Petitioner in person vs NATIONAL STOCK EXCHANGE OF INDIA LIMITED &

Judgment

1. Conciliation Act, 19962, for reference of the disputes between the 1 11. Appointment of arbitrators- (6) a person, including an institution, fails to perform any function entrusted to a party fails to act as required under that procedure; or the parties, or the two appointed arbitrators, fail to reach an agreement Where, under an appointment procedure agreed upon by the parties,— (a) (b) expected of them under that procedure; or (c) him or it under that procedure, the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. Signature Not Verified 2 “the 1996 Act” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 parties to arbitration. Respondent 2, in this petition, is ICICI Securities Ltd3, who is a stock broker.

2. The disputes arose in the context of an arbitration agreement in the Account Opening Form4 executed between the petitioner and ICICISL. The AOF envisages resolution of the disputes by arbitration and the relevant clause in that regard reads thus: “DISPUTE RESOLUTION The stock broker shall provide the client with the relevant

22. contact details of the concerned Exchanges and SEBI.

23. The stock broker shall co-operate in redressing grievances of the client in respect of all transactions routed through it and in removing objections for bad delivery of shares, rectification of bad delivery, etc. The client and the stock broker shall refer and claims 24. and/or disputes with respect to deposits, margin money, etc., to Arbitration as per the Rules, Byelaws and Regulations of the Exchanges where the trade is executed and circulars/notices issued thereunder as may be in force from time to time.

25. The stock broker shall ensure faster settlement of any Arbitration proceedings arising out of the transactions entered into between him vis-a-vis the client and he shall be liable to implement the Arbitration awards made in such proceedings. The client/stock-broker understands that the instructions 26. issued by an authorized representative for dispute resolution, if any, of the client/stock-broker shall be binding on the client/stock- the said broker representative to deal on behalf of the said client/stock-broker.” in accordance with letter authorizing

3. The existence of the arbitration agreement between the petitioner and ICICISL is not disputed. Signature Not Verified 3 “ICICISL” hereinafter 4 “AOF” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55

4. Pursuant to order dated 17 November 2021 of the learned Civil Judge in CS 677/20215 by which the dispute was referred to arbitration, and the judgment dated 19 July 2023 in Civil Revision 23/20226 passed by this Hon’ble Court, wherein the order dated 17 November 2021 was upheld, the petitioner has now approached this court for appointment of an arbitrator. Facts

5. The petitioner is an individual investor at the National Stock Exchange7, Respondent 1 herein. The NSE operates under the regulatory framework of the Securities and Exchange Board of India8. ICICISL is a share broker company having membership with NSE. The petitioner executed the AOF with ICICISL and is maintaining a share trading and Demat account of shares with ICICISL.

6. The conflict arises in relation to a Futures contract or Stock futures executed on 4 February 2021 and 5 February 2021 by the petitioner in 32,500 shares of Indian Oil Corporation Limited at an average rate of ₹ 103.55 per share, which were squared off on 11 February 2021 at an average rate of ₹ 96.74 per share, owing to which the petitioner claims to have become entitled to an amount of ₹ 2,21,325. However, instead, the petitioner’s account was debited by an 5 K.C. Aggarwal v National Stock Exchange of India Limited 6 Mr KC Aggarwal v National Stock Exchange of India Limited & Anr 7 “NSE” hereinafter 8 “SEBI” hereinafter Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 amount of ₹ 22,175. The petitioner is hence claiming an amount of ₹ 2,43,500/- on account of transactions in Stock Futures.

7. As this is a Section 11(6) petition, the specifics of the dispute need not detain us. The petitioner raised its grievance with ICICISL, to which ICICISL replied that the debit which took place was due to the Corporate Action Adjustment9 in compliance with letters/circulars issued by NSE as per authority derived from SEBI Master Circular dated 16 December 2016 read with circular dated 5 July 2018, which is reproduced in its entirety: To July 5, 2018 All Stock Exchanges Dear Sir/Madam, Sub: Review of Adjustment of corporate actions for Stock Options.

