India Infoline Ltd & Anr v. Dana Singh Bisht

RAJIV SAHAI ENDLAW, J. AUGUST 07, 2018/'bs'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th August, 2018. + RSA 189/2016 & CM No.25911/2016 (for stay) INDIA INFOLINE LTD. & ANR ..... Appellants Through: Mr. Mukesh M. Goel, Mr. Dilip Kumar Arya, Advs. with Mr. Pradeep Mandal, AR of appellants. Versus DANA SINGH BISHT ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 26th February, 2016 in RCA No.54/2015 (UID No.02401C0358562015) of the Court of Additional District Judge-02 (Central)] of dismissal of the First Appeal under Section 96 of the CPC filed by the two appellants against the judgment and decree [dated 20th April, 2015 in Suit No.59/2013 of the Court of Civil Judge-3 (West)] in favour of the respondent/plaintiff and against the appellants/defendants of recovery of the value of the shares which was in the account of the respondent/plaintiff with the appellants/defendants as on 30th April, 2008, as per the maximum value of each of the said shares between 1st May, 2008 till the date of realisation along with interest @ 9% per annum thereon from 15th May, 2010 till the date of realisation. 2. The appeal came up first before this Court on 22nd July, 2016, when without indicating the substantial question of law arising, notice thereof was ordered to be issued and operation of the impugned judgment and decree stayed on the statement of the counsel for the appellants / defendants that the appellants / defendants had deposited the decretal amount before the First Appellate Court and the respondent/plaintiff was restrained from withdrawing the amount so deposited till the disposal of the appeal. 3. The counsel for the respondent/plaintiff appeared in response to the notice and vide order dated 15th December, 2016, the following substantial question of law was formulated: "Whether the findings of the courts below suffer from illegality and perversity." 4. Thereafter, the appeal has been adjourned from time to time. Though the counsel for the respondent/plaintiff/decree holder has been appearing in these proceedings, though intermittently, but today none appears for the respondent/plaintiff. Need to await the respondent/plaintiff any further is not felt and the counsel for the appellants/defendants has been heard and the Trial Court record requisitioned perused. 5. The first argument of the counsel for the appellants/defendants is that the respondent/plaintiff was having a trading account with the appellants/defendants, stock brokers with the National Stock Exchange and the disputes of the appellants/defendants as stock brokers with their clients are subject matter of statutory arbitration and the Suit Court and the First Appellate Court erred in passing a decree against the appellants/defendants. 6. On enquiry, whether any application under Section 8 of the Arbitration and Conciliation Act, 1996 was filed, the counsel for the appellants/defendants though answers in the negative but states that a plea in that regard was taken in the written statement. Reliance is placed on Sharad P. Jagtiani Vs. Edelweiss Securities Ltd. 2014 (4) Arb. LR 94 (Delhi) (DB) to contend that even if a plea is taken in the written statement and no separate application is filed under Section 8 of the Arbitration Act, the same suffices. 7. I have however enquired from the counsel for the appellants/defendants that if the plea was so taken, though no separate application filed, whether the said plea was pressed before the Suit Court and reference of the parties to arbitration sought and if so, how was the suit allowed to proceed to the stage of final disposal. 8. The counsel for the appellants/defendants in reply, only states that though the First Appellate Court noticed the said plea of the appellants/defendants but has not decided the same. 9. The question is not of taking the said plea in first appeal. The question is, whether