AWARD Before Sh. S S Agarwal the Sole Arbitrator Arbitration Matter No: D-052/2011 In the matter of Arbitration on disputes between Manju Sharma E-443, Gali No-77, Mahavir Enclave-III, New Delhi-110059 Claimant & SMC Global Securities Ltd. 1116B, Shanti Chambers, Main Pusa Road, New Delhi-110005 Respondent A. Whereas certain disputes arose between Manju Sharma and SMC Global Securities ltd. regarding certain transactions through National Stock Exchange and whereas I, S.S. Agarwal, was appointed as Sole Arbitrator by National Stock Exchange of India Ltd. under their Letter No. NSE/ARBN/D- 052/2011/2455/2011 dated 24.06.2011. B. Whereas the claimant filed her case for the claim and the Respondents filed Written Statement dated 02.07.2011 & further Written submissions in Aug 2011, the Claimant filed further submissions dated 13.08.2011. AND C. Whereas I have carefully gone through, examined, considered and analyzed the matters in disputes and the claims, the documentary evidence advanced by them, their arguments and submissions and heard the oral arguments and submissions made by them during the hearing on 03.08.2011. AND D. Whereas both the parties were given full opportunity for presenting their respective cases.
E. The applicant has broadly brought out as under: (a) Her Demat Account with SMC Global Securities Limited was opened on 01.09.2010 and copy of relevant papers for opening the said account were received by here on 26.09.2010. After seeing the said papers she came to know that her e-mail address was changed from"gautamsharam80@yahoo.com"to"gautamsharma98@yahoo.com" because of which she was not getting any information about her transactions. When she made complaint about this, she was told that her e-mail address would be corrected but the address was not corrected by the Respondent for many days. The password given by the Respondent to her for seeing here account had also been blocked by the Respondent, as such she could not login into her account and she had to wait for another password till her e-mail address was corrected. (b) Later on she got a form from the Respondent, updating her e-mail address as "gautamsharma80@yahoo.com". After filling the said form, she was intimated through e-mail dated 22.10.2010 that her e-mail address had been updated. Thereafter she was able to login into her account and could know about the transactions made in her account. She could understand that her e-mail address was changed by the Respondent knowingly and was not corrected even after projections in that regard with the intention of making transactions in her account by the Respondent. It is only on 26.09.2010 after seeing her account, she come to know that wrong
transactions had been made in her account from 13.09.2010 without her permission. She had made a complaint on 14.10.2010 to the Respondent about transactions in her account without her permission but she was informed that she was intimated about all transactions through SMSs, E mail and physical discharge of the information. She had refuted the contention of the Respondent, mentioning that she did not get any SMS as the Government had prohibited blocked SMSs. Further, she could not get any information through E-mail as these would have been sent to the wrong e-mail address. Her e-mail address was corrected only on 12.10.2010. She has also mentioned that she did not get any confirmation through physical form as till date she had not received any confirmation from the Respondent in the physical form. She got the confirmation of transactions through contract notes received through Shri Sandeep Gandhi of NSE. (c) As regards recording of the talk, she has mentioned that no confirmation was taken by the Respondent from her registered Mobile No.9891572918. When the account was opened by her, she was informed that the orders will be accepted by the Respondent only when made from the registered telephone number and a recording of the same shall be kept on record. But the Respondent has not produced any recording. The Respondent has been assuring her that in future they will make transactions only with her permission but they did not comply with that, as such she sent through e-mail a scanned copy of her letter dated 14.10.2010 at 10.25 a.m. but the
Respondent still continued making transactions in her account without her permission. (d) She has suffered a loss of Rs.33,000/- approximately because of transactions made by the Respondent without her permission which she has demanded for. She had also enclosed the details of here mobile calls from here mobile phone. F. In his reply, the Respondent has broadly brought out as under: a) The Respondent had replied to the grievances of Applicant/Claimant before IGRC-NSE through his letter dated 04.02.2011 which is at Annexure-1 to his reply and, in absence of substantial ground, the claim of the Claimant had been disposed off. b) The Applicant had signed member client agreement dated 31.08.2010 which is at Annexure - 2. Unique client code HQA 0315 was assigned to the applicant and thereafter all trades were executed in the said code which was never modified. c) After opening of her account in August 2010, trades in cash segment and future segment were executed and a copy of the same is attached in the ledger account which is at Annexure - 3. The contract notes for the trades were sent to her digitally and log report for delivery of the contract notes is attached at Annexure - 4. The contract notes were
regularly provided to her digitally on her e-mail ID "gautamsharma98@yahoo.comn which was provided by her in the Client Registration form(crf) and later on her modified e-mail address" autamsharma80 ahoo.com" as per modification signed by her, which is at Annexure-5. He had also sent confirmation through SMSs to her registered mobile number no. 9891572918 which is at Annexure-5, giving her ample opportunity to be vigilant about her account for bringing out any discrepancy. Copies of the contract notes are at Annexure - 7. d) The allegations of the Applicant are false, baseless and self contradictory. e) The Respondent has denied the claim of the Applicants and has requested to dismiss the same. He has also prayed that award of Rs.40,000/- to him on account of false complaints made by the Applicant for causing injury to his goodwill. He has also requested for award of Rs.1 0,000/- towards arbitration fee. f) The Respondent has made a counter claim of Rs.50,000/- as a compensation against false allegations made by the Applicant.