1. SEBI, vide Circular No. SMDRP/DC/CIR-8/01 dated June 21, 2001, prescribed a framework for adjustment of corporate actions for stock option contracts. Further, SEBI, vide Circular No. SMDRP/DC/CIR-15/02 dated December 18, 2002, set out principles for adjustment in derivative contracts at the time of corporate actions. SEBI has been receiving representations from various 2. stakeholders requesting the dividend adjustment to review framework for stock options. The suggestions were examined and placed before the Secondary Market Advisory Committee (SMAC)for deliberations. Based on the recommendations of SMAC, it has been decided to review the mechanism of dividend adjustment for stock options. The adjustment in strike price shall be carried out in the

3. following cases of declaration of dividends: Dividends declared at and above 5% of the market a. value of the underlying stock; or All cases of dividends, where the listed entity has b. sought exemption from the timeline prescribed under the Signature Not Verified 9 CAA hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 provisions of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. All conditions

4. in Circular No. SMDRP/DC/CIR-8/01 dated June21, 2001 and Circular No. SMDRP/DC/CIR-15/02dated December18, 2002 shall remain unchanged. stated

5. take necessary steps and put in place Stock Exchanges are advised to: 5.1. necessary systems for implementation of the above. 5.2. make necessary amendments to the relevant bye-laws, rules and regulations for the implementation of the above decision. 5.3. bring the provisions of this circular to the notice of the member brokers of the stock exchange and also to disseminate the same on the website.

6. This circular is being issued in exercise of powers conferred under Section 11 (1) of the Securities and Exchange Board of India Act, 1992 to protect the interests of investors in securities and to promote the development of, and to regulate the securities market. Yours faithfully, Amit Tandon Deputy General Manager [email protected]

8. Thereafter, the petitioner served a legal notice dated 27

February 2021 on ICICISL, and also filed a complaint dated 26 March 2021, on the web portal NICEPLUS of NSE.

9. No positive outcome being forthcoming from the legal notice, the petitioner filed CS 677/2021 against NSE and ICICISL before the learned Civil Judge for recovery of ₹ 2,43,500/- and sought a permanent injunction against the practice of CAA which, he claims, is illegal. In the said suit, ICICISL filed two applications, which is (i) an application under Section 8 of the 1996 Act, seeking reference of the Signature Not Verified disputes to arbitration and (ii) an application under Order VII Rule 11 Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 of Code of Civil Procedure, 1908 contending that the suit of the petitioner is barred by the Securities and Exchange Board of India Act, 1992 and also by the arbitration clause in the contract between the petitioner and ICICISL.

10. Vide order dated 17 November 2021, the learned Civil Judge, without passing any order in the application under Order VII Rule 11, allowed the application filed by ICICISL under Section 8 of the 1996 Act, on the ground that, when an arbitration agreement is present, the court ought to refer the dispute to arbitration. The relevant para of the order is reproduced thus: “The application filed before this court is duly accompanied with the account opening form which provides rights and obligations in Part-C and duly agreed upon by the plaintiff vide declaration in Part-A of the account opening form. It clearly stipulates the reference of dispute between the client and the stock broker to Arbitration. Further, Chapter-11 of the National Stock of India Byelaws provides for Arbitration between the trading members inter se and between trading members and constituents arising out of or in relation to dealings, contracts and transactions made subject to byelaws, rules and regulations of the Exchange. On perusal of the relief claimed by the plaintiff, it is seen that the plaintiff is seeking prayer 1, prayer 2 qua the defendant no.2 and on the said dispute the aforementioned reference to the Arbitration is mandatory. The contention of the plaintiff that the present dispute is a tripartite dispute and not a bipartite dispute cannot be accepted since the prayer 1 and 2 are between the plaintiff and the defendant no.2. Qua prayer 4 and 5 wherein the plaintiff is seeking the mandatory injunction qua defendant no.1 so as to quash, set aside, declare null and void and non-est in law the letters and circulars issued by the defendant no.1 and followed by the defendant no.2, this court is of the view that the averments in the plaint are silent as to these letters and circulars being non-est in law and same cannot be gone into by this Court in the absence of the pleadings only on the averments that they are illegal. Thus, the dispute of the plaintiff is mainly with the defendant no.2 qua prayer 1 and 2 and over the same the mandate of Section 8 of the Arbitration & Conciliation Act, 1996 is mandatory and where there is an Arbitration Agreement, the courts ought to refer the dispute to Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 Arbitration. Accordingly, the application under Section 8 read with Section 5 of the Arbitration & Conciliation Act, 1996 seeking reference of the matter to Arbitration is allowed and parties are referred to Arbitration. Application stands disposed off.” (Emphasis supplied)

11. Aggrieved thereby, the petitioner filed CRP 23/2022 before this Court, seeking setting aside of the order dated 17 November 2021 passed by the learned Civil Judge and starting of the trial afresh as per law.

