Judgment None appeared for the Respondent inspite of repeated notices. The Petitioner has filed affidavit of service dated 2 August 2012 and lastly about the paper publication dated 12 November 2012. None appeared for the Respondent though served. The matter is pending since 2010. The learned counsel appearing for the Petitioner seeks to proceed with the matter as there is no point to wait for the Respondent. Accordingly, the matter is heard finally. 2. The Petitioner, share broker, has challenged award dated 13 November 2009 passed by the sole Arbitrator, under Section 34 of the Arbitration and Conciliation Act, 1996, in the matter of Arbitration under Bye-laws, Rules and Regulations of the National Stock Exchange of India Limited (for short, “NSEIL”) between the parties. 3. The learned Arbitrator has dismissed the claim of the Petitioner. The counter-claim of the Respondent was dismissed on the ground of limitation based upon then existing rules. The learned Arbitrator though recorded: “both the parties are agreeable that there indeed was net margin shortfall on 17, 18 and 21 January 2008”, yet held that the Petitioner ought to have squared off the open position on 21 January 2008 and not on 22 January 2008. The award also records that the market had witnessed heavy down fall due to which the market losses, as well as, the margin requirements were increased. There is no reason provided why the position of 21 January 2008 was considered for the basis of liquidation, specifically when the Petitioner made positive averments and placed on record the material to justify through rejoinder that: “The Applicant had made several requests to the Respondent/her said husband to provide more margin in the form of cash or securities or alternately to square off some of the open F&O positions. The Respondent/her husband urged and requested to retain the said open positions for a little while longer in the hope of an unswing in the market indices. Although, as a valuable client, the Applicant did accommodate the Respondent on the 17th and 18th of January 2008, when, the margin requirements in respect of the open F & O positions of the Respondent on January 21, 2008, and the debit balance in her account far exceeded the value of the margin available with the Applicant, the Applicant was constrained to square off the said open positions. This action of the Applicant, which was in consonance with the requirements of the bye laws, rules and regulations of the NSE and according to the agreement between the parties cannot be said to be bad in law.”. 4. The learned Arbitrator, however, not considered these basic averments and the case of the Petitioner though recorded about the accommodation by the Petitioner for shortfall in margin on 17 and 18 January 2008. The sequence, therefore, shows that though there was shortfall right from 17 January 2008 till 21 March 2009, the Respondent failed to fulfill his obligations by making prompt payment, as required. The Petitioner, therefore, as exercised the discretion on 22 January 2008, in no way can be stated to be against the bye-laws. 5. It is relevant to note the bye-laws 3.10 (b) (F & O) Segment of NSEIL Regulation, which is reproduced as under – “...... In case of open purchase position undertaken on behalf of constituents, the Trading Members shall be at liberty to close out transactions by selling derivatives contracts, in case the constituent fails to meet the obligations in respect of the open position within next trading day for the execution of the full contract or within next trading day of the contract note having been delivered, unless the constituent already has an equivalent credit with the Trading Member. The loss incurred in this regard, if any, shall be met from the margin money of the constituent. ….” 6. It is clear from the bye-laws itself that the liberty is given to the share broker to take steps considering the market position and by using discretion and due diligence for squaring off the account to avoid further losses. It is not the case that the Respondent was not aware of the obligation. Having once failed to fulfill the obligation, merely because some concession was given by the Petitioner with intention to wait for settlement of market on next date/day, in such circumstances to say that the Petitioner wrongly exercised discretion and/or liberty and squared off the transaction on 22 January 2008, in my view, basically in the present facts and circumstances, is incorrect. The Arbitrator is under the obligation to consider the facts and circumstance of the case and specifically the positive averments so made with regard to the direction/instructions issued by the Respondent to withhold the position. The Arbitrator is under the obligation to consider the facts and circumstance of the case and specifically the positive averments so made with regard to the direction/instructions issued by the Respondent to withhold the position. The share broker cannot be penalized merely because he accommodated the Respondent for 17, 18 and 21 January 2008 also. There is nothing placed on record and even observed by the learned Arbitrator that there was no steps taken by the Petitioner before squaring off the open position on these dates. The submission is that in spite of their efforts, they were unable to square off the position for want of purchase order. In the present case, the submission is that it was open position. The contract notes shows that some portions were squared off even on these dates also i.e. 18, 21 and 22 January 2008. The Petitioner admittedly squared off the balance on 22 January 2008. Strikingly, there is no reference and/or observation made with this regard. 7. Therefore, taking over all view of the matter, I am inclined to observe that the order so passed by the learned Arbitrator in view of above position is unsustainable. 8. In view of the typical market position and the nature of transaction and the bye-laws provides and permits the share brokers to exercise the discretion, as the liberty is provided to close out the transaction at appropriate position/time and if the trader takes action accordingly by exercising his discretion and the market experience, therefore to say it is contrary to the law and/or the regulation, is unsustainable. There is nothing to justify the same except the observations so made by overlooking the factual position on record. 9. So far as the counter-claim of Respondent is concerned, it was dismissed on the ground of limitation in view of Rule 3.3 of SEBI. The period of 6 months was considered as the foundation for the same. I have already observed in India Infoline Limited Vs. Shyamlal Daulatram Vachhani referring to the latest circulars and judgments and considering the purpose and intention of the bye-laws which provides and permits and extent the period of limitation by 3 years from 6 months, need to be considered afresh by the Arbitral Tribunal by giving full opportunity to both the parties. Shyamlal Daulatram Vachhani referring to the latest circulars and judgments and considering the purpose and intention of the bye-laws which provides and permits and extent the period of limitation by 3 years from 6 months, need to be considered afresh by the Arbitral Tribunal by giving full opportunity to both the parties. If there is a counterclaim and if it is considered in accordance with law, it will definitely affects the claim so raised. Therefore, the claim, as well as, the counter-claim just cannot be dissected without proper and simultaneous consideration. 10. Section 34 of the Arbitration Act permits and provides that the Court, if the case is made out and the claim and counter-claim are undissectable, to remand the matter. The learned Arbitrator can reconsider the whole matter again in the interest of justice. All points are kept open. 11 Resultantly, the following order:- a) The impugned award dated 13 November 2009, is quashed and set aside. b) The Petition is allowed. c) The matter is remanded back for rehearing by giving the opportunity to both the parties. d) The parties to take steps in accordance with law. e) There shall be no order as to costs.