they entered into the transactions, at the instructions of the Petitioner. The submission that those statement and recording supports their case of mistakes committed by one Mr. Venkatesh cannot be the reason to interfere with the findings recorded by the arbitrator. The Petitioner had admittedly received Email from the Respondent on the regular basis to clear his outstanding balance. All objections were afterthought and was just to create a false record. 9. On 4 March 2008, the amount outstanding into the account of the Petitioner after squaring off all the transactions was Rs. 7,64,325/-. The same was claimed accordingly by letter dated 31 March 2008. All objections were afterthought and was just to create a false record. 9. On 4 March 2008, the amount outstanding into the account of the Petitioner after squaring off all the transactions was Rs. 7,64,325/-. The same was claimed accordingly by letter dated 31 March 2008. The Respondent had no knowledge about the arbitration petition filed on 27 March 2008 as NSE informed about the same by letter dated 7 April 2008. The collateral shares were kept and not liquidated as the Petitioner promised to pay the outstanding dues. The Arbitrator, ultimately, granted relief to the Petitioner by taking the valuation of collateral as on 29 January 2008 and deducted the same from the counter claim of the Respondent. There is no challenge to the Award by the Respondent. The Arbitrator has dealt with the denial of the liability by the Petitioner. The transactions which took place prior to filing of the arbitration petition and arising out of the contract/transaction between the parties are well within the scope and reference of arbitration in question. Therefore, the contention that the transactions were false and incorrect and reflected in the account from January 17, 2008 and squared off upto January 21, 2008, is unacceptable. 10. Admittedly, the Petitioner was represented by the Chartered Accountant. The first meeting was held on 5 June 2008 and Award passed on 10 October 2008. So it was well within the period of six months. The Arbitrator, as clarification was needed, again hearing was held on 12 September 2008 for the same and accordingly, the Petitioner himself has filed additional affidavit on 25 September 2009. Therefore, to say that full opportunity was not given to the Petitioner is also incorrect. The Arbitral Tribunal followed all due procedure and rules and practice for conducting the arbitration. Therefore, the submission now that the Member client agreement is one sided and compulsive in nature being prescribed by the Regulatory Bodies and the concerned Exchange is one sided is also unacceptable. The parties having entered into commercial document and accordingly acted upon the same, knowing fully that the transactions are conducted. Therefore, the submission now that the Member client agreement is one sided and compulsive in nature being prescribed by the Regulatory Bodies and the concerned Exchange is one sided is also unacceptable. The parties having entered into commercial document and accordingly acted upon the same, knowing fully that the transactions are conducted. Therefore, the National Stock Exchange of India which is governed by the rules and regulations of the National Stock Exchange of India Limited and Chapter XI deals with all claims and differences and disputes between the trading members and the constituents arising out of the transactions and as the Petitioner agreed to receive contract notes in electronic form which is permissible mode and accordingly the Respondent placed on record the supporting documents regarding forwarding of contract notes, the challenge now raised by the Petitioner in this regard is also without any substance. There is no dispute that the contract notes pertaining to his transactions were forwarded on Petitioner’s email ID. He was also provided to have on line access to his account details along with on line trading facility. 11. It is relevant to note that as per the byelaws, the concerned parties nominate Arbitrators among the eligible persons as per the procedure prescribed. Therefore, naming of persons to act as an Arbitrator in order of preference, without obtaining so-call consent from the parties cannot be stated to be partial or unfair. All these allegations are false and baseless. After going through the reasons so given there is nothing to point out that the Arbitrator was impartial and not acted in judicial manner. The Arbitrator has rightly noted the selective challenge made by the Petitioner to the transactions. It shows the inconsistent and contradictory stand taken by the Petitioner. The Respondent’s action therefore cannot be faulted with specifically when the Petitioner failed to clear the dues despite several communications and promises to clear the same. The conduct of the petitioner to bring on record alleged video recording and voice recording to substantiate is also therefore rightly objected. 12. Therefore, I see there is no reason to the conclusion so arrived at by the Tribunal that the transaction of 18 January 2008 and 21 January 2008 was executed under the instructions. The conduct of the petitioner to bring on record alleged video recording and voice recording to substantiate is also therefore rightly objected. 12. Therefore, I see there is no reason to the conclusion so arrived at by the Tribunal that the transaction of 18 January 2008 and 21 January 2008 was executed under the instructions. Further the finding that the Petitioner is liable to pay a sum of Rs.7,76,109/-without the delayed payment charges which was arrived on the basis of details given by the Respondent and after affecting the credit adjusted the amount from the amount due, as referred in paragraph 5.32 of the award and also the finding that the share should have been disposed of at the earliest. The direction to return 50 shares of Gorver Leasing also needs no interference. 13. Resultantly, the Petition is dismissed. The award so passed is maintained. There shall be no order as to costs.