JUDGMENT : ANIRUDDHA P. MAYEE 1. The present First Appeal arises out of the impugned judgment and order dated 28.11.2022 dismissing the Commercial Civil Misc. Application No.154 of 2022 under the Section 34 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act” for the sake of brevity). 2. The brief facts in the present case are that the appellant herein is a company, which is a trading member/stockbroker registered with the Securities Exchange Board of India (SEBI) and a trading member of the National Stock Exchange (NSE) and Bombay Stock Exchange (BSE). The respondent is an investor in the stock market and does his transactions in the stock market through the appellant availing its services. The appellant executes trades on various segments including Futures & Options (F & O) Segment of NSE on behalf of its clients. That the appellant places orders and executes trades on behalf of the respondent, who has been carrying on trades across all segments in large quantities and value. 2.1 It is the case of the appellant that the respondent used to place orders with the appellant for F & O Segment. That these derivative contracts are highly volatile in nature and the exposure/loss incurred by the respondent can fluctuate considerably depending on the volatility in the stock market. The clients are made aware that while trading in derivative contracts if any loss is suffered while executing the trade, the client shall be solely responsible for the same. As the stock market is volatile, the MTM loss of a client can rise exponentially within a short span of time. In such a situation, the trading member is required to demand from its client additional margin according to the changes in the stock market prices and call upon the client to deposit the same forthwith with it. The trading member can demand higher margin from its client if it deems fit. Further, as per the terms and conditions of various documents executed between the appellant and the respondent, the appellant was entitled to demand such margin as deemed fit. In the event, the client fails to bring the additional margin, the trading member is entitled to liquidate all the positions for non-payment of margin and adjust the proceeds of such liquidation/close out, if any, against the liabilities/obligations of the constituent. In the event, the client fails to bring the additional margin, the trading member is entitled to liquidate all the positions for non-payment of margin and adjust the proceeds of such liquidation/close out, if any, against the liabilities/obligations of the constituent. 2.2 It is the case of the appellant that the respondent is carrying on trades across all segments since 2016 and is aware of the stock market norms and procedure. The parties are dealing with each other without any complaint in respect of the trading in the stock market. The dispute in question arose on 13.03.2020 when the stock markets were highly volatile due to the impact of global covid-19 outbreak. The respondent had exposure in various F & O contracts including large number of Nifty Call Options. It is an admitted position that on 13.03.2020, there was a drastic fall of about 10% in the stock market due to high volatility. The stock market opened at 9.15am and within six minutes of the market opening, the trading was halted for an hour at 9.21am, due to heavy and unprecedented fall of 10%. In view of the sharp fall in the stock market, the respondent had incurred huge losses and thus, the margin shortfall in the account of the respondent, had also increased. It is the case of the appellant that the margin shortfall in the account of the respondent surged from Rs.9.17 crores at 9.07am at pre-opening of market to Rs.11.91 crores at 9.21am. It is contended that since the respondent failed to bring the additional margin, which was reflecting in his account at the time of the opening of the market, it had become imperative for the appellant to take necessary steps to regularize the account. Due to long standing relationship between the appellant and the respondent, the representative of the appellant got in touch with the respondent via a phone call and informed the respondent about the margin shortfall in his account. It was informed to him that the margin available with the appellant remained only 4% as the rest had eroded due to the fall in the market. Numerous phone calls took place between the parties to resolve the situation. The respondent was well aware that there was a margin shortfall and he was being asked to make it good through one of the available means. Numerous phone calls took place between the parties to resolve the situation. The respondent was well aware that there was a margin shortfall and he was being asked to make it good through one of the available means. It is the case of the appellant that since the respondent was logged onto Omnesys CTCL Software and he was monitoring the margin requirement on real time basis, he could trace his margins. 2.3 However, despite the discussion between the parties over the phone, the respondent failed to make good the margin shortfall in his account. Due to high volatility and no liquidity in contracts, the appellant was left with no other option, but to sell Futures, which is a natural hedge for a trader holding sell positions of Put Options. 