Judgment The Petitioner who is a constituent, entered into a member-client agreement on 21 August 2007. The business was carried out accordingly in the F & O segment since then. The necessary agreements/documents also includes communications through the internet and telephone. The Petitioner has also acknowledged and signed the list disclosure documents which can be stated as “KYC”. The Unique Code for facilitating trade on petitioner’s Account was also provided. The Petitioner obtained /received contract notes and bills in electronic form and permitted the Respondent to transfer the documents at the email address provided. The last business was carried out on 19 May 2009. All the necessary contract notes and bills were transferred accordingly. The Petitioner received the same and never raised objection about these transactions. 2 Based upon the market position of 18 May 2009 and as the margin payment obligation whereof `17,18,353.91/-and as the Petitioner, in spite of repeated request by the Respondent, unable to maintain the margin money and/or supply margin money. Therefore, in view of the trade practice and the contract, the Respondent has squared off the account on 19 May 2009, as provided and mentioned in the claim and as considered by the Arbitrator. In view of the above, an amount of `1,90,070.29 was due and payable. On 16 November 2009, therefore, the amount due was Rs.2,00,994.57/-. The Petitioner failed to make the payment. There was no security or collateral lying in the account of the Petitioner, therefore, the demand was made on 8 July 2009. There was no reply and/or payment made. Therefore, the Arbitrator after considering the material placed on record, as well as, evidence so laid, apart from the various Rules and clauses of the documents and byelaws and by apprising even the facts on record, awarded the claim, in my view, rightly against the Petitioner. 3 The submission that the Respondent never asked for specific amount on 18 May 2009 and therefore there was no question of squaring off the account on 19 May 2009 is without any substance. The Arbitrator on the contrary based upon the contract notes and ledger entries and communications as recorded in the evidence and the communications which are recorded and are part of the record, and he/she rightly came to the conclusion that the default was on the part of the Petitioner. The Arbitrator on the contrary based upon the contract notes and ledger entries and communications as recorded in the evidence and the communications which are recorded and are part of the record, and he/she rightly came to the conclusion that the default was on the part of the Petitioner. Both the counsel taken through the recorded conversation on record and other documentary evidence. Therefore, though there is finding given that there is no conclusive evidence in favour of the Applicant for margin clauses from 17 May 2009, the facts which cannot be overlooked are that the Respondent regularly communicated to the Petitioner through the contract notes and bills about the transactions. The Petitioner used to receiving the same and there was no objection raised at any point of time about the communication through emails. The fact that there was an amount paid of `4 lacs and still the submission that there was no communication and/or intimation, is unsustainable. There was no reason for the Petitioner to make the payment if there was no communication at all. 4 The Respondent, in such situation when market was collapsing, had no choice but to contact and/or communicate the situation on phone and by sending representatives, but in spite of this if the Petitioner refused to answer the telephone calls and/or avoid communications or contact and now challenged the demand made by the Respondent, on the ground of non-communications in the present case, is also unacceptable. 5 The learned Arbitrator even recorded that the Respondent was trying to contact the Petitioner on 15, 16 and 18 May 2009 and the situation of 19 May 2009 was more serious than the earlier dates. There is nothing placed on record by the Petitioner to point out why there was no communication from him though being a businessman and while involved in the market, have knowledge of fluctuating situation of the market. The Respondent had intimated him on 18 May 2009 about the losses and shortfall of the margin. The Petitioner, therefore, having failed to raise objection and/or failed to take care of business at the relevant time, in the present case, cannot be permitted to deny the liability on such ground of non-communications and/or no knowledge. The learned Arbitrator is right in holding that both the parties are under obligations to take note of margin money. The Petitioner, therefore, having failed to raise objection and/or failed to take care of business at the relevant time, in the present case, cannot be permitted to deny the liability on such ground of non-communications and/or no knowledge. The learned Arbitrator is right in holding that both the parties are under obligations to take note of margin money. The Petitioner-client if failed to maintain the margin money when necessary and required, the Respondent-member has no choice but to square off the account to avoid further losses, as provided under the byelaws and as necessary to avoid further losses. 6 The learned Arbitrator has recorded the situation of the market right from 29 April 2009 till 19 May 2009 in para (viii) and rightly contended that the Respondent has exercised the discretion to avoid the loss to the Petitioner. The broker has to exercise his discretion and authority by considering the market position on the situation on that day and at that moment. The Claimant ought to have kept himself alert and should have connected at the relevant time when demanded. The Petitioner knew the position of the market, therefore, to blame the transaction and the action of broker solely on the ground of non-communication itself shows the whole endeavour to deny their liability. No one is in position, if the market starts fluctuating, to control and/or to predict the behaviour and uncertainty and any situation. The action of Respondent of squaring off on 19 May 2009 therefore, cannot be stated to be illegal and/or bad in law, and so also the reasoning given by the Arbitrator while granting the award. 7 The learned Arbitrator has already noted by rejecting the objection of the Respondent so far as the counter claim of the Petitioner is concerned, that the Respondent had credited the amount at Serial No. 1, 3, 4 and 5. Therefore, there was no question of any payment and so also the interest thereon. The Petitioner failed to take steps whenever necessary. The action of squaring off on 19 May 2009 to save more losses, as observed above, was well within the discretion and as observed above the decision so taken, is right. 8 It is also relevant to note that the Petitioner made this counter claim and/or raised this claim after 9 months from the last date of transaction i.e. 19 May 2009. 8 It is also relevant to note that the Petitioner made this counter claim and/or raised this claim after 9 months from the last date of transaction i.e. 19 May 2009. Therefore, it was nothing but founded counter-claim to counterblast the claim of the Respondent. There is material on record to show that on 18 May 2009 the Petitioner suffer MTM loss to the tune of `8,74,395/-. The credit was accordingly wiped off. The debit balance of `4,15,041.66. The collateral shares were sold. The due credit were given and adjusted against the debit balance. Therefore, there was no question of claiming any balance. The claim of amount on 18 May 2009 and the value of shares is unsustainable, as it is based upon the hypothesis and surmises. The due credit to the tune of `4 lacs was given by the Petitioner. This also shows that the case of no signature and/or forgery and denial even of execution of the ECN mandate, nowhere sufficient to deny the liability and award so passed by the Arbitrator. The Arbitrator, therefore, based upon the material on record and documents as supported by evidence, awarded the claim with reasonable interest. Therefore, need no interference. 9 Therefore, taking over all view of the matter and the case of the Petitioner that the payment of `4 lacs was sufficient to discharge all his arbitration obligation from 19 May 2009 itself contradicted his all other submissions of no communication and/or no knowledge of the transaction and/or shortfall of margin. This inconsistence stand itself, in my view, also shows that the defence, as well as, the counter claim so raised is without any substance. The Arbitrator has considered all these facts in detail. There is no perversity in the reasoning given by the Arbitrator. The award so passed is well within the frame work of law and the record. 10 Resultantly, the Petition is dismissed. There shall be no order as to costs.