IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2009
CORAM
THE HONOURABLE MR. JUSTICE D. MURUGESAN
AND
THE HONOURABLE MR. JUSTICE C.S.KARNAN
O.S.A.No.70 of 2009
and
M.P.No.1 of 2009
ASL Capital Holdings Pvt. Ltd.,
Mylapore, Chennai - 600 004. .. Appellant
Versus
1. Kishore Share Consultants,
Governorpet,
Vijayawada - 520 002.
2. Parvathi Palaniappan,
Arbitrator.
3. National Stock Exchange of India Ltd.,
7th Floor, Arihant Nitco Park,
90, Dr.Radhakrishnan Salai,
Mlyapore, Chennai - 600 004. .. Respondents
Appeal against the order dated 23.07.2008 made in Tr.O.P.No.578 of 2006, on the file of this Court.
For Appellant : Mr. P.L.Narayanan
ORDER
C.S.KARNAN, J
As against the order dated 23.07.2008 of the learned Single Judge in Tr.O.P.No.578 of 2006 on the file of this Court, setting aside the award dated 16.12.2002 made by the second respondent so far as it relates to Global Trust Bank and reducing the interest from 15% to 9%, the petitioner ASL Capital Holdings Private Limited, Chennai-4 has preferred this appeal.
2. The appellant was a sub broker of the first respondent herein, who discontinued business with the appellant on 15.05.2001. It was the claim of the first respondent that dispute arose between them regarding delayed transfer of shares, non-delivery of shares and regarding settlement of account. This had compelled the first respondent to invoke the arbitration clause to make a claim of Rs.8,60,293.74 including interest at 36% p.a. Though this was strongly refuted by the appellant before the Arbitrator, by award dated 16.12.2002, the Arbitrator held the appellant liable to pay to the first respondent as follows:
"Interest due on delayed delivery of securities Rs.3,24,227.61 On account of Global Trust Bank Shares Rs. 22,032.50 Software shares Rs. 23,490.00 On account of Maharaja International Share Rs. 16,620.00 Total Credit dues to the applicant Rs.3,86,370.11 To set aside this ward, the appellate has filed a petition in Tr.O.P.No.578 of 2006.
3. Before us, it is not disputed that the challenge to the award was confined to award of interest by the Arbitrator before the learned Judge. Assailing the award of interest on delayed delivery of shares, it is contended on behalf of the appellant that the first respondent has not proved the actual loss suffered by it. This aspect of the case has been elaborately considered by the Learned Judge by referring to the provisions of section 73 of the Indian Contract Act, which speaks about determination of compensation amount in a case of a party committing a breach and the decision of various courts starting from Privy Council. We do not find any infirmity with the finding of the learned Judge in affirming the award of interest by the Arbitrator. The decision arrived at by the learned Judge by placing reliance upon the decision of this Court in M/s. Eastern Trading Co. and others ..vs.. Kalpana Lamps and Components Ltd., and another (2008-1-L.W. 814) reducing the award of interest from 15% to 9% also does not call for interference.
4. Yet, we do not feel hesitant to consider the decisions relied upon by the learned counsel for the appellant in support of his case as hereunder:
a) In Muralidhar Chiranjilal ..vs.. Harish Chandra Dwarkadas and another (AIR 1962 SC 366), the Supreme Court pointed out the circumstances in which damages could be determined where the contract had become impossible of performance. The said decision was no application to the instant case, where there is no plea of delayed transfer of share has become impossible.
b) The next decision is reported in Delhi Development Authority ..vs. R.S.Sharma & Co. (2009) 1 MLJ 327), wherein the Supreme Court has held that an Arbitrator must operate within four corners of the contract. It is pertinent to point out that the appellant herein has not raised any ground in the appeal that the second respondent has acted contrary to the term of contract. It is the specific claim of the appellant that the first respondent did not suffer any loss. It is the specific finding of the Arbitrator that the first respondent has substantiated its claim by documentary evidence. To get over the said finding, the appellant has not come forward to file documents in support of his case before the learned Judge. Therefore, except the ipsi dixit of the appeal, there is no material before us to accept the case of the appellant.
5. It may be worthwhile to point out that there was no communication from the appellant herein that the shares were offered as margin or held as margin. Therefore, though the first respondent has raised the dispute as regards the claim relating to Global Trust Bank shares and interest due on delayed delivery, since the appellant has admitted the issue on the Global Trust Bank, the learned Judge rightly confined the issue to post award interest and reduced the same from 15% to 9%, thereby partly allowing the claim of the appellant. We do not find any merit in this appeal.
6. In the result, the appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
(D.M.J) (C.S.K.J)
05.08.2009
Index : Yes/No
Internet : Yes/No
mra
D.MURUGESAN, J.
and
C.S.KARNAN, J.
mra
Pre-delivery order in
O.S.A.No.70 of 2009
and
M.P.No.1 of 2009
05.08.2009
Pre-delivery Judgment in O.S.A.NO. 70 0F 2009
(FOR CONSIDERATION)
To:
THE HON’BLE MR.JUSTICE D.MURUGESAN
JUSTICE C.S.KARNAN
JUSTICE C.S.KARNAN
To:
THE HON'BLE MR.JUSTICE D.MURUGESAN Pre-delivery Judgment in O.S.A.Nos. 331 and 332 of 2008 (FOR CONSIDERATION) JUSTICE C.S.KARNAN