2.4 At the end of the day, the respondent addressed an email to the appellant alleging that the appellant had purportedly carried out unauthorized and illegal trades in the account of the respondent without his consent and thereby caused him financial loss. The appellant herein denied the same. The correspondence took place between the parties. Finally, the respondent initiated the arbitration proceedings under the rules, regulations and bye-laws of the NSE. Vide his application dated 30.04.2021 before the Arbitral Tribunal at NSE’s Vadodara Regional Center, the respondent sought damages/compensation of Rs.9,56,77,941/- for the purported loss caused to him due to unilateral and unauthorized trading in his account by the appellant squaring off the Future Positions. That the hearings were held before the Arbitral Tribunal on 30.07.2021 and 09.08.2021 and pursuant thereto, the award dated 18.08.2021 came to be passed by the Arbitral Tribunal awarding a sum of Rs.9,56,77,941/- to the respondent herein along with interest @ 9% per annum from 13.03.2020 till release of the amount. 2.5 Aggrieved, the appellant herein challenged the award passed by the Arbitral Tribunal before the Appellate Arbitral Tribunal under the rules, regulations and bye-laws of the NSE. The Appellate Arbitral Tribunal, after hearing the parties, vide award dated 30.03.2022, dismissed the Appeal of the appellant herein. Accordingly, the award dated 18.08.2021 stood merged with the award of the Appellate Arbitral Tribunal dated 30.03.2022 and the same is considered as final arbitration award for the purpose of the Arbitration Act. 2.6 Aggrieved the appellant preferred an application under Section 34 of the Arbitration Act being Commercial Civil Misc. Accordingly, the award dated 18.08.2021 stood merged with the award of the Appellate Arbitral Tribunal dated 30.03.2022 and the same is considered as final arbitration award for the purpose of the Arbitration Act. 2.6 Aggrieved the appellant preferred an application under Section 34 of the Arbitration Act being Commercial Civil Misc. Application No.154 of 2022 challenging the award dated 30.03.2022. By the impugned order dated 28.11.2022, the learned Commercial Court, Ahmedabad was pleased to dismiss the said application holding that the award passed by the Appellate Arbitral Tribunal cannot be regarded to be one suffering from patent illegality as well as on the finding of fact reached by both the Tribunals that no specific demand of margin shortfall was ever raised by the appellant in terms of the SEBI/NSE Regulations, which also gives reasonable stipulated time/period to meet the margin shortfall. Aggrieved, the appellant has preferred the present Appeal under Section 37 of the Arbitration Act. 3. Mr. Mihir Joshi, the learned senior counsel appearing on behalf of the appellant company submits that though the award dated 30.03.2022 is partly held in favour of the appellant and partly in favour of the respondent, the said award has granted the claim of the respondent. He submits that the impugned award rewrites the contract between the parties and approves the claim of the respondent by reading in clauses/regulations, which are not otherwise in existence. He submits that there is patent illegality. The findings are completely contrary to the material on record and many of the findings are based on no evidence, which render the award completely perverse. Mr. Joshi, the learned senior counsel has taken the Court through the transcripts of various discussion between the parties done telephonically on the date of the incident. He submits that this discussion shows that the respondent was made aware of the shortfall in the margin and that he was also intimated and called upon to maintain the same. However, due to heavy volatility and also the fact that the stock market fell again after the trading resumed, after one hour, the loss of the respondents had surged from Rs.9.17 crores to Rs.11.91 crores. However, due to heavy volatility and also the fact that the stock market fell again after the trading resumed, after one hour, the loss of the respondents had surged from Rs.9.17 crores to Rs.11.91 crores. The learned senior counsel appearing on behalf of the appellant company would submit that the material on record clearly shows that even if assuming that the findings arrived at by the forums below are considered, the respondent has not suffered any actual loss and on the contrary, if the appellant had not taken any corrective action, the respondent would have suffered much more loss. It is submitted that in fact, stopping losses of the respondent has actually benefited to the respondent. Further, it was the liability of the respondent to meet its margin requirement, which was duly informed to him by the company during the telephonic discussion between the parties on the said date of incident. He submits that the award dated 30.03.2022 has travelled beyond the scope of the contract as well as the regulations of NSE. He submits that the Arbitral Tribunal has erroneously held that it was necessary for the appellant to raise quantified demand from the respondent and the forums below have erroneously construed clause 3.10(a) and 3.10(b) of the NSE F & O Regulations, which is not a possible view to take. He, therefore, submits that the impugned order be set aside and the present First Appeal be allowed. 