Arbitration

CHAPTER XVI

ARBITRATION OTHER THAN BETWEEN MEMBERS Reference to Arbitration

253. All claims (whether admitted or not), differences and disputes between a member and a non member or non-members (the terms "non-member" and a "non-members" shall include an authorised assistant or employee or any other person with whom the member shares brokerage) arising out of or in relation to dealings, transactions and contracts made subject to the Articles, Bye-laws and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their construction, fulfillment or validity or transactions and contracts shall be referred to and decided by arbitration as provided in the Articles, Bye-laws and Regulations of the Exchange.

Contract Constitutes Arbitration Agreement

254. An acceptance whether express or implied of a contract subject to arbitration as provided in Clause 253 and with this provision for arbitration incorporated therein shall constitute and shall be deemed to constitute an agreement between the member and the non-member or non-members concerned that all claims (whether admitted or not), differences and disputes of the nature referred to in clause 253 in respect of all dealings transactions and contracts of a date subsequent to the date of the contract shall be submitted to and decided by arbitration as provided in the Articles, Bye-laws and Regulations of the Exchange and that in respect thereof any question whether such dealings, transactions and contracts have been entered into or not shall also be submitted to and decided by arbitration as provided in the Articles, Bye-laws and Regulations of the Exchange.

Reference to Arbitration Sub-committee

255. All claims, differences and disputes required to be referred to arbitration under these provisions shall be referred to the Arbitration Sub-committee for the time being constituted by the Committee.

Award by Arbitrators

256. The arbitrators shall make their award within four months after entering on the reference or within such extended time as the arbitrators may fix with the consent of the parties to the reference or as the Committee or the President may allow.

Publication of Award

257. After making the award the arbitrators shall sign award and a notice shall be given to the parties of the making and signing thereof.

Award Binding on P arties and Their Representatives

258. The parties to the reference shall in all things abide by and forthwith carry into effect the award of the arbitrators which shall be final and binding on the parties and their respective representatives notwithstanding the death of or legal disability occurring to any party before of after the making of the award and such death or legal disability shall not operate as a revocation of the reference or award.

urther Award

259. Whenever an award made under these provisions directs that a certain act or things be done by one party to the reference and such party fails to comply with the award, the other party may make a fresh reference to arbitration as provided in the articles, bye-laws and regulations of the Exchange for a further award for determining the dispute outstanding or the mount of damages or compensation payable by reason of such failure and the award therein may be filed separately or together with the original award.

Filing of Award

260. The Arbitration Sub-committee shall at the request of any party to the reference or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the reference and award and of the costs and charges of filing the award cause the award or a signed copy of it to be filed in Court.

Fresh Reference on Annulment of Award

261. Whenever an award given under these provisions is set aside by the Court, the matter shall be again referred to arbitration as provided in the articles, bye-laws and regulations of the Exchange and the claims, differences and disputes shall be decided by arbitration only.

Extension of Time for Making the Award

262. The Committee or the President may, if deemed fit whether the time for making the award has expired or not and whether the award has been made or not, extend, from time to time, the time for making an award by a period not exceeding one month at a time from the due date or extended due date of the award.

Committee to Prescribe Fees, Forms & Procedure

263. The fees to be paid, the forms to be used and the procedure to be followed in connection with a reference to arbitration under these provisions shall be such as are prescribed in the relative regulations or such other as the Committee may from time to time prescribe in addition thereto or in modification or substitution thereof.

Fee and Changes

264. The fees in arbitration and the charges for submitting and regulating the proceedings of the reference prescribed in Regulation shall be payable in advance and when there is failure, neglect or refusal on the part of a party or parties to pay accordingly the other party shall be responsible for making such payment in advance without prejudice however to his right, if any, to recover the same from such party or parties failing, neglecting or refusing to pay. It shall be a condition precedent to the hearing of any reference that the prescribed fees and charges shall have been paid in advance to the Exchange by the party or parties to the reference. The Exchange shall collect all such fees and charges and make the necessary payments provided always that no larger sum shall be paid than actually collected.

Decision on Written Statements or by Hearings

265. A reference may be decided by the arbitrators on the written statements of the parties. However, any party may require of the arbitrators that he be given a hearing. In that event he shall be so heard and the other party or parties shall have a similar privilege.

Proceedings

266. The arbitrators may proceed with the reference notwithstanding any failure to file a written statement within due time and may also proceed with the reference in the absence of any or all the parties who after due notice fail or neglect or refuse to attend at the appointed time and place.

Adjournment of Hearings

267. The arbitrators may adjourn the hearings from time to time upon the application of any party to the reference or at their or his own instance. Provided, however, when the adjournment is granted at the request of one of the parties to the reference, the arbitrators may, if deemed fit, require such party to pay the fees and costs in respect of the adjourned hearing borne by the other party and in the event of such party failing to do so may refuse to hear him further or dismiss his case or otherwise deal with the matter in any way the arbitrators may think just.

Legal Advisers and Evidence

268. During a hearing the parties to the reference and or their office employees conversant with the facts of the case may appear before the Arbitration Sub-committee but no party shall be entitled to insist to appear by counsel, attorney or advocate or such other authorised representative or to insist that the arbitrators do hear or examine witnesses or receive oral or documentary evidence other than what is deemed necessary by the Arbitration Sub-committee.

