DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, GURGAON-122001.
Consumer Complaint No: 765 of 2009. Date of Institution: 08.09.2009 Date of Decision: 16.11.2015
Rohit Kumar R/o Gurgaon One Apartment, Garden Heights-4, Flat 4-A, Sector-22, Gurgaon-122016.
……Complainant.
Versus
- Bajaj Capital Ltd. having its Branch at B 201, Supermart 1, Phase 4, Gurgaon.
- Optimix (A Division of ING Investment Management India Pvt. Ltd) 201-205, 2nd Floor, Narain Manzil, 23, Barakhamba Road, New Delhi-110001
Also at
601/602, “Windsor”, Off C.S.T. Road, Kalina, Santacruz (East), Mumbai.
..Opposite parties.
Complaint under Sections 12 & 14 of Consumer Protection Act,1986
BEFORE: SH.SUBHASH GOYAL, PRESIDENT.
SMT JYOTI SIWACH, MEMBER
SH.SURENDER SINGH BALYAN, MEMBER.
Present: Shri Ashutosh Sharma, Advocate for the complainant.
Shri Vishal Yadav, Adv for the OP-1
Sh. Raj Kumar, Adv for OP-2.
ORDER SUBHASH GOYAL, PRESIDENT.
The case of the complainant, in brief, is that complainant entered into a contract vide Discretionary Portfolio Management Service Agreement on 05.02.2007 for availing portfolio management services and the complainant deposited Rs. 5 Lacs with OP-2 on 08.02.2007 in order to get good dividend and to multiply the said amount and OP-2 was authorized to buy and sell shares, bonds etc on behalf of the complainant with the primary objective of monetary benefits but the complainant received the Cheque of Rs.2,26,248.50 dated 12.03.2009 against the investment of Rs. 5 Lacs. The complainant invested the money on 08.02.2007 when Bombay Stock Exchange was going upwards and the contract of the complainant was abruptly terminated without the knowledge and consent of the complainant which tantamount to violation of rules of SEBI. The complainant also approached SEBI but in vain. Hence, the present complaint. The present complaint is supported with an affidavit and the documents placed on file.
2 OP-1 in its written reply has alleged that OP-1 has been impleaded as opposite party unnecessarily without any cause of action and probably with a view to show territorial jurisdiction at Gurgaon and there was no deficiency in service on the part of the opposite party No.1 as it was a stranger to the agreement between the complainant and the opposite party no.2.
3 OP-2 in its written reply has alleged that agreement in question was signed, stamped and executed at Bombay as per the Bombay Stamps Act, 1958 and only the courts at Bombay have got the jurisdiction in terms of Clause 28 of the agreement. The investment was made for profit earnings as per the contents of the complaint itself and there was no mention that the same was meant for earning his livelihood by means of self employment and as such the transaction was of commercial in nature and as such the complainant was not a consumer as defined u/s 2(1) (d) of Consumer Protection Act, 1986.
4 We have heard the learned counsel for the parties and perused the record available on file carefully.
5 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the parties besides written arguments filed by the complainant as well as opposite party No.1, it emerges that the complainant has filed the present complaint against the OPs alleging deficiency in service on their part on the ground that complainant entered into a contract vide Discretionary Portfolio Management Service Agreement on 05.02.2007 for availing portfolio management services and the complainant deposited Rs. 5 Lacs with OP-2 on 08.02.2007 in order to get good dividend and to multiply the said amount and OP-2 was authorized to buy and sell shares, bonds etc on behalf of the complainant with the primary objective of monetary benefits but the complainant received the Cheque of Rs.2,26,248.50 dated 12.03.2009 against the investment of Rs. 5 Lacs. The complainant invested the money on 08.02.2007 when Bombay Stock Exchange was going upwards and the contract of the complainant was abruptly terminated without the knowledge and consent of the complainant which tantamounts to violation of rules of SEBI. The complainant also approached SEBI but in vain. With the aforesaid allegations the complainant filed the present complaint against the opposite parties. In support of his contention learned counsel for the complainant has placed reliance on Consumer & Human Rights Forum Vs Kotak Mahindra Finance Ltd 1(2004) CPJ 94 (NC), V.P.Sharma Versus Sikander Lal & Co. & Ors IV(2004) CPJ 298, State Bank of Indore Vs C.M.Mathew & Ano I(2001) CPJ 361, , Kiran Dei Vs Govt. of Raj & Ors II(2005) CPJ 402, Yudishter Kumar Malhotra Vs Arjit Chits Pvt. Ltd & Or IV(2004) CPJ 111 and Cholamandalam DBS Finance Ltd Vs Kishore Jain I(2008) CPJ 214 (NC).
6 However, as per the contention of OP-1 the complainant has impleadeed OP-1 as unnecessary party without no cause of action and probably it has been impleaded with a view to show territorial jurisdiction at Gurgaon. The opposite party no.1 is not a signatory to the agreement in question. There is no deficiency in service on the part of the opposite party No.1.
7 As per contention of OP-2 the agreement in question was signed, stamped and executed at Bombay as per the Bombay Stamps Act, 1958 and only the courts at Bombay have got the jurisdiction in terms of Clause 28 of the agreement. The investment was made for profit earnings as per the contents of the complaint itself and there was no mention that the same was meant for earning his livelihood by means of self employment and as such the transaction was of commercial in nature and as such the complainant was not a consumer as defined u/s 2(1) (d) of Consumer Protection Act, 1986.