4. Per contra, Mr. Percy Kavina, the learned senior counsel appearing for the respondent submits that that there was no shortfall in the margin. The appellant had not identified the exact quantum of the alleged shortfall in the margin and the same was not conveyed to the respondent in terms of the rules and regulations. That, in the present case, the appellant had also not waited for the margin file to be released by the Stock Exchange so that the position would have become clear. He submits that the respondent had undertaken to pay any shortfall in the margin. He further submits that even if there was a shortfall in the margin, the respondent would have paid the same and that it was within his capacity and even if there was any default in paying the margin money, the appellant could have squared off the open positions/contracts in options. He further submits that even if there was a shortfall in the margin, the respondent would have paid the same and that it was within his capacity and even if there was any default in paying the margin money, the appellant could have squared off the open positions/contracts in options. He submits that the respondent had never agreed to the appellant’s suggestion to acquire/sell futures and had specifically advised not to acquire/sell any new/fresh futures contracts. He submits that the appellant had remained silent on the margin file of the NSE and the margin computation on the basis thereof. Further, the allegation of lack of liquidity was also not substantiated by the appellant, who had squared of all the options and futures on the same day. It is submitted that the respondent had fully paid his total loss of about 22.54 crores without prejudice by liquidation of his FDs to the appellant. The respondent had accepted a loss of Rs.22.54 crores. However, the loss of Rs.9.56 crores caused by unauthorized future trades by the appellant was its fault and therefore, the appellant was liable to pay the same. 4.1 It is submitted that the respondent seeks reimbursement of the actual loss caused due to unauthorized future trade done by the appellant. Both the Arbitral Tribunals have elaborately considered the facts and contentions and dealt with the same while passing the award in favour of the respondent. He submits that both the Arbitral Tribunals are created by BSE and NSE and consist of market experts, who are fully aware of the transactions being done in the stock market. He submits that after evaluating all the transactions between the parties, the Arbitral Tribunal has given the award in favour of the respondent. He further submits that the learned Commercial Court has also not interfered with the award holding that there is no patent illegality in the award. He lastly submits that the present First Appeal be dismissed. 5. Heard the learned counsels for the parties and perused the averments on record. 6. In the present case, the appellant has challenged the award on the ground that the same suffers from patent illegality and perversity by going beyond the contract between the parties and also, the challenge to the award is made under Section 34(2A) of the Arbitration Act. Heard the learned counsels for the parties and perused the averments on record. 6. In the present case, the appellant has challenged the award on the ground that the same suffers from patent illegality and perversity by going beyond the contract between the parties and also, the challenge to the award is made under Section 34(2A) of the Arbitration Act. In the present case, the dispute between the parties has been adjudicated first by the Arbitral Tribunal and thereafter by the Appellate Arbitral Tribunal constituted under the rules, regulations and bye-laws of the NSE. These Arbitral Tribunals consist of the market experts who are well versed with the rules, procedure and working of the NSE and have been constituted by the body of experts so as to resolve the dispute arising out of the trades/transaction made on the NSE. 7. A perusal of the documents on record shows that on the fateful day of 13.03.2020, the stock markets were volatile and there was a sharp fall in the index due to Covid-19 pandemic, as a result of which, the trading was suspended for one hour. Consequently, the margin shortfall in the account of the respondent surged from Rs.9.17 crores at 9.07am at the pre-opening market to Rs.11.91 crores at 9.21am when the trade was halted. It is the case of the appellant that the margin available with the appellant was only 4%. Accordingly, the representative of the appellant made a phone call to the representative of the respondent at about 9.57am and another call at 10.01am intimating the shortfall in the margin on real time basis. Accordingly, the appellant had asked the respondent to square off 1,12,000 puts and 60,000 futures. That thereafter, at about 10.07am, the appellant informed the respondent that it will sell the futures to hedge the position of the respondent through futures in the open market. Accordingly, it is the case of the appellant that it was left with no option but to sell the futures of the respondent, which is a natural hedge for holding sale positions of Put Option. After hearing the parties at length, both the Arbitral Tribunal and Appellate Arbitral Tribunal came to the conclusion that the respondent had suffered actual loss as per the claim instituted and has awarded the same. After hearing the parties at length, both the Arbitral Tribunal and Appellate Arbitral Tribunal came to the conclusion that the respondent had suffered actual loss as per the claim instituted and has awarded the same. The main contention raised by the appellant is basically that the award has travelled beyond the scope of the contract and the bye-laws of the NSE and the NSE F & O Regulations. 