1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2017 Coram The Hon'ble Mr.Justice T.S. SIVAGNANAM O.P.No.716 of 2009 S.B.Bhuvanendra .. Petitioner vs 1.M/s.India Infoline Ltd., Trading Member, 75, Nirlon Complex, Off. Western Express Highway, Goregaon (E), Mumbai – 400 063. 2.Mr.M.V.Badrinath, Presiding Arbitrator, C/o.National Stock Exchange of India Ltd., 2nd Floor, Ispahani Centre, Door No.123-124, Nungambakkam High Road, Nungambakkam, Chennai – 600034. 3.Mr.R.Subramaniam Sole Arbitrator, C/o.National Stock Exchange of India Ltd., 2nd Floor, Ispahani Centre, Door No.123-124, Nungambakkam High Road, Nungambakkam, Chennai – 600034. 3.Mr.A.V.Hariharan Sole Arbitrator, C/o.National Stock Exchange of India Ltd., 2nd Floor, Ispahani Centre, Door No.123-124, Nungambakkam High Road, Nungambakkam, Chennai – 600034. .. Respondents Prayer: Petition is filed under Section 34 of the https://hcservices.ecourts.gov.in/hcservices/ 2 Arbitration and Conciliation Act, 1996, to set aside the Arbitral Award dated 28.07.2009 received by the petitioner on 08.08.2009 made under the Bye-laws, Rules and Regulations of National Stock Exchange of India Ltd., which was reviwed and reconfirmed by the arbitral tribunal by order dated 03.09.2009 received by the petitioner on 14.09.2009 under Section 33 of the Arbitration and Conciliation Act, 1996. For Petitioner : Mr.C.Mohan for M/s.King and Patridge For Respondents : Mr.K.R.Ramesh Kumar (for R1) ORDER Heard Mr.C.Mohan, learned counsel for the petitioner and Mr.K.R.Ramesh Kumar, learned counsel for the first respondent. 2.This petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996, (Act), to set aside the award passed by the learned Arbitrator dated 28.07.2009. 3.The only ground on which the impugned award is challenged, is by contending that the claim statement has been thrown out on the only ground that in terms of Article No.(3) of bye-laws of National Stock Exchange, the claim is barred by limitation. 4.The learned counsel appearing for the petitioner submitted that though the award has to be set aside on the ground that the law of limitation would be applicable, he https://hcservices.ecourts.gov.in/hcservices/ 3 has certain objections for the matter being remanded for the National Stock Exchange of India for appointing a fresh Arbitrator. In this regard, the learned counsel referred to the decision in O.P.No.558 of 2007 (R.Narayanan vs. M/s.India Info Line Securities Private Limited and another) dated 13.06.2013, wherein it has been held as follows: “28.Under Section 16(1) of the Arbitration Act, 1940, the Court had the power to remit the Award for reconsideration, under three contingencies listed therein. But there is no corresponding provision in the 1996 Act. The parties, under the 1996 Act, can take recourse either to Section 33(4) or the Court should act in terms of Section 34(4). But there is no specific provision for an order of remand. The Supreme Court did not specifically recognise such a power in Mc Dermott International Inc. vs. Burn Standard Co. Ltd (2006 (11) SCC 181). The Delhi High Court in Hindustan Fertilizer vs. J.M.Boxi and Co. (2008 (3) RAJ 464 (Delhi)) and the Madras High Court in Central Warehousing Corporation vs. A.S.A. Transport (2008 (3) MLJ 382 Mad-DB) have taken the view that the Court has no power to remit the matter back to the Arbitrator. Therefore, I cannot even remit the matter back to the Arbitrator. Hence, the original petition is allowed and the Award is set aside, leaving it open to the parties to workout their remedies in a manner known to law. There will be no order as to costs.'” https://hcservices.ecourts.gov.in/hcservices/ 4 5.However, the very same learned Judge in the case of A.Chandrasekaran vs. M/s.Yoha Securities limited & Anr., reported in 2014(1)CTC 87 has remanded the matter to the National Stock Exchange of India with a direction to nominate an Arbitrator to resume the hearing and hear the parties on merits and pass a fresh award. The operative portion of the order reads as follows: 32.Section 34(4) of the Act provides that the Court can adjourn the proceedings to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal, will eliminate the grounds for setting aside the award. Therefore, I am of the view that the proceedings in this petition can be adjourned with a direction to the Arbitral Tribunal to eliminate the ground on which the award is liable to be set aside. 33. In view of the above, the following order is passed for the present:- (i) The proceedings in the main petition are adjourned by 6 months. (ii) Since the second respondent who acted as the Arbitrator, is stated to be not available anymore, the National Stock Exchange of India is directed to nominate an Arbitrator, to resume the hearing and hear the parties on merits and pass an award afresh. This shall be done within 6 months. (iii) Call after 6 months. https://hcservices.ecourts.gov.in/hcservices/ 5 6.In the light of the above, this Court is of the view that the learned Arbitrator has not adjudicated into the merits of the matter and the claim petition has been thrown out only on the ground that the claim is barred by limitation. Therefore, I am inclined to follow the direction issued in the case of A.Chandrasekaran (supra) 7.Accordingly, the Petition is allowed and the impugned award is set aside and the matter is remanded to the National Stock Exchange of India for constituting an Arbitral Tribunal to hear the petitioner as well as respondents and decide the claim and the counter claim afresh on merits and in accordance with law. It is made clear that this Court has not adjudicated the merits of the claim nor the learned Arbitrator done so and in the fresh arbitration proceedings, the parties are at liberty to raise all factual and legal issues. sd/.T.S.S.J 02.02.2017 //Certified to be a true copy// Dated this the day of 2017 R.s/20.04.2017 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/