O R D E R <br /> <br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The grievances of the complainant against OP in brief is that OP is a stock market provider ( broker and agent ) engaged for providing shares etc. That he opened an account with the Op during October 2006 and assigned to several unfilled formats as directed by the Op. That the OP has rendered services regarding stock investment to him. That the OP shall not transact with any stock without his consent or express communication that one Ribbi Abraham and Benny Abraham were communicating him in respect of share transaction he had with the Op. It was the responsibility of the OP that he shall not suffer any loss in the share transaction and was required to furnish confirmation memo with respect to entire transaction. That the Op keeping him in dark invested his money in purchase of shares of Bharati Air Tel and the complainant has further made certain allegations against Op in selling those shares resulting in loss which is not an issue for adjudication before us. The complainant with those allegation of deficiency of the OP has come up with the compliant in connection with a specific transaction dated 02-08-08 wherein he has stated before his traveling abroad had invested a sum of Rs.1,17,000/- on the persuasion of representatives of OP. As he was required to go abroad for three months on his official work, he had informed the OP not to invest in shares until he return from US. OP was required to render service having taken charges for his service but did not provide required information. Then he after contacting one Riyaz he got details of his account and to his shock he found negative balance of Rs.2,546/- in his account and stated that OP due to his mis-management and without his consent has transacted in shares and caused loss to him. Therefore calling the acts of Op as deficient has prayed for a direction to Op to pay him Rs.1,17,000/- towards loss he has suffered, to award compensation of Rs.1,00,000/- for inconvenience and mental agony he underwent with cost. <br /> <br /> OP appeared through his advocate and filed version denying all the allegations of the complainant regarding not sending information regarding transaction in the shares of the complainant without his consent. Op has also denied the allegation of violation of rules and in not communicating the complainant about the transaction and in not sending confirmation report. The OP has further contended that he was transacting in the shares of the complainant and was sending post transacting e-mail on doing each transaction with his consent only. The OP not denying receipt of Rs.1,17,000/- through the cheque dtd: 02-08-2008 from the complainant has contended that he has invested that amount for purchase of shares with consent of the complainant. It is further stated that whatever transaction that has been done are stated in the ledger and as per the contents of the ledger are binding on them. He has further stated that he had never executed any transaction without the consent of the complainant and reiterating that transactions were done with the consent of the complainant which has resulted in minus balance of Rs.2546/- in the account of the complainant and that the debit balance of Rs.6113/- is found from the account of the complainant. The complainant is liable to pay them Rs.6113/- and thus denying any deficiency in his service has prayed for dismissal of the complaint. <br /> <br /> In the course of enquiry into the complaint, the complainant and officer of the OP have filed their affidavit evidence re-producing what they have stated in their respective compliant and version. Complainant along with the compliant has produced certain copies of e-mails, copies of contract note and a copy of a legal notice he got issued to the OP. OP has not produced any document. We have heard the counsel for complainant and counsel for OP is taken as heard as he was absent, and perused the records. <br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the OP has caused deficiency in is service in investing his money in purchase of shares without his consent and has caused loss? <br /> <br /> 2. To what relief the complainant is entitled to ?<br /> <br /> Our findings are as under:-<br /> <br /> Point No: 1 in the affirmative.<br /> Point No: 2:see the final order.<br /> <br /> REASONS:: ANSWER POINT No:1:: Prior to taking up this matter for disposal on merits the counsel for the complainant sought for referring of this complaint to SEBI for their opinion on merits. Accordingly it was referred to SEBI for their opinion who in turn through their letter dated 10-03-2010 replied that they cannot decide the dispute of this type as such matters can be decided by the Civil courts. Thereafter this forum has taken up this complaint for adjudication. <br /> <br /> The OP as evident from the rival contentions of the parties has not denied investment of Rs.1,17,000/- by this complainant with him, through a post dated cheque during August 2008. The contention of the complainant that he had paid the amount to the Op and he was required to travel abroad for three months as such had requested the Op not to invest that money in shares until return from US, but on return from US after his official trip, he was shocked to see negative balance of Rs.2546/- in his account has been negatived by the Op not only through his version but also in his affidavit evidence. The Op has specifically denied having transacted in the complainants money without his consent but categorically stated that he has never transacted without consent and stated purchased shares certificates with the consent of the complainant. Bearing in mind this serious allegation, and denial of the parties we shall look into the copies of documents and statements that the parties are relying upon and produced E-mail copies dated 19-12-2006, 15-09-07 and 27-07-07 are all pertaining to some other shares transactions of the complainant which are not in issue before us for decisions. We have before us a copies of contract note dated 27-07-2007, 30-08-07 and a copy of e-mail that the complainant sent to Op on 28-09-2007. In this letter the complainant has requested the Op to inform him the current holdings and balance in his trading account by further inviting the attention of the OP about two transaction done by the Op and stated that he had not authorized the Op to invest Rs.1,17,000/- in purchase of any shares and to reply him by giving details of number of transactions the Op did on his behalf. But the OP it is found exhibited silence and not given the details as sought for by the complainant. The Op thereafter on 11-01-2008 shown to had forwarded various reports pertaining to transactions of the complainant done on investment of Rs.1,17,000/-. But the complainant thereafter got issued a legal notice on 28-07-2008 re-asserting that he had never authorized OP to do any transaction on his investment of Rs.1,17,000/- and called upon the Op to refund his investment. But the OP has not cared to reply it. The Op though in his version and also in affidavit evidence denied the allegation of the complainant in having done share transaction without the consent of the complainant but has failed to prove during enquiry of this complaint that he did invest the complainants money on shares and transacted on them, thereafter with the consent and approval of the complainant. The OP has also not proved before us in having had sent confirmation statement of the transaction to the complainant at any time after he used the complainants money in purchase and sale of shares. The Op absolutely has not placed before us materials or evidence to prove that he had invested complainant’s money in purchase and sale of shares with his consent. The counsel for the complainant though has produced an order of SEBI touching the shares transactions and decisions of AP State Consumer Commission reported in I (2004) CPJ page 24 but are not rendered on similar set of facts but can be relied upon to hold that the complaint before the forum is maintainable and any deficiency in the service of agent or broker is amenable to the authorities constituted under act. <br /> <br /> On careful considerations of oral and documentary evidences produced before, us we find that the complainant had invested Rs.1,17,000/- in his shares account and that OP has utilized in dealing in shares despite complainants request not to use that money until he returns from US. OP having dealt with against the norms and without the consent of investor has incurred loss besides a negative balance of Rs.2546/- which in our view is deficiency in the service of Op as such is liable to refund the same to the complainant. With the result we answer Point NO:1 in the affirmative and pass the following order. <br /> <br /> O R D E R<br /> <br /> <br /> Complaint is allowed. OP is directed to refund Rs.1,17,000/- to the complainant within 60 days from the date of this order with interest @ 15% per annum from 02-08-2008 till it is paid. <br /> <br /> OP shall also pay cost of Rs.2000/- to the complainant. <br />