8. In the present case, after considering the relevant regulations of NSE F & O being Regulations Nos. 3.10(a) and 3.10(b) read with clause 3 of the bye-laws of the NSE, it is seen that the trading member has a right to demand from its constituent (client) the margin deposit which he has to provide under the bye-laws, rules and regulations in respect of the business done by each of such constituents. It also gives the right to the trading member to demand the initial margin from its constituent before executing an order and also stipulates that the constituent shall make margin deposit or furnish additional margin according to the changes in the market prices. A perusal of Regulation 3.10 of the NSE F & O Regulations reveals that the trading member has a right to demand the margin deposit from the constituent and that the trading member may collect the margin from its constituent. 9. In the present case, the parties are doing business with each other since the year 2016. However, on the fateful day, it is revealed from the transcripts of the telephone calls/discussion between the parties that the margin money shortfall, which had occurred on real time basis, had not at all been quantified by the appellant and duly intimated to the respondent by raising a specific demand. Further, the call transcripts reveal that the respondent had neither agreed, nor consented to the transaction whereby the appellant had sold off the futures of the respondent. It is also revealed from the record that in terms of the existing NSE regulations, the appellant had to provide a reasonable time, i. e. T + 1 days for meeting the payment of the margin shortfall, which was not adhered to by the appellant in the present case. It is also revealed from the record that in terms of the existing NSE regulations, the appellant had to provide a reasonable time, i. e. T + 1 days for meeting the payment of the margin shortfall, which was not adhered to by the appellant in the present case. As per the NSE Regulations, the trading member is required to quantify the shortfall in the margin and raise a demand to the constituent and further, the trading member has to give at least T+1 days to the constituent to bring in the margin shortfall. 10. Having thoroughly gone through the regulations, it is revealed that the same do not provide for a constituent to deposit the margin shortfall on a real time basis which keeps changing every moment. In the present case, the appellant was monitoring the margin shortfall in the volatile and illiquidate market for the connected options, which was its responsibility. However, the appellant did not spell out any specific margin requirement to the respondent since the margin shortfall on real time basis keeps changing every moment. Further, the Arbitral Tribunal has specifically recorded a finding that there is no practice of the trading member demanding deposit of margin amount considering margin requirement on real time basis as was sought to be done in the present case. Further, the facts reveal that pursuant to this action of the appellant of selling the futures of the respondent, an email was sent by the respondent to the appellant on the same day alleging unauthorized trade conducted in his account by the appellant without his consent. Therefore, the respondent had raised an objection at the very first instance, against which, there was no justification by the appellant in respect of making such trade in consonance with the bye-laws and regulations of the NSE or Service Level Agreement. 11. It is trite law that the Court does not sit in appeal against the arbitral award. The view taken by the Arbitral Tribunal is a possible view based on oral and documentary evidence led in the present case. The Court cannot go through primary contract interpretation so as to review the award. The Court should not lightly interfere in the findings of the Arbitral Tribunals consisting of technical experts who are well versed with the contractual interpretation of the transaction/work involved. 12. The Court cannot go through primary contract interpretation so as to review the award. The Court should not lightly interfere in the findings of the Arbitral Tribunals consisting of technical experts who are well versed with the contractual interpretation of the transaction/work involved. 12. This Court is of the opinion on conjoint reading of Regulation 3.10 read with clause 27 of the Service Level Agreement, clause 1(B) of the Guidelines on margin collection and reporting and clause 3 of the bye-laws that there is no patent illegality as alleged by the appellant, nor the Arbitral Tribunal has travelled beyond the terms of the contract in the present case. The award as well as the impugned order of the Commercial Court are in conformity to the aforesaid bye-laws and regulations. No infirmity could be pointed out by the learned counsel for the appellant. No interference is called for in the impugned order. The Appeal is devoid of merits and is accordingly dismissed. 13. The request of the learned counsel appearing for the appellant to continue the interim direction passed in the Appeal is hereby rejected.