Process of Arbitration
With a view to ensuring speedy and effective resolution of claims, differences and disputes between non-Trading Members and Trading Members and Trading Members inter-se, BSE has laid down an Arbitration Mechanism. This mechanism is duly embodied in the Rules, Bye-laws and Regulations of BSE, and duly approved by the Government of India/SEBI, under the Securities Contracts (Regulation) Act, 1956.
Effective from 31st January, 2009, Applications for Arbitration are filed at the concerned Regional Investor Service Centre (Mumbai, Delhi, Kolkata and Chennai) covering that State or Union Territory of India mentioned at Column 2 below against the respective centres. Effective from 1st October, 2012,
the Exchange has started its Arbitration mechanism at four new Regional Investor Service Centres at Hyderabad, Ahmedabad, Indore and Kanpur covering the States or Union Territory as referred to in Column 2 below against the respective centres. The investors shall approach the concerned Regional Investor Service Centre within whose geographical location, the most recent address / registered office address of the constituent, as duly communicated in writing to the Trading Member in accordance with regulatory requirement is located. Provided in respect of a non-resident Indian Constituent, the Seat of Arbitration shall be Regional Investor Service Centre which covers the States or Union Territory given in Column 2, the address or the Registered Office address, as the case may be, of the Trading Member, depending upon corporate or non-corporate membership of the Trading Member lies. The hearings shall be held in the concerned Regional Investor Service Centre in where the Applicant has filed the Application for Arbitration.
Jurisdiction of courts
203/204,' Abhishree Avenue'
Near Nehru Nagar Circle
S. M. Road,Ambawadi
Ahmedabad - 380 015
Telephone No.: 079-2640 2992 / 2646 2992
Fax No.: 079 - 2640 2992
E-mail Id: firstname.lastname@example.org
No.4, Vijaya Towers, 3rd Floor Kodambakkam High Road
(Opp.to Palm Grove Hotel)
Chennai – 600 034
E-mail Id: email@example.com, firstname.lastname@example.org
| Karnataka, Kerala, Tamilnadu, Andaman & Nicobar, Lakshadweep, Pondicherry
15th Floor, Dr. Gopal Das Bhawan,
28 Barakhamba Road, Connaught Place
New Delhi - 110 001
Tele. No. :011-43007413/14/15/16
E-mail Id:email@example.com, firstname.lastname@example.org
|Delhi, Haryana, Uttaranchal, Himachal Pradesh, Punjab, Jammu & Kashmir, Chandigarh
Flat 304 Right Wing, Amrutha Villa
Opp. Yashoda Hospital
Raj Bhavan Road
Hyderabad - 500 082
Telephone No.: 040 - 3060 5844 / 45
Fax No.: 040 - 3060 5846
E-mail Id: email@example.com
201, Palika Plaza
Phase II, MTH Compound
Tele No.: 0731-4008208 (Ms. Sheron Goyal)
Fax No.: 0731-4008222
5th Floor, Padam Towers
14/113, Civil Lines
Kanpur - 208001
57 Jawaharlal Nehru Road,
Horizon, 2nd Floor Near Rabindra Sadan Metro
Kolkata - 700 071
Tele. No. :033-22821375,
E-mail Id:firstname.lastname@example.org, email@example.com
| West Bengal, Bihar, Jharkhand, Orissa, Assam, Arunachal Pradesh, Mizoram, Manipur, Sikkim, Meghalaya, Nagaland, Tripura, Chhattisgarh
Department of Investor Services,
Cama Building, 1st floor, Dalal Street,
Fort, Mumbai – 400001.
Tele. No.: 022-22721233/34
Fax No.: 022-22723677
E-mail Id: firstname.lastname@example.org
| Maharashtra, Goa, Daman & Diu, Dadra & Nagar Haveli
The Courts in Mumbai shall have exclusive jurisdiction in respect of all proceedings to which the Exchange is a party, and in respect of all other proceedings, the Courts having jurisdiction over the area in which the respective Regional Investor Service Centre is situated, shall have jurisdiction.
All dealings, transactions and contracts which are subject to the Rules, Byelaws and Regulations of the Exchange and every arbitration agreement to which the Rules, Bye-laws and Regulations of the Exchange apply shall be deemed in all respects to be subject to the Rules, Bye-laws and Regulations of the Exchange and shall be deemed to be and shall take effect as wholly made, entered into and to be performed in the city of Mumbai and the parties to such dealings, transactions, contracts and agreements shall be deemed to have submitted to the jurisdiction of the Courts in Mumbai for the purpose of giving effect to the provisions of the Rules, Bye-laws and Regulations of the Exchange. Provided however that upon the amendments to the Rules, Bye-laws and Regulations with regard to Regional Arbitration Centers and other incidental and consequential matters in connection therewith or relating thereto coming into force, the Courts in Mumbai shall have exclusive jurisdiction in respect of all proceedings to which the Exchange is a party, and in respect of all other proceedings, the Courts having jurisdiction over the area in which the respective Regional Arbitration Centre is situated, shall have jurisdiction.
