- (1.) THIS is an application for setting aside the award passed by the Arbitration Sub-Committee of the Calcutta Stock Exchange Ltd.
(2.) PARTIES are agreed that the Arbitration Clause is bye-law 253 of the Bye-Laws and Regulations of the said Stock Exchange, which is set out below : "All claims (whether admitted or not), differences and disputes between a member and a non-member and or non-members (the terms non-member and 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, fulfilment or validity of transactions and contracts shall be referred to and decided by arbitration as provided in the Articles, Bye-laws and Regulations of the Exchange." Mr. Sibdas Banerjee appearing for the petitioner has submitted that under bye-law 249 of the self-same Regulations and Bye Laws, a case for damages for breach of contract must proceed on the basis that damages shall be calculated on a closing out by the party who claims damages and if there is no such closing out, damages must be calculated as on the fifteenth day after the date of breach. Bye-Law 249 is set out below : "249. If a member fails to complete the performance of a contract by delivery or payment in accordance with the provisions of these Bye-Laws and Regulations the constituent shall be giving notice in writing to the member close out such contract through any other member of the Exchange within fifteen days from the date of default and any loss or damage sustained as a result of such closingout shall be immediately payable by the defaulting member to the constitution. If closing-out be not effected as provided herein the damages between the parties shall be determined on the basis of the closing prices ruling on the fifteenth day following the date of default and the constituent and the member shall forfeit all further right of recourse against each other." Closing out is the subject-matter of Chapter XII of the said Bye-Laws and Rules 186 and 187(a) are set out therefrom. "186. A contract in securities made subject to the rules, Bye-Laws and regulations of the Exchange may be closed out by buying in or selling out against a member under the orders of the Arbitration Sub-Committee on his failure to comply with any of the provisions relating to delivery, payment and settlement of bargains or any failure to fulfil the terms and conditions subject to which the bargain has been made." "187 (a). A member shall be entitled to make an application to the Arbitration Sub-Committee for closing out against the party in default either on the day or failure or any day thereafter but not later than the fifteenth day following the date of such failure".
(3.) MR. Banerjee said on the above basis that Bye-Laws contemplate calculation of damages as on the fifteenth day from the date of breach. These Bye-Laws do not contemplate calculation of damages on some other day, say a date of hearing, before the arbitrarial body.;