BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.454 of 2014
Date of Instt. 30.12.2014
Date of Decision :07.09.2015
Pran Mittal son of Des Raj R/o Village Kalayanpur, Tehsil & District Jalandhar.
..........Complainant Versus
1. Bank of India Mutual Fund, Bank of India Premises, Cusrow Bang, Colaba Causeway, Mumbai, also at Stock Exchange Tower, 24th Floor, Dalal Street, Mumbai, through its Manager/Chairman.
2. Bank of India, being Principal Trustee of BOI Mutual Fund, Star House, C-5, G Block, Bandara Kurla Complex, Bandra (East) Mumbai-400051 through its Manager/Chairman.
3. BOI Axa Investment Management Private Ltd, 51 East Wing, Kalpataru Synergy, Vakola, Santacruz(E), Mumbai, through its Manager/Chairman.
4. Bank of India, Gyan Cottage, Grand Trunk Road, Jalandhar through its Manager/Chairman.
5. Bigshare Service Pvt Ltd, E-2, Ansa Industrial Estate, Sakivihar Road, Saki Naka, Andheri(East) Mumbai-400072, through its Manager/Chairman.
.........Opposite parties.
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Amritpal Singh Adv., counsel for complainant.
Sh.Sidharth Kapoor Adv., counsel for OPs No.1 to 4.
Opposite party No.5 exparte.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant made an investment in BOI Mutual Fund's Festival Boinanza Growth Scheme-1991(Plan-B) vide Folio No.FBB 501257 with opposite party No.1. The amount of Rs.10,000/- was invested in the said scheme by the complainant. The opposite party accordingly allotted 1000 units @ Rs.10NAV, and also issued the certificate regarding the said investment. Thus the complainant by virtue of his investment with the opposite parties for financial services is consumer. Earlier, the opposite party No.1 used to send the updates regarding said investment scheme vide its newsletter to the complainant but later on it stop sending the same. The investment of the complainant is still lying with the opposite party No.1. The complainant number of time contacted the officials of the opposite parties No.1 and 4 regarding the status of his investment but none of the officials of the opposite parties informed about it. The complainant telephonically contacted the officials of the opposite party No.2 and asked about the status of his investment in the above mentioned scheme, but they informed that said investment scheme is now neither being managed by the opposite party No.3 or 5 as its registrar. As the earlier mutual fund schemes of opposite party No.1 is now being managed by the opposite party No.3. So, the complainant has also number of time contacted and asked about his investment but till date no reply or refund of investment has been given to him. On such like averments, the complainant has prayed for directing the opposite parties to refund the investment of Rs.10,000/- alongwith accrued benefits and interest. He has also claimed compensation and litigation expenses.
2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite parties No.1 to 4 raised preliminary objections regarding locus-standi, maintainability, abuse of process of law, limitation, concealment and suppression of material facts, mis-joinder and non-joinder of necessary parties, complainant being not consumer etc. On merits they pleaded that the complainant made investment of BOI Mutual Fund's Festival Boinanza Growth Scheme 1991. Complainant has intentionally concealed the facts that festival Boinanza Growth Scheme 1991 became due for redemption on 11.12.1997 and units were redeemed by the complainant and redemption warrants were issued to him. Hence at present there is no customer or service provider relationship between complainant and opposite parties. Therefore, present complaint is sheer abuse of process of law against opposite parties and opposite parties reserves their rights to take necessary legal action against the complainant for illegally dragging them in the false and frivolous litigation. Whenever the complainant had contacted the opposite parties, it was informed to him that the redemption warrant was already issued to him and if he has any case that he has not received or encashed the same, he was asked to submit the proof in this regard including the original bond/unit certificate of BOI Mutual Fund, duly discharged, for which he has not replied. As per records the redemption warrant No.9822657 dated 20.1.1998 for Rs.10,000/- was issued to investor Pran Mittal, in lieu of redemption of amount of his investment. The details of paid warrant related to the complainant is as given below:-
Folio No.FBB501257 Number of Units 1000
Warrant No.9822657 Amount Rs.10,000/-
Warrant Date 20.1.1998
Payment details:-
Bank A/C No.574 Batch No.165
Sr.No.005 Payment date 3.3.1998.