12. The learned Single Judge, vide order dated 19 July 2023, held that, since the AOF contained an arbitration clause, refusing to refer the matter to arbitration would result in “irreparable harm” and would be a “failure of justice”. It was noticed that the AOF stipulated that any dispute between the “client and stock broker” should be referred to arbitration. Chapter 11 of the NSE byelaws provides for arbitration between trading members and constituents deriving from or relating to dealings, contracts and transactions made subject to the bye laws, rules and regulation of the SEBI. The relevant paras of the byelaws may be reproduced thus: “Reference to Arbitration (1) All claims, differences or disputes between the Trading Members inter se and between Trading Members and Constituents arising out of or in relation to dealings, contracts and transactions made subject to the Bye-Laws, Rules and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their validity, construction, interpretation, fulfilment or the rights, obligations and liabilities of the parties thereto and including any question of whether such dealings, transactions and contracts have been entered into shall be submitted to arbitration in accordance with the provisions of these Byelaws and Regulations. The Exchange shall be entitled to Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 facilitate arbitration for such disputes and parties as mentioned in the provisions of Byelaw 1, including the arbitration reference filed by Trading Member against the directions or order of the Grievance Redressal Committee GRC). by adopting such procedures as may be prescribed by it under this Chapter. (IA) All claims, differences or disputes between the Trading Members and authorised persons and between authorised persons and Clients of authorised persons arising out of or in relation to dealings, contracts and transactions made subject to the Byelaws, Rules and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their validity, construction, interpretation, fulfilment or the rights, obligations and liabilities of the parties thereto and including any question of whether such dealings, transactions and contracts have been entered into shall be submitted to arbitration in accordance with the provisions of these Byelaws and Regulations; Provided in disputes between authorised persons and clients of authorised persons, the Trading Member should be added as a necessary party. (IB) All claims, differences or disputes between the Trading Members inter se. Trading Members and Constituents, whether or not registered as Participants, Constituents inter se, whether or not registered as Participants, arising out of or in relation to dealings, contracts and transactions executed or reported on the Wholesale Debt Market Trading Segment of the Exchange and made subject to the Byelaws, Rules and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their validity, construction, interpretation, fulfillment or the rights, obligations and liabilities of the parties thereto and including any question of whether such dealings, transactions and contracts have been entered into shall be submitted to arbitration in accordance with the provisions of these Byelaws and Regulations. Provided this Byelaw shall not in any way affect the jurisdiction of the Exchange on the Trading Member, through whom such a Participant has dealt with or traded, in regard thereto and such Trading Member shall continue to remain responsible, accountable and liable to the Exchange in this behalf. (IC) All claims, differences or disputes arising between an Issuer and a Constituent in respect of such matters as may be specifically provided from time to time in the Listing Agreement as entered into by an Issuer with the Exchange shall be submitted to arbitration in accordance with the provisions of these Byelaws and Regulations. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 For the purpose of these Byelaws and Regulations, the term 'Issuer' shall have the same meaning as defined in these Byelaws and the term 'Constituent' shall mean the investor who has bought or sold, on the Exchange, the securities of the Issuer in respect of which the claim, differences or dispute has arisen. (1D) The Exchange shall be entitled to facilitate arbitration for such disputes and parties other than those mentioned in the provisions of Byelaws 1, (IA). (IB), and (IC) of this Chapter by adopting such procedures as may be prescribed by it under this Chapter.”

13. The Learned Single Judge upheld the decision of the trial court in the following terms: “55. On bare perusal of the reliefs sought by the petitioner before the learned Trial Court, it is ex facie apparent that the petitioner’s primary concern is against respondent no. 2. The reference to arbitration is mandatory for adjudication of the dispute in the present petition. The petitioner's contention that the current dispute is a tripartite dispute and not a bipartite dispute is not sustainable.

56. The petitioner has not been able to make out his case as to how his grievances could be resolved qua respondent no. 1. Section 8 the Act, 1996 requires that the dispute be referred to arbitration if an arbitration agreement exists. Accordingly, the application under Section 8 the Act, 1996 seeking arbitration has been allowed, and the parties are referred to arbitration.

