FOR A LAW FIRM
Arguments in Defence under A and C Act,1996
There is a common perception that Laws,Acts and Codes are made to give some Structural Parameters to prosecuting BODIES, under which a prosecution must held. Therefore they are often misused rather than been well-used as in this case seems to be. That is why Judges commonly use their discretionary powers sometimes, being remain in the vicinity of these Parameters and sometime they follow a higher court judgements or References, keeping all sorts of Laws, Acts and Codes aside.
In this case ,as this Plaintiff feels, a 'Regular Remained Respondent' in atleast 13-14 other departments, surfaced to be appeared as an Applicant to take an advantage of a particular section34.
That is why he is a bit worried and feels there might be a Roadblock affront the Court.
Some restrictions and obstructions may come further and affect its proceedings, hence bound by this need of the hour he forwards some arguments in the lime light of this Arbitration and Concilation Act,1996 So Court could take a firm Stand or Decision for the sake of justice.
Of course He is doing this for his own safeguards.Preaching or directing this HON,BLE COURT is nowhere near to his motto.
Section 5 in The Arbitration And Conciliation Act, 1996
5. Extent of judicial intervention. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
Argument: Since this matter is now in court, it may intervene in this matter in whatever manner it wants.
Section 6 in The Arbitration And Conciliation Act, 1996
6. Administrative assistance. In order to facilitate the conduct of die arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties,may arrange for administrative assistance by a suitable institution or person.
Argument:There are various complaints where the Plaintiff is not properly assisted by the concerned authorities and even by the Arbitrator himself.His latest complaint is still lying unanswered in the FMC and MCX.
Section 9(ii)(b) in The Arbitration And Conciliation Act, 1996
Interim measures etc. by Court. A party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court-
(b) securing the amount in dispute in the arbitration
Argument: since our Plaintiff is in the feel of this fact that he has been very skillfully trapped u/s 34, therefore he requests to this Hon,ble court that his award money would be secured till any final outcome, as per the above section.
Section 12(3) in The Arbitration And Conciliation Act, 1996
(3) An arbitrator may be challenged only if-
(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or
Argument:: Here Impartiality does not seem in his favour since much of the time the Arbitrator heard Bonanza, moreover, he noted down 10-15 pages of Bonanza while 3-4 of the plaintiff.Moreover, he ignored all of his facts and evidences.
(b) he does not possess the qualifications agreed to by the parties.
Argument: The Plaintiff has already mentioned that the Arbitrator belongs to the Advocacy therefore totally RAW in the field of Commodity Trade and its complexities.
Section 12(4) in The Arbitration And Conciliation Act, 1996
(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reason, of which he becomes aware after the appointment has been made.
Argument :As a layman our Plaintiff was in this thought that the hearings wlll carry-on from the previous hearing- as always happens in the courts and other prosecuting bodies, but here the Arbitrator initiated from the beginning .Therefore ,In this regard,MCX is outrightly questionable.
Section 13(2) in The Arbitration And Conciliation Act, 1996
(2) Failing any agreement referred to in sub- section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in subsection (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.
Argument::: As the Plaintiff mentioned the award was amended after his ' Review Request' which raises doubts on the follow-Up proceedings which were collectively done by the concerned departments to take the advantage of sec 34.Since he had just read this clause now so got aware d of it thus he challenges this Arbitral penal
Section 13(6) in The Arbitration And Conciliation Act, 1996
(6) Where an arbitral award is set aside on an application made under sub- section (5), the Court may decide as to whether the arbitrator who is challenged is untitled to any fees.
Argument: since Bonanza has much earlier honored the said award thus it is entitled to pay the fees to arbitrator as decided by the Hon,ble Court.Moreover it has dishonored a dignified person who has made 80% of award in bonanza's favor.Differences may occur but at any stage of time nobody would show the courage to summon a Judge in front of another Judge.
Section 13(5) in The Arbitration And Conciliation Act, 1996
(5) Where an arbitral award is made under sub- section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.
Argument:;Could not understand the proper meaning of this clause, perhaps due to the missing of subsection 4, but as per the Plaintiff views, The arbitrator has nowhere used any tinder language therefore present appeal deserve to be dismissed since Bonanza has used derogatory words against the arbitrator at many places.
Section 14(2) in The Arbitration And Conciliation Act, 1996
(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub- section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.
Argument :Here controversy still remains that on what grounds the 1st Arbitrator has left the case and under which rule 2nd Arbitrator started the case as a fresh by ignoring the previous order dated, 25/9/12. Proceedings should be continued and carried-on from there, where it were left.
Section 15(2) in The Arbitration And Conciliation Act, 1996
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.
Argument: Here Plaintiff would like to know, under which rule a non-preferred Arbitrator was appointed as a substitute and why did not he was not handed over the full set of documents alongwith the copy of the previous ORDER. And on WHAT reasons the mandate of 1st Arbitrator was terminated.
