Haryana

Karnal

CC/279/2021

Ish Kumar - Complainant(s)

Versus

Angel Broking Limited - Opp.Party(s)

Kanav Deep Singh

05 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                      Complaint No. 279 of 2021

                                                      Date of instt.16.06.2021

                                                      Date of Decision:05.02.2024

 

Ish Kumar aged about 37 years son of late Shri Rajinder Kumar, resident of house no.96, sector-8, urban Estate, Karnal, District Karnal. Aadhar card no.554160563506.

 

                                               …….Complainant.

                                              Versus

 

1. Angel Broking Ltd. Registered office at G-1, Akruti Trade Center, Road no.7,, MIDC Maroi, Andheri (E) Mumbai-400093. Through its authorized signatory.
2.  Patel Integrated Logistics Ltd. 48, Gazdar Bandh, North Avenue Road, Santacruz (West ) Mumbai-400054 through its M.D.
3. Kanu son of Shri Ashok Kumar,

 

                                                                        …..Opposite Parties.

               

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

              Dr. Suman Singh……Member

 

Argued by:  Shri Kanwar Preet Singh, counsel for the complainant.

                    Shri Munish Sikri, counsel for the OP no.1.

                    Ms. Khushboo Arora, counsel for the OP no.2.

                    OP no.3 exparte, vide order dated 06.07.2023.

 

                    (Jaswant Singh, President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that Op no.1 is having a firm under the name and style of Angel Broking Ltd. doing the business  of sale/purchase of shares and the OP no.3 is doing the work as an agent of OP no.1 and the OP no.3 advised to the complainant to open an account with OP no.1 and as per the instruction of OP no.3, complainant had opened an account vide client code (UCC) no.KANGI007 (Chandi/Kaug)/client I.D. no.1203320041647761. The OPs no.1 and 3 advised to the complainant to purchase the shares of OP no.2 as the said company is growing very sell and there are so any chances for getting good income and on believing the version of the OPs o.1 and 3,  the complainant got invested Rs.1,14,896/- for purchasing the shares of OP no.2 through OP no.1 on 05.03.2021. The complainant had purchased 10000 shares of Patel Integrated Logistic Ltd.  (OP no.2) and value of per share is Rs.11.47/- as the OP no.1 also charged some money from the complainant as brokerage and said amount has been debited from the bank account of the complainant. Thereafter, complainant was under the impression that he will get handsome earning as the value of advised share/purchased shares is going to be increasing day by day. Complainant checked the status of his account/about  his shares and came to know that no share is found in the account of complainant. The complainant immediately contacted to the OP no.1 and asked about the status of his shares, then official of the OP no.1 told that there is no share in the account of complainant. The complainant was in shocked and further asked that an amount of Rs,.1,14,869/- debited from his d-mate account and if the process of purchase the share had failed then the debited amount in the account of the complainant should be returned back, but no amount has been returned in the D-mate account of the complainant. The official of the OP no.1 not gave any positive reply to the complainant. Thereafter, complainant made many complaints to the OPs through e-mail and other multi-media process but OPs neither given any positive reply to the complainant nor refunded the money, which was debited from the bank account of complainant. Then complainant served a legal notice dated 23.04.2021 to the OPs but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and jurisdiction. On merits, it is pleaded that complainant has executed client Registration form and various other documents (known as KYC) on around 09.01.2021 with the OP. At the time of execution of KYC, complainant opted to receive Trade related Documents and Trade Confirmation SMSs on his email id and mobile number. After execution of KYC, complainant allotted a Unique client code KAUGI007 for carrying out trade in his trading account. In NSE cash segment, complainant executed his first trade on 11.01.2021 till 07.01.2021. In MCX segment, complainant executed his first on 29.01.2021 and last trade on 26.03.2021 respectively. It is further pleaded that the complainant had been continuously trading for more than 12 months in very high volume and had been making payment and also receiving profits at regular intervals. Hence, it is clear that the relation between the complainant and the OP is purely commercial and for profit making. Thus, the present complaint is not maintainable for the reasons that the activities i.e. trading of shares on a large scale in which the complainant has been involved, are purely commercial activities as has been decided by the National Consumer Disputes Redressal Commission in various of its judgments. Hence, present complaint is not maintainable and liable to be dismissed. It is further pleaded that complainant is a government servant, getting salary for his survival and therefore, is no dependent for his livelihood on share trading. Even, complainant has himself not claimed such in his complaint share trading was being done for his livelihood. It is vehemently denied that on the advice of OP no.1, complainant had purchased shares of OP no.2. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; jurisdiction and mis-joinder and non-joinder of necessary party. On merits, it is pleaded that complainant does not fall within the ambit of consumer as prescribed in Consumer Protection Act as the complainant had purchased the shares for the purpose of making profit i.e for commercial purpose. It is further pleaded that complainant has purchased right entitlement i.e. right to acquire the shares from the open market not for the company directly. OP no.2 does not even know or have any relation or role in the management of operations of OP no.1 and the complainant also not an existing shareholder of the OP. Thus, OP is not responsible to pay anything to the complainant.