57. The petitioner’s grievances are arising out of the AOF and the respondent no. 2 is a party to it. It is necessary to state that the reference to arbitration is legally justifiable in the light of the facts and statements. The learned Trial Court has acted in accordance with its jurisdiction under the law. CONCLUSION Therefore, this Court is of the view that the learned Trial 58. Court has not committed any error of law that can be the subject matter to be exercise by this Court exercising its revisional powers under Section 115 of the CPC. Section 8 of the Act, 1996 refers to the arbitration a clause procedure. This Court has serious objections to the extent of interference on the grounds of the arbitrability of the subject limits Court’s interference Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 matter, and the competence of the arbitral tribunal to deal with it. Section 8 of the Act, 1996 continues to serve as a hope for arbitration, forming the basis for mandating the parties to follow the model of arbitration where an arbitration agreement exists. Further, with regards to the maintainability of the revision 59. petition, the learned Trial Court has rightly determined that its jurisdiction to hear the suit does not exist due to the presence of an arbitration clause. After the aforementioned judgments, it is concluded that the observations made therein apply to the facts of the case in hand. relying upon Therefore, it is held that the learned Trial Court did not 60. have the jurisdiction to hear a dispute after an application for arbitration under Section 8 of the Act, 1996 was filed. As a result, the learned Trial Court has correctly allowed the said application under Section 8 of the Act, 1996. In such a case, refusing to refer the matter to arbitration would be a failure of justice, causing irreparable harm to the parties and violating the settled principles of law.

61. This Court is of the view that no case of revision as defined under Section 115 of CPC has been made out by the petitioner as no such cause exists wherein the learned Trial Court has failed to exercise its jurisdiction as per law. The learned Trial Court has neither acted illegally in the exercise of its jurisdiction nor has there been any material irregularity. Accordingly, the issue framed above has been decided.

62. In view of the above discussion of facts and law, this Court finds no infirmity in the impugned Order dated 17th November 2021 in Civil Suit bearing No. CSCJ/677/2021 passed by the learned Senior Civil Judge, Patiala House Court, New Delhi.” (Emphasis supplied)

14. This order has never been challenged and has therefore become final. Subsequently, on 17 September 2023, a formal notice under Section 21 of the 1996 Act was issued by the petitioner to NSE and ICICISL. ICICISL sent a reply by email dated 9 October 2023 in which it contended that the arbitration be held with Respondent 2 only Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 through the Online Dispute Resolution10 mechanism run by NSE. The letter dated 10 October 2023 by NSE solidifies the above stance and refers to a Circular dated 31 July 2023 which states that the petitioner is required to use the ODR mechanism of NSE for his disputes with ICICISL. It also stated that the arbitration agreement and the dispute is only with ICICISL and hence NSE cannot be made a party. The relevant portions of the e-mails are extracted as under:- Email dated 17 September 2023 “From: K.C. Aggarwal C-118 East of Kailash, New Delhi – 110065 To,

1. The National Stock Exchange of India Limited, Delhi Regional Office at Jeevan Vihar Building, 4th Floor, Road Area-3, Sansad marg, Janpath, Connaught Place, New Delhi-01 Email: [email protected] [email protected] Through Ms. Shivani Khandekar and Mr. Ishan Bisht Advocate Shivani Khandekar <[email protected]>, Ishan Bisht <[email protected]>

2. ICICI Securities Limited, 12th Floor, Narain Manzil 23, Barakhamba Road, New Delhi-01 Email: [email protected] Through Mr. Zaryab J Rizvi Advocate [email protected] [email protected] Subject: Appointment of Arbitrator cum Notice under Section 21 of Arbitration and Conciliation Act 1996 Mme/Sir, Signature Not Verified 10 “ODR” hereinafter Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 This has a reference my grievance as per Civil Suit No. 677/2021 wherein order dated 17.11.2021 has been passed by Ld. Court of Civil Judge at Patiala House Courts New Delhi referring the matter to arbitration and the same has been upheld by Order dated 19.07.2023 passed in Civil Revision Petition No. 23 of 2022 by hon’ble High Court of Delhi. Accordingly, it is hereby requested to kindly convey your consent for getting an Arbitrator appointed by Delhi International Arbitration Centre at Delhi High Court on the basis of mutual consent of all parties. Please note that:-