The disputing parties, namely the Trading Member and Non-Trading Member are expected to send documentary proof like contract notes, bills, Ledger account, statement of accounts and other relevant documentary proof along with the prescribed Arbitration Form, duly filled in to the respective Regional Arbitration Centre.
The Arbitral Tribunal is appointed from the Arbitration Committee appointed for the purpose. The Committee consists of retired Judges of High Court, experienced Solicitors, Advocates, Chartered Accountants, Compnay Secretaries and other experts. Arbitral Tribunals, consisting of arbitrator / s other than non-trading members are appointed to decide the disputes between the Trading Member and Non-Trading Members.
I Arbitration between Trading Members inter-se
The provisions relating to Arbitration Committee which deals with arbitration between Trading Members inter-se are laid down in the Bye-laws Nos.282 to 315 of the Rules, Bye-laws and Regulations of Exchange.
A three-tier arbitration machinery has been provided at BSE to decide on disputes between the Trading Members. All claims, complaints, differences and disputes between Trading Members arising out of or in relation to any bargains, dealings, transactions or contracts are subject to arbitration and are referred to the Arbitration Committee. The Arbitration Committee is appointed by the BSE's Board of Directors, every year.
Lower Bench Arbitration
A Bench of three Arbitrators from the Arbitration Committee is constituted to look into such disputes if the value of the claim exceeds Rs. 25,000, while only one arbitrator hears the dispute if value is less than Rs. 25,000. A Trading Member filing an arbitration reference is required to attach a coupon of Rs.100/- along with his arbitration application. Both, the applicant and the respondent or their authorised representatives are required to be present in the arbitration meetings. After hearing the parties, the arbitrators give the Award.
An aggrieved Trading Member, who is not satisfied with the award of the Lower Bench Arbitration Committee, may file an appeal before the Full Bench of the Arbitration Committee within seven days from the date of receipt of the award by him if the principal amount of the claim disallowed by the lower bench to the Appellant exceeds Rs 1,00,000 or if the amount awarded against the Appellant by the lower bench (without taking into account interest from the date of Award) exceeds Rs.1,00,000. The Trading Member who desires to file an appeal before the Full Bench of the Arbitration Committee is also required to deposit the amount of the Award or shares as stated in the Lower Bench Award with BSE along with a fee of Rs. 500. The deposit amount/shares are retained with BSE until the case is decided by the Full Bench. In the Full Bench Arbitration meetings, all the members of the Arbitration Committee decide the case of Appeal against the Award of the Lower Bench.
Appeal before the Board of Directors
A Trading Member who is not satisfied with the award of the Full Bench Arbitration Committee may prefer an appeal before the Board of Directors if the principal Amount of claim disallowed by the full bench of the Arbitration Committee to the party dissatisfied with the Award exceed Rs. 5,00,000 or if the amount awarded by the full bench against a party dissatisfied with the Award (without taking into consideration interest from the date of Award ) exceeds Rs. 5,00,000. An Appeal should be filed within seven days from the date of the Award of the Full Bench Arbitration Committee by paying a fee of Rs. 750 and also by depositing the Award amount / shares as stated in the Award with the Stock Exchange. The Board of Directors is the final Appellate Authority in the case of arbitration between Trading Members. Beyond this level, there is normally no Appeal provision but in exceptional situations, the Board of Directors may permit a Trading Member to make a further appeal to Court of Law.
III Arbitration between Non-Trading Members and Trading Members
Bye-laws Nos. 248 to 281 of the Rules, Bye-laws and Regulations of BSE deal with the procedure regarding arbitration between non-Trading Members and Trading Members of BSE.
Period for filing Arbitration : The period for filing the claim in Arbitration is governed by the Law of Limitation Act, 1963 and the period consumed during the process of Investor Grievance Redressal Committee is excluded for computing the period under the Law of Limitation Act, 1963.
An Arbitral Tribunal of one arbitrator is appointed, in case the value of the disputed claim is upto Rs. 25 lakhs, If the value of claim is greater than Rs. 25 lakhs, an Arbitral Tribunal of three arbitrators is appointed. Arbitral Tribunals constituted, comprise of only non-trading Member / s to decide such arbitration referenes. A party dissatisfied with the Award given by the Lower Bench can file an Appeal with the Appellate Bench under the Rules, Bye-Laws and Regulations. In case if appeal is preferred in, the same is decided by the Appellate bench of three Arbitrators and the Award passed by the Appellate Bench is final and binding on the parties subject to challenge u/s 34 of Arbitration and Conciliation Act, 1996. The award is enforceable as if it is the decree of the Court on expiry of a period, provided under section 34(i) of Arbitration and Conciliation Act, 1996. Bye-laws of BSE provide that an arbitration reference be decided normally within a period of 4 months, from the date of Appointment of Arbitrators. However, an extension for a maximum period of 2 months may be considered by, the Exchange.