4.             OP no.3 in his written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi; mis-joinder and non-joinder of necessary party and concealment of true and material facts. On merits, it is pleaded that OP no.3 was join the company of OP no.1 on 01.12.2020 and the work provided to the OP no.3 only to open the account and OP no.1 give Commission to OP no.3. The complainant has opened the account on 09.01.2021 through OP no.3. The OP no.3 has no concern with the other works of company and transaction between the complainant and company. The OP no.3 has given resign from his job on 15.04.2021.

5.             Parties then led their respective evidence.

6.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of bank statement Ex.C1, copy of portfolio Ex.C2, copy of transit and shares Ex.C3, copy of deduction of price and shares Ex.C4, copy of portfolio Ex.C5, copy of emails Ex.C6 and Ex.C7, copy of legal notice Ex.C8, receipts and trading and shares Ex.C10 and Ex.C11 and closed the evidence on 12.10.2022 by suffering separate statement.

7.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Rahul Sexena, Assistant Manager Ex.RW1/A and documents Ex.R1 to Ex.R7 and closed the evidence on 08.12.2022 by suffering separate statement.

8.             Learned counsel for the OP no.2 has tendered into evidence affidavit of Santosh Kumar Singh working as Assistance Man ager Legal Ex.OP2/A and closed the evidence on 06.07.2023 by suffering separate statement.

9.             OP no.3 has failed to conclude its evidence after availing several opportunities including last opportunity. On 06.07.2023 none has put into appearance on behalf of OP and opted to be proceeded against exparte vide order of this Commission.

10.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

11.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on the advice of OPs no.1 and 3, complainant opened an account and also got invested Rs.1,14,896/- for purchasing the shares of OP no.2 through OP no.1 on 05.03.2021. The complainant had purchased 10000 shares of Patel Integrated Logistic Ltd.  (OP no.2) and value of per share was Rs.11.47/-. After some time complainant checked the status of his account of  his shares and came to know that no share is found in the account of complainant. Complainant made many complaints to the OPs through e-mail and other multi-media process but OPs neither given any positive reply to the complainant nor refunded the money, which was debited from the bank account of complainant and prayed for allowing the complaint.

12.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that the complainant had been continuously trading for more than 12 months in very high volume and had been making payment and also receiving profits at regular intervals. The relation between the complainant and the OP is purely commercial and for profit making. Thus, the present complaint is not maintainable. The complainant is a government servant, getting salary for his survival and therefore, is no dependent for his livelihood on share trading. Complainant has himself not claimed in his complaint that the share trading was being done for his livelihood and prayed for dismissal of the complaint.

13.           Learned counsel for the OP no.2, arguing the same lines of and prayed for dismissal of the complaint,

14.           We have duly considered the rival contentions of the parties.

15.           Before going through the merits of the case, firstly we decide whether the complainant falls under the ambit of consumer as defined under section 2(7) of the Consumer Protection Act, 2019 or not?

16.           The definition of consumer is defined in Section 2(7) of the Consumer Protection Act, 2019, reproduced as under:-

(7) “Consumer” means any person who-

(i)     buys any goods for a consideration which has been paid or promise or partly paid and partly promises, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.” or

(ii)    hires or avails of  any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who(hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.

Explanation- For the purposes of this clause-

(a)    the expression “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.”

(b)    the expressions “buys any goods” and “hires or avails any services” include offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

17.           The onus to prove that the complainant has purchased the shares for earning his livelihood by means of self employment not for earning the profit  was relied upon the complainant but complainant has miserably failed to prove the same by leading any cogent and convincing evidence. Neither in the whole complaint nor in evidence tendered by the complainant, has alleged that he has no other source of income except the earning from the alleged shares. Rather, OPs have specifically mentioned in the written version that complainant has been continuously trading for more than 12 months in very high value and had been making payment and also receiving profit at regular intervals.  This fact has not been rebutted by the complainant.  Hence, it has been proved on record that complainant has purchased the shares for commercial purpose not for earning his livelihood by means of self employment and thus in view of section 2(7)(a) of the Consumer Protection Act, 2019, this Commission has no jurisdiction to entertain and try the present complaint.

18.           Thus, in view of the above discussion, the present complaint is not maintainable and deserves to be dismissed and the same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 05.02.2024.  

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

                (Vineet Kaushik)        (Dr. Suman Singh)

                     Member                        Member