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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