1. That I hereby give consent for appointment of any retired District Judge or Additional District Judge empanelled with DIAC. 2. This may be treated as a notice under section 21 of Arbitration and Conciliation Act 1996 and in case no consent or response is received within three weeks of emailing of this request, I would be at liberty to take recourse to legal remedies available presuming that you are not cooperating in appointment of arbitrator. KC Aggarwal” Email dated 9 October 2023 “Dear Mr. Aggarwal, We acknowledge the receipt of your trailing email dated 17/09/2023, seeking consent for getting an Arbitrator appointed by the Delhi International Arbitration Centre at Delhi High Court (DIAC). Vide your trailing email, it has been implied that as per orders of the Ld. Courts, the dispute, upon fresh mutual consent of the parties, can be referred for to the DIAC or any other similar centre for Arbitration. We have carefully reviewed the orders mentioned in your email i.e., the order dated 17/11/2021 passed by the Ld. Court of Civil Judge at Patiala House Courts, New Delhi in Civil Suit bearing No. 677/2021, and the order dated 19/07/2023 passed in Civil Revision Petition No. 23 of 2022 by the Hon’ble High Court of Delhi, as also the relevant pleadings of the cases. Based on our analysis of the court orders, pleadings of the parties and the relevant clauses of the agreement in question, it is clear that the Hon’ble courts have indeed allowed the application of ICICI Securities Limited (I-Sec) stating that the dispute between the parties should be referred to arbitration, as per the clause Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 stipulated in the agreement. It is made clear that no such question of fresh consent, as sought by you, was required by any of the orders and the Arbitration has to be conducted, as per the already agreed terms and Conditions. Furthermore, it is explicitly mentioned in the agreement that any arbitration proceedings are to be conducted as per the rules, Byelaws, Regulations, and circulars issued thereunder from time to time by SEBI and the National Stock Exchange of India Limited (NSE) and not the DIAC or any other similar Arbitration Centre. This specific clause in the agreement binds both parties to resolve disputes only through the agreed arbitration mechanism and no alteration in the same can be done. We appreciate your willingness to cooperate in the appointment of an arbitrator. However, considering the clear and unambiguous terms of the agreement, the appropriate forum for arbitration in this case is the Dispute Redressal mechanism, as per the agreement's provisions. In light of the above, we suggest that you should withdraw your request for arbitration under DIAC and proceed with the arbitration process as specified in the agreement, which designates NSE as the arbitral forum. This would align with the Hon’ble court's orders and the contractual obligations of all parties involved. We remain open to moving forward with the arbitration process in accordance with the agreement. Regards Pooja Kulkarni” Rival Contentions Petitioner’s Submissions

15. The petitioner contends that the respondents are not wanting the dispute to be solved but are only allowing a limited resolution by limiting the arbitration to the disputes with ICICISL. Additionally, the respondents are also forcing the petitioner to arbitrate under the aegis of NSE’s ODR portal by appointing an arbitrator from the panel of Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55 NSE despite the mandatory prohibition under Section 12(5)11 read with the 7th Schedule to the 1996 Act.

16. The petitioner relies on the judgment of the Supreme Court in Vidya Drolia v Durga Trading Corporation12 which says that a Section 11 Court is not totally divested of the powers to go into the question of arbitrability. He also submits that the bifurcation of the dispute into the main dispute and the other dispute, between NSE and ICICISL, is not permissible as per the law laid down in Vidya Drolia. The learned Single judge has also not gone into the merits as to what is the main and the subsidiary dispute.

17. The petitioner contends that the Circular issued by SEBI dated 31 July 2023 which mandates arbitration through the ODR mechanism of NSE, does not cover the disputes with a stock exchange, as stock exchanges are not listed in Schedule B to the circular.

18. It is further submitted that the contention of the NSE that it is not a party to AOF and that the agreement is bipartite is not acceptable. Since the dispute is tripartite, the bipartite AOF is not applicable as per over riding provisions of NSE Byelaws, specifically the exclusion clause.

1112. Grounds for challenge - (5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing. Signature Not Verified 12 (2021) 2 SCC 1 Digitally Signed By:AJIT KUMAR Signing Date:30.05.2025 15:31:39 ARB.P. 1264/2023 Signature Not Verified Digitally Signed By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:30.05.2025 15:30:55

19. He also submits that when NSE itself is a party, it cannot be facilitating the arbitration with itself. He submits that NSE is a party to the dispute and it is irrelevant whether NSE is a party to arbitration.

20. The petitioner further points out that the respondents have not explicitly objected to the appointment of the proposed arbitrator O.P. Gupta and neither have they proposed any alternative arbitrator. Respondents’ Submissions

21. The NSE submits that the presence of an arbitration agreement between the parties for adjudication of disputes is a necessary pre- requisite under Section 11 of the 1996 Act, which has not been met. The arbitration agreement is between the petitioner and ICICISL, to which the NSE is not a party. Therefore, the contention of the petitioner that it is a tripartite dispute necessarily has to fail.

22. The judgments of the Supreme Court in NTPC Limited v SPML Infra Limited13 and Duro Felguera S.A. v Gangavaram Port Limited14 are relied upon, in which the court held that the jurisdiction of the Court under Section 11(6) of the 1996 Act is limited to examining whether there is the existence of an arbitration agreement.

23. Further, as per Section 23L of the SCRA, a person aggrieved by NSE’s decisions has to file an appeal before the Securities Appellate Tribunal. Also, Section 22E of the SCRA bars civil courts from Signature Not Verified