Process of Arbitration
Applications may be filed by non - Trading Members against Trading Members and vice-versa. The disputing parties are advised to refer to Bye Law 252 of BSE, relating to 'Limitation', while filing an Arbitration application with BSE.
Arbitration application forms (Form 1, 2, 1A, 2A; as applicable) along with Form 20/21, Claim Sheet, Check List, Instructions and list of Arbitrators could be downloaded from the BSE's website and is also available free of cost at Regional Investor Service Centres of BSE.
Documents to be submitted
Following are the documents to be submitted for filing an application for arbitration:
||Statement of the case explaining brief history of the relationship of applicant with the respondent, details about the dispute and the nature of transaction/s and bifurcation of the claim amount into claim on account of genuine delivery based transaction and square off transaction/s.
||Contract Notes pertaining to the transaction in dispute
||Bills issued/ received by the applicant
||Copy of the Statement of Accounts given by the Trading member.
||Documents pertaining to receipt / delivery of shares
||Any other documents in support of the claim
||An accurate list of the documents produced
||PAN / GIR No. of the applicant
||Certified copy of the Balance Sheet of the applicant showing the dues
||Copy of acknowledgement of the latest Income Tax Return
There are various forms for Arbitration proceedings depending upon whether the claim amount is up-to Rs. 25 lakhs or above.
In case of claims up to Rs. 25 lacs
, the applicant proposes the names of three Arbitrators and respondent gives consent to any one of them and such person consented by the respondent acts as an Arbitrator in the matter. In case the respondent fails to consent or refuses to consent to any of the proposed Arbitrators, the Managing Director, and Chief Executive Officer of BSE as per Rules, Bye-laws and Regulations of BSE, appoints the Arbitrator in the matter. (Fees will be applicable as per the fee structure). Both the parties to deposit the fees and the fees deposited will be refunded to the Award holder after deducting the statutory charges.
Deposit of the fees will be exempted for applicant client in case where the claim amount is up to Rs. 10 Lakhs for Arbitration Reference filed on or after November 7, 2012 onwards.
In case of claims above Rs. 25 lacs
, an Arbitral Tribunal of three Arbitrators is appointed; one each by an Applicant, Respondent and the Managing Director or Chief Executive Officer of BSE under its Rules, Bye-Laws and Regulations. If parties or any of the parties authorize/s BSE to appoint an Arbitrator on his / her / their behalf or if the parties or any of the parties fail/s to appoint the Arbitrator/s, the Managing Director or Chief Executive Officer of BSE, appoints the Arbitrator/s on their behalf. (Fees will be applicable as per the fee structure). Both the parties to deposit the fees and the fees deposited by the party in whose favour the award is finalized will be refunded to him / her after deducting the statutory charges.
A copy of the documents filed by the applicant along with Forms 3, 4 and 5 / 3A, 4A and 5A (as applicable) are sent to the respondent advising him / her / them to submit the details of counter claim, if any, consent to the proposed arbitrator / appointment of arbitrator (as applicable), payment of arbitration fees (as applicable). The above forms are also available on BSE website through downloads. Both parties are intimated by BSE regarding the appointment of arbitrators.
Subsequently, Notice of Hearing is sent to the parties. The hearings are then arranged as decided by the Arbitrators. Minutes of every hearing is prepared and taken on record. Advocates may appear on behalf of each party subject to permission from the Arbitral Tribunal.
As per the provisions of Bye-laws 254 of the Rules, Bye-laws and Regulations of BSE, " the Arbitral Tribunal shall make the award within four months from the date of appointment of Arbitrators or within an extended time, as if approved by the Managing Director and Chief Executive Officer of BSE, shall not be more than two months. The award has to be a speaking award. Ex-parte awards are also given. The final award is printed on stamp paper of Rs. 100 and signature / s of Arbitrator / s are obtained on the final award. The award is forwarded to the applicant as well as to the respondent.
Any party to the arbitration, within 15 days from the date of receipt of Award, may request the Arbitral Tribunal to correct any computational / arithmetical / clerical / typographical / any error or to give an interpretation of a specific point or part of the Award or to make an additional Award as to claims presented in the Arbitration proceedings, but omitted in the Award.
Appeal provision in the Bye-laws pertaining to Non-Trading Member V/s Trading Member Arbitration
Appeal against the Award of the arbitrators is to be filed within 30 days from the date of receipt of the award.