G. Broadly my findings are as under: (a) The Respondent has filed a copy of letter dated 04.02.2011 in reply to queries of the NSE in their letter dated 24.01.2011 on the basis of grievances of the Applicant. In the said letter he has mentioned that all trades were executed by him with the consent of the Applicant. He has mentioned that confirmation of all trades were provided by him on her mobile number through SMSs and the confirmation was also intimated telephonically and she did not raise any objection. They have filed a copy of MCA, Statement of Accounts and Contract Notes along with the reply. (b) First hearing was held by me on 08.07.2011. No one was present on that day from the side of either of the parties. It is noted from Form-1 filled by the Applicant that she has mentioned "No" against serial no. 5 of Form-1, thereby showing her intention that she is not interested in any hearing. As none of the parties were present on the first hearing, it was decided to by me to give another chance to the parties to present their case during the next hearing fixed for 03.08.2011. (c) During the hearing on 03.08.2011, Shri Gautam Sharma was present on behalf of the Applicant and Shri Saurabh Mishra was present on behalf of the Respondent. The reply on behalf of the Respondent was filed during the above hearing and copy of the same was given to the
Applicant also who confirmed that he does not want to file any rejoinder. Both the parties made their arguments. The Respondent wanted to file written submissions by 10.08.2011. He was allowed to file the same by the above date with copy to the Applicant. The Applicant had agreed to file reply to the said written submissions by 17.08.2011. I had decided to go through the above documents and examine if there was any need for any further hearing and to publish the award in due course in case I felt that there was no necessity for further hearing. (d) The Respondent filed written submissions on 10.08.2011 in which he has mentioned that the e-mailid"guatamsharma98@yahoo.com.. was provided by the Applicant. He had provided a welcome kit to the Applicant incorporating vital information including details pertaining to her e-mail account but she had not objected for the same and now she cannot be allowed to deny the fact on the principle of "ESTOPPEL". The Respondent has filed the CD mentioning that date wise confirmation of the trades by the Applicant or her husband are contained in the CD which has been filed by him. He has further mentioned that cheques dates 06.09.2010, 16.09.2010 & 29.09.2010 for Rs.25,000/-, 15000/- and 10,000/- respectively were given by the Applicant although the cheque of Rs.10,000/- had bounced back. The said cheques clearly indicate that the trades were made with her
consent before the bouncing back of the said cheque of Rs.10,000/-. Her account showed a credit of Rs.29,822.06 out of which she had taken a payout of Rs.7371.76/- on 18.10.2010, leaving a balance of Rs.22,510.30, as such she should have demanded only Rs.22,51 0.30/. The Respondent has requested that the Applicant should be ceased to plead her claim of Rs.33,000/-. (e) The Applicant has also sent a reply dated 13.08.2011 in which she has repeated some of her contentions mentioned hereinbefore. Besides, she has mainly denied the contention of the respondent for recording of all communications on phone. However, it is important to note that the applicant had issued cheque of Rs.15,000/- which was credited to her account on 16.09.2010. The said cheque was issued after a debit of Rs.23918.90 was made in her account on account of certain transaction dated 13.09.2010. In case the transactions on 13.09.2010 were made without her consent, what was the need for her to issue the said cheque of Rs.15,000/-. Therefore, I do not find any weight in the case of the applicant and hold that there is no necessity of any further hearing. In any case, the Respondent himself has projected available credit of Rs.22,51 0.30 in the ledger ofthe applicant. (f) In view of above, I find that the applicant is entitled to get Rs.22,510.30 from the Respondent.
H. Award I hereby award a sum of Rs.22,510.30 (Rs.Twenty two thousand five hundred ten and paise thirty only) in favor of the Applicant and direct the Respondent to pay the same within 45 days from the date of this award. Further, I award simple interest @ 12 % per annum on the above amount in favor of the Applicant from the date of this award till the date of payment of awarded amount in case the above amount is not paid within 45 days from the date of this award. Place: New Delhi Date: 13/10/2011 S S Agarwal (Sole Arbitrator)