Consideration of Recorded Proceedings and Evidence

269. If the time prescribed in these provisions for making an award has been allowed by the arbitrations to expire without making an award or if an arbitrator dies or fails or neglects or refuses to act or becomes incapable of acting as an arbitrator, the substitute arbitrator appointed by the Committee or the President and the other arbitrator appointed by the Committee shall be at liberty to act upon the record of the proceedings as then existing and on the evidence if any then taken in the reference or to commences the reference de novo.

Reference to Court of Law

270. No reference shall be made by the arbitrators to any Court of Law on any matter arising out of or relating to any reference without first obtaining the permission of the Committee.

Set-off and Counter-claims

271. On a reference to arbitration by one party the other party or parties shall be entitled to claim a set off or make a counter-claim against the first party provided such set-off or counter-claim arises out of or relates to dealings, transactions and contracts made subject to the Articles, Bye-laws and Regulations of the Exchange and subject to arbitration as provided therein and provided further such set-off or counter-claim is presented together with full particulars at or before the first hearing of the reference but not afterwards unless permitted by the arbitrators.

Award to Adjudge Interest

272. Where and in so far as an award is for the payment of money the arbitrators may adjudge in the award the interest to be paid on the principal sum adjudged for any period prior to the institution of the arbitration proceedings and may also adjudge the additional interest on such principal sum as is deemed reasonable for the period from the date of the institution of the arbitration proceedings to the date of the award and further interest on the aggregate sum so adjudged at such rate as is deemed reasonable from the date of the award to the date of payment or the date of the decree.

Costs

273. The costs of reference and award including costs, charges, fees and other expenses shall be in the discretion of the arbitrators who may decide and direct in the award to and by whom in what manner and in what proportion such costs, charges, fees and other expenses or any part thereof shall be borne and paid by the parties and may tax and settle the amount to be so paid or any part thereof. Failing any direction in the award the costs, charges, fees and other expenses shall be borne by the parties to the reference in equal proportion. A party refusing to carry out an award shall pay the costs between attorney and client in connection with the filing of the award in the Court and its enforcement unless the Court otherwise directs.

Operation of Contracts.

274. All dealings, transactions and contracts which are subject to the Articles, Bye-laws and Regulations of the Exchange and every arbitration agreement to which the Articles, Bye-laws and Regulations of the Exchange apply, shall be deemed in all respects to be subject to the Articles, 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 Calcutta and the parties to such dealings, transactions, contracts or agreements, shall be deemed to have submitted to the jurisdiction of the Courts in Calcutta for the purpose of giving effect to the provisions of the Articles, Bye-laws and Regulations of the Exchange.

Notice and Communications How to be Served On a Non-member

275. Notice and Communications to a non-member shall be served at his ordinary business address and/or at his ordinary place of residence and/or at his last know address in any one or more or all of the following ways, namely:

  • By delivering it by hand;
  • By sending it by registered post;
  • By sending it under certificate of posting;
  • By sending it by express delivery post;
  • By sending it by telegram;
  • By affixing it on the door at the last known business or residential address;
  • By its oral communication to the party in the presence of a third person;
  • By advertising it at least once in any daily newspaper published in Calcutta;
  • By a notice posted on the Notice Board of the Exchange if no address be known.

Service By Hand Delivery When Complete

276. A notice or communication served by hand shall be deemed to have been received by the party on the production of a certificate to that effect signed by the person delivering the notice or communication.

Service By Post or Telegram When Complete

277. A notice or communication served by post or telegram shall be deemed to have been received by the party at the time when the same would in the ordinary course of post or telegram have been delivered. The production of a letter of confirmation from the post office or of the post office receipt for the registered letter or telegram or of a certificate of posting shall in all cases be conclusive proof of the posting or despatch of such notice or communication and shall constitute due and proper service of notice.

Refusal to Accept Delivery Does Not Affect Service

278. In no case shall any refusal to take delivery of the notice or communication affect the validity of its service.

Service by Advertisement or by Notice on Notice Board When Complete

279. A notice or communication published in a newspaper or posted on the Notice Board of the Exchange shall be deemed to have been served on the party on the day on which it is published or posted. If any notice or communication required to be given by posting on the Notice Board be not so posted but advertised at least once in any daily newspaper it shall be deemed to have been duly served on the party concerned.

Ministerial Duties

280. The Secretary or the Assistant Secretary or an employee or employees of the Exchange under his authority shall –

  • maintain a register of reference;
  • receive all applications for arbitration, reference and communications addressed by the parties before or during the course of arbitration or otherwise in relation thereto;
  • receive payment of all costs, charges, fees and other expenses;
  • give notices of hearing and all other notices to be given to the parties before or during the course of the arbitration or otherwise in relation thereto;
  • communicate to parties all orders and directions of the arbitrators;
  • receive and record all documents and papers relating to the reference and keep in custody all such documents and papers except such as the parties are allowed to retain;
  • publish the award on behalf of the arbitrators;
  • cause the award to be filed on behalf of the arbitrators;
  • and

  • generally do all such things and take all such steps as may be necessary to assist the arbitrators in the execution of their functions.

Indemnity

281. No party shall bring or prosecute any suit or proceedings whatever against the Exchange, the Committee, the President, the Secretary or any employee or employees of the Exchange acting under his authority or against the arbitrators for or in respect of any matter or thing purporting to be done under these provisions nor any suit or proceedings (save for the enforcement of the award) against the other party or parties to the reference.

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