KOTAK SECURITIES LTD Vs. CHETHAN BHANDARY

JUDGEMENT

(1.) In this appeal, the appellant is calling in question the order dated 25.01.2010 passed by the learned Single Judge allowing the writ petition filed by respondent No. 1 herein by setting aside the proceedings before the learned Trial Judge in Arbitration Suit No. 22/2009.

(2.) The facts involved in this case stated in brief are, that respondent No. 1 availed security trading facility with the appellant. After execution of necessary documents, respondent No. 1 was admitted as a customer with effect from April 2006. It is alleged that respondent No. 1 also executed disclosure agreement and availed the services of the appellant through respondent No. 3 by carrying out various trades. According to the appellant, when respondent No. 1 failed to discharge his admitted liability under the transaction entered into between them, the appellant submitted a claim before the Arbitration Department of National Stock Exchange of India Limited. Respondent No. 1 disputed the claim and also made a counter claim. The Arbitrator having enquired into the matter, passed an award dismissing the claim of the appellant and allowing the counter claim of respondent No. 1, directing the appellant herein to pay a sum of Rs. 9,24,750/- with interest at 18% per annum from the date of award. The said award was challenged by the appellant before the High Court of Judicature at Bombay in Arbitration Petition No. 13/2008 under Section 34 of the Arbitration & Conciliation Act, 1996.

(3.) The High Court of Judicature at Bombay, by order dated 25.11.2008 ordered return of the petition for presentation to the proper forum. It is the case of the appellant that though the order returning the petition was passed on 25.11.2008, the petition was returned to the appellant only on 24.02.2009 for presentation before the proper court. However, based on the order returning the petition, the appellant took steps to file another petition containing verbatim reproduction of the petition filed by it before the High Court of Judicature at Bombay, before the City Civil Court at Bangalore, only with such necessary changes that were required as per the Civil Rules of Practice. The fact remains that the appellant did not re-present the petition that was filed before the High Court of Judicature at Bombay, but filed another petition. The fresh petition was filed on 20.03.2009 before the City Civil Court, Bangalore, which came to be numbered as Arbitration Suit No. 22/2009. Only on 17.06.2009, an application was filed by the appellant seeking permission to file the original documents returned by the Bombay High Court. Respondent No. 1 filed objections and contended that the petition filed at Bangalore was barred under Section 34 of the Arbitration Act. The City Civil Court by order dated 25.06.2009 held that the petition filed was not barred by limitation. The said order was challenged in W.P. No. 22502/2009, out of which the present writ appeal arises.