A party appealing against an award is required to deposit with the Exchange, the amount or securities (or value thereof) due under the Award, if the award has been passed against him. This amount is deposited with an understanding that the said amount shall be released to the party in whose favor the Appeal is decided, if the same is not challenged in the Court under the provisions of Arbitration and Conciliation Act, 1996.
Fees for Appeal:
A party appealing against an award is required to pay the necessary appeal fees as decided from time to time.
Appeal Memo :
A party desiring to prefer an appeal against an award of the Arbitrator(s) is required to submit five sets of Memorandum of Appeal.
Appeal Bench :
The Appeal filed by a party against a Lower Bench award will be heard and decided by an Appeal Bench of three Arbitrators, appointed by the Managing Director or Chief Executive Officer of BSE. The Appeal Bench decides the appeal within three months from the appointment of Arbitrators or within an extended time, which if approved by the Managing Director or Chief Executive Officer of BSE, which shall not be more than two months.
Various forms for arbitration proceedings:
Forms 1 and 2 are meant for the usage of the applicant for cases where the claim is up to Rs. 25,00,000/-.
Forms 1A and 2A are meant for the usage of applicant for cases where the claim is above is. 25,00,000/-.
Form 20 may be used by either parties if intends to appoint advocate to appear in the arbitration proceedings.
(Form 12) mentioning clearly therein the grounds of objections to the Award appealed from along with copies of relevant documents.
Please click for the Forms, for filing in a Regional Investor Service Centre within geographical jurisdiction
Settlement of awards
If an Award is given against a Trading Member of BSE, the member is advised to deposit the awarded amount with the Exchange or make the payment directly to the award holder, within specified time period. If the member fails to do so, the awarded amount is set aside from the deposits of the trading member with the Exchange. If there are no funds available, a show cause notice is issued by BSE to the Trading Member. If the member still do not make the payment, matter is placed before the Disciplinary Action Committee (DAC) for suitable directions in the matter, including declaring the trading member, as defaulter.
Unless challenged by either of the parties, an arbitration award becomes a decree after expiry of the relevant period as applicable in law and a decree can be executed through a competent court of law.
Settlement of awards against defaulter members
An Award against a defaulter Trading Member, is placed before the Defaulters' Committee (DC). The Defaulters' Committee recommends payment to the award holder from the Investors Protection Fund (IPF) of the Exchange to the extent of award amount or maximum permissible amount from the fund, whichever is lower. At present the maximum amount payable from the IPF, per client per defaulter is Rs. 15,00,000/-, which shall be applicable to the clients of the Trading Member of the Exchange, who will be declared Defaulter after 5th December, 2009. The claims which are found to be eligible for payment as per the Trust Deed of IPF are considered by the Committee for recommending payments from the fund.
The Committee in its periodical meetings considers the various assets available in the account of the defaulter and appropriate the same as per the order of priority specified under the Rules, Bye-laws and Regulations of the Exchange. The clients who obtain the arbitration awards are considered for payment from the assets of the Defaulter.
Assets of a Trading Member comprises of the following :
Priority of Disbursement
- Securities to be received by the Trading Member for the settlement.
- Membership security deposit (in terms of cash, Fixed Deposit Receipts, securities lying with BOI Shareholding Limited).
- Any Deposits lying in the account of defaulter with the Exchange.
- Bad Deliveries claimed by the Trading Member (who is subsequently declared defaulter), when rectified by the respective Trading Member. When a Trading Member is declared a defaulter, the DC clubs all these assets and disburses the same priority wise as given below. Liabilities of a defaulter arise only out of those transactions which are executed through the trading mechanism of the BSE.
Once a Trading Member has been declared a defaulter, his liabilities are settled in the following order of priority as provided under the Rules, Bye-laws and Regulations of the Exchange :
- Dues of the Trade Guarantee Fund.
- Dues to SEBI, BSE, and Clearing House, as decided by DC.
- Trading Members who have obtained arbitration awards against the defaulter.
- Non-Trading Members (clients of defaulter) who have obtained arbitration awards against the defaulter.
- Dues to the Investor Protection Fund (IPF).
Only in case the 1st preference in the above mentioned list is satisfied fully, the Committee proceeds towards the 2nd preference in the list, and so on. In case the 1st preference has been fully satisfied and the remaining assets are not sufficient to satisfy the next preference fully, the next preference is satisfied on a pro-rata basis, and so on. In case a Court of Law declares the defaulter as adjudicated insolvent, all the above claims stand at par.
Further details are available in the Exchange Notice Number
20100826-24 dated 26th August 2010
20100907-26 7th dated September 2010
20110223-26 dated 23rd February, 2011
20120928-31 dated 28th September, 2012
20121109-5 dated 9th November, 2012.