Section 15(3) in The Arbitration And Conciliation Act, 1996
(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under subsection (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.
Argument : Here Plaintiff was always in a thought that the proceedings carry-on from the last Hearing as always happen in Courts..thus a thoroughly new hearing gave him the shock.He was never been asked of being agreed on a fresh start,if asked, He strictly negated it.
Section 15(4) in The Arbitration And Conciliation Act, 1996
(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.
Argument:As per this section his previous hearing ORDER,25/9/12 was purely VALID but outrightly neglected by Bonanza,MCX and Ld. substituted arbitrator. Moreover the Arbitrator was not having the previous hearings-related files.Therfore, in my view, that order is still valid.
Section 18 in The Arbitration And Conciliation Act, 1996
18. Equal treatment of parties. The parties shall be, treated with equality and each party shall be given a full opportunity to present his case.
Argument: Like as he has said at many places much of the time t Arbitratorhe heard Bonanza and many of his facts have been out-rightly not only ignored but neither inquired nor investigated.
Section 21 in The Arbitration And Conciliation Act, 1996
21. Commencement of arbitral proceedings.
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.
Argument: He has already mentioned that his arbitration plea was submitted on 23/5/12 and It was reached on 28/5/12 to MCX-Mumbai and Bonanza-Delhi simultaneously, but very first para of the award states that the proceedings got initiated from 9/8/12 i.e. around 3 months later.
Section 24(3) in The Arbitration And Conciliation Act, 1996
(3) All statements, documents or other information supplied to, or applications made to, the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
Argument: Leave out the Parties here. In this regard even subtituted arbitrator did not have the full set of documents pertaining to 1st Hearing and some thereafter Rejoinders.Although he was unaware of that Hearing , its ORDER and its contents, made by the 1st arbitrator.
Section 25(b) in The Arbitration And Conciliation Act, 1996
(b) the respodent fails to communicate his statement of defence in accordance with sub- section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegation of the allegation by the claimant;
Argument: In this context, Plaintiff was not heard properly as a COMPLAINANT but Respondent has been heard much of the time on the contradictory grounds of this Section.
Section 26(1)(a) in The Arbitration And Conciliation Act, 1996
(a) appoint one or more expert to report to it on specific issues to be determined by the arbitral tribunal, and
Argument: As per this section Arbitrator should have taken the services of an Accounting and IT experts since he himself had just Advocacy expertise. That is why he later on could not figure out the reasonable Award amount and nor uttered a single word about ODIN Shortcomings, edited CDs and their transcripts ,Technical Complexities and Reception Failures.
Section 28(3) in The Arbitration And Conciliation Act, 1996
(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
Argument: As per this section arbitrator did not ask anything about the functioning and usages of the trade which need to be essentially applicable for the execution of the transactions. Infact the Arbitrator seemed to be appeared as totally Raw and Novice in this field.
Section 31(3) in The Arbitration And Conciliation Act, 1996
(3) The arbitral award shall state the reasons upon which it is based, unless-
(a) the parties have agreed that no masons are to be given, or
Argument: As per this section t Arbitratorhe did not give the explanations of around 30 points which are raised as point by point counter- reply against the award--submitted in MCX on 11/4/13 -- before the final amendment of the award i.e. on 12/4/13.He must reasoned out those points in that amendment.
Section 34(3) in The Arbitration And Conciliation Act, 1996
(3) An application for setting aside may not be made after three months have elapsed from the date on which die party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had bow disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
Argument: Since the award was made on 7/3/13, dispatched by MCX on 13/3/13. received at both parties maximum end on OR around on 17/3/13-- makes this APPEAL as non-maintainable since it is filed after the expiry of 3 months i.e. on 22/3/13 and summoned after 4-5 days later.
In this regard Bonanza may argue that it has recieved the award after 22/3/13 to justify or testify the Appealing-claim, then court may demand the proof of receiving.Since the Plaintiff had received this award exactly on 17/3/13 by speedpost hence his point of defence, solidify his stand more logically.
Bonanza will also claim that it had made an application u/s 33 then court may use its discretionary power by deciding that the just ''one page of award with a single WORD'' was amended on 12/4/13, then why did MCX took 2 weeks more to deliver it. Was it a pre-planned strategy or not?
All this was done to avail the facility of Appealing and keeping the Plaintiff unaware of these proceedings.
Section 34(4) in The Arbitration And Conciliation Act, 1996
(4) On receipt of an application under sub- section (1), the Court may, where it is
appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
Argument: If at Last,Hon,ble Court does not have any other option or remedy except than ordering aside the Award,Then the Plaintiff appeals that court shall redirect the Arbitrator as per the directions of this section.
Moreover Hon,ble Court should take in its cognizance that if an Respondent is seeming eager to avail the advantage of sec. 34 than there are lots of other Sections in the Act of which many of such advantages should be granted to the Plaintiff.
Plaintiff- -in person
Dated :___________
