Harish Kumar C Vakaria v. M/s India Infoline Ltd

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Harish Kumar C Vakaria v. M/s India Infoline Ltd

Harish Kumar C Vakaria v. M/s India Infoline Ltd
In the Cyber Appellate Tribunal, New Delhi
Appeal No. 1/2009
Before Justice Rajesh Tandon, Chairperson
Decided on May 26, 2010

Relevancy of the case: Applicability of Section 43 of the IT Act, 2000

Statutes & Provisions Involved

  • The Information Technology Act, 2000 (Section 43, 57)
  • The Arbitration and Conciliation Act, 1996 (Section 8)

Relevant Facts of the Case

  • The Appellant had opened an Online Demat Account with India Infoline Ltd. On January 8, 2008, access to the Online Trader Terminal Software was also given to the Petitioner.
  • The Petitioner deposited a cheque of Rs. 94,500/- for the IPO of Rural Electrification Corporation. Karvy.com displayed that 121 shares were allotted to the petitioner amounting to Rs. 12,705/-. Rest of the amount was credited to the Bank.
  • The above said shares were not credited to the Demat Account. Further, a message was sent that the said Demat Account is closed.
  • The Petitioner alleges that the account was closed for 37 days and then again reopened with the correct status of HUF. Counsel for the appellant has submitted that due to an unauthorised closing/suspension of the Demat account, he has suffered the losses to the extent of Rs. 2,555/- (Online Demat A/c opening charges and Online Trader Terminal Software charges, Rs. 3013/- (Difference amount of highest market price of 121 shares of REC Ltd. and Purchase Price (121 shares 130-105), Rs. 1655/- (Loss on Rs. 94,500/- as the amount remained blocked for a period of one month at the rate of 21%, private lending rate.)
  • The unauthorised access/suspension comes under Section 43 of The IT Act, 2000.

Prominent Arguments by the Advocates

Counsel for the Respondent claimed that the decision of the Adjudicating Officer (Gujrat) should not be considered as the appellant has already filed for proceedings under Section 8 of the Arbitration and Conciliation Act, 1996.

Opinion of the Bench

  • The Judge carefully examined the validity of the Appeal to the Cyber Appellate Tribunal under S.57 of the IT Act, 2000.
  • The Judge also said that before examining the validity of S.43 of The IT Act, 2000, it is important to understand the remedies both the parties have agreed to through the e-contract that they have signed. Hence, one of the remedies here is Arbitration and hence, it must be looked upon.

Final Decision

  • The said matter is sent to the Adjudicating Officer to be heard afresh.
  • The AO must identify the new parties to be added to the respondents like the CDL, NSE, BSE. It should also see whether S.8 of the Arbitration and Conciliation Act is valid in this matter.

 Personal Opinion

  • Though the allegations made by the appellant were very strong, but in cases like this, the procurement of the evidence is very difficult at an applicant’s end as it is stored in the servers of the respondent(s).

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