8 To substantiate their argument learned counsel for the opposite party has relied upon A.S.Pai Vs Deluxe Roadlines III(1995) CPJ 44 (NC), Overseas Marine & Transport Co. Vs Gupta Carpet Palace & Others I(2009) CPJ 187 (NC), Jitender Kumar Chouhan Vs Branch Manager, ICICI Bank Ltd in Appeal No.229 of 2010 decided on 06.04.2010 by Hon’ble State Consumer Disputes Redressal Commission, Pandri, Raipur, Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Co. Ltd in RP No.658 of 2012 decided on 23.04.2013 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and India Infoline Ltd Vs Vaman Nagesh in First Appeal No.12/2014 decided by State Commission, Panaji, Goa on 07.04.2014 wherein the reliance of following cases have been made :-
In the case of Shashikant S. Timmapur vs. Karvy Stock Broking Ltd., (RP No. 2752/11, 2013(2) CCC 806) by order dated 24/7/13, the National Commission has referred to several decisions and has come to the conclusion that although it was mentioned in the complaints that the complainant had availed the services of Respondents exclusively for the purpose of earning his livelihood by means of self-employment, but by looking to the volume of the transactions, it cannot be inferred that complainant availed services exclusively for the purpose of earning his livelihood by means of self-employment, but had availed the same for commercial purpose for sale and purchase of shares and in such circumstances, the complainant did not fall within the purview of consumer under Section 2(d)(ii) of the C.P. Act. Reference was made to Ramendra Nath Basu vs. Sanjeev Kapoor & anr., (2009) CPJ 316, wherein the West Bengal State Commission held that share trading transactions between the parties do not come under purview of C.P. Act, 1986. Reference was also made to Anand Prakash vs. A.M. Johri & ors., III (2000) CPJ 291, wherein the Delhi State Commission has held that sale purchase of shares are commercial transactions and complainant does not fall within the purview consumer. Reference was also made to A. Asaithambi vs. Company Secretary Satyam Computer Services Ltd., & ors., (RP No. 1179/12) wherein the National Commission has held that the sale and purchase of shares are commercial transactions and do not fall within the purview of consumer. Reference was also made to Dr. V.K. Agarwal vs. M/s. Infosys Technologies Ltd., & ors. (order dated 24/7/12 in RP No. 3345 of 2012) wherein the same view was taken.
In Shri. Chandra S. Mishra vs. Indiabulls Securities Ltd., (RP No. 2821/12) by order dated 10/4/13 the National Commission has referred to Unit Trust of India vs. Sabitri Devi Agarwal [II (2000) CPJ] and held that the Consumer Protection Act is not for entertaining or compensating speculative transactions or losses. Reference was also made to Gautam Das vs. Sun Pharmaceuticals Industries Ltd., (2010 (4) CPR 1) wherein it was held that the complainant, a shareholder, cannot be the consumer qua Indiabulls Securities Ltd., OP No. 1 within the meaning of Section 2(1)(d)(ii) of the C.P. Act, 1986 and therefore the complaint was not legally maintainable.
6 Therefore, after going through the facts and circumstances of the case it is evident that the complainant had invested Rs. 5 Lacs with a view to earn profits through share trading market, Bombay which was regulated by SEBI. Therefore, the nature of transaction is of commercial nature. However, the definition of consumer is reproduced as under :-
“(d) “Consumer” means any person who-
(i) buys any goods 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 use 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;
(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 purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]
There is nothing in the complaint or the affidavit that complainant availed the services of the opposite parties exclusively for the purpose of earning his livelihood by means of self-employment.
Thus, when the services were availed for commercial purpose for carrying commercial activities and were not exclusively for the purpose of earning livelihood by means of self-employment, then such person is not a consumer as defined u/s 2(1)(d)(ii) of Consumer Protection Act, 1986. However, the authorities relied upon by the complainant i.e. Consumer & Human Rights Forum Vs Kotak Mahindra Finance Ltd 1), V.P.Sharma Versus Sikander Lal & Co. & Ors, State Bank of Indore Vs C.M.Mathew & Ano, Kiran Dei Vs Govt. of Raj & Ors and Cholamandalam DBS Finance Ltd Vs Kishore Jain (Supra) are not applicable to the facts of the present case because in the above said authorities the disputes pertain to the period prior to the amendment in Consumer Protection Act, 1986 which came in force 15.03.2003. Similarly, in the authority Yudister Kumar Malhotra (supra) the dispute also pertains to the period prior to the amendment. Moreover, the dispute involved before Delhi State Commission was as to whether the provisions of Chit Fund Act which has ousted the jurisdiction of Civil Courts are also applicable to the Consumer Forum or not.
Moreover, this Forum has also got no territorial jurisdiction to adjudicate upon the matter as the complainant failed to show that he has any cause of action against OP-1 situated at Gurgaon though the office of OP-2 is situated outside the jurisdiction of this Forum. The complainant also sent the legal notice only to the OP-2. Thus, this Forum has got no territorial jurisdiction to adjudicate upon the matter.
7 Keeping in view the facts and circumstances discussed above and the law relied upon by the learned counsel for the opposite party complainant was not the consumer of the opposite party as defined u/s 2(1)(d)(ii) of Consumer Protection Act, 1986 and this Forum has got no territorial jurisdiction to adjudicate upon the matter, thus, the present complaint is not maintainable before this Forum and is dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
16.11.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