3. In its separate written reply sent through post, opposite party No.5 pleaded that Festival Boinaza Growth Scheme 1991 became due for the redemption on 11.12.1997. The units were redeemed by the complainant and redemption warrant was issued to him. Hence, the question of sending updates thereafter does not arise. Redemption warrants are issued after surrender of duly discharged Mutual Fund Certificates. As per records, the redemption warrant was issued to investor Pran Mittal. Since he has already redeemed his units no cause of action has arisen. He is making the complaint after 16 years from the date of redemption and receipt of entire amount invested. Complaint is also barred by limitation.
4. After sending written reply through post, none appeared on behalf of opposite party No.5 and as such it was proceeded against exparte.
5. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and closed evidence.
6. On the other hand, learned counsel for the opposite parties No.1 to 4 has tendered affidavit Ex.OP/A alongwith copies of documents Ex.OP-1 to Ex.OP-3 and evidence of opposite parties No.1 to 4 was closed by order.
7. We have carefully gone through the record and also heard the learned counsels for the parties.
8. It is not disputed that the complainant invested Rs.10,000/- in BOI Mutual Fund's Festival Boinanza Growth Scheme-1991 with opposite party No.1 and accordingly he was alloted 1000 units @ Rs.10 NAV. The complainant was also issued certificate regarding his investment. According to the opposite parties, the above said scheme became due for redemption on 11.12.1997 and units were redeemed by the complainant and redemption warrants were issued to him. According to opposite parties, the complainant has received the payment on 3.3.1998. Without going into merits of the controversy, we are of the view that the complainant can not be termed as consumer under the provisions of Consumer Protection Act as he made investment in mutual fund. The investment in mutual fund is further invested in shares and NAV i.e Net Annual Value of the units allotted to the investor depends upon the fluctuations in the share market. This fact is also evident from the Boinanza Bulletin Ex.C2 produced by the complainant himself wherein it is mentioned as under:-
"Net Asset Values are calculated as per SEBI guidelines taking into account, inter-alia, the current market value of the investments. The NAV/repurchase price and the redemption value of the units, as well as income from them, can go up or down with the fluctuations in the market value of its underlying investments. Repurchase price is linked to NAV and this price also gets affected during the falling market. It is advisable not to get panicky.
Mutual Funds collect funds from a number of investors and invest them in equity/debentures of various companies, in accordance with the type of the mutual fund scheme. The proportion of equity and debt instruments held is defined in our initial offer documents and as per investment objectives of the scheme. These objectives are strictly adhered to. In normal market conditions, prudent trading in good scrips enables funds to generate profits and surplus, which are distributed among the investors.
You are aware that on a macro-level, the Indian economy is undergoing a difficult period. Naturally, in a competitive environment, this has a strong impact on the capital market.
In a bearish market, however, it is in the interest of the investors to preserve the assets/ investments in the form of blue-chips and fundamentally strong scrips. The fund is vigilant and careful in selling only those shares which are likely to depreciate further, or not likely to appreciate, and tries to retain the shares which are likely to appreciate after the bearish trend is over. However, to meet liquidity requirements, the fund is sometime forced to sell good scrips also".
9. To the same effect is Boinanza Bulletin Ex.C3. So, from Ex.C2 and Ex.C3 it is also evident that the investment in mutual fund is further invested in equity market i.e share market. In Paramjit Kaur Vs. Aviva Life Insurance Company India Limited, Consumer Complaint No.96 of 2011, decided on 4.7.2014 by our own Hon'ble State Commission, it has been held as under:-
"At the outset, it was submitted by the learned counsel for the opposite party that the policy in question was admittedly a Unit Linked Policy and, as such, the claim made thereunder is not cognizable by the Foras under the Act. In support of his submission he cited III(2013) CPJ 203 (NC) (Ram Lal Aggaarwalla Vs. Bajaj Allianz Life Insurance Co.Ltd & Anr). Learned counsel for the complainant could not refute this submission so raised by the learned counsel for the opposite party.
In above said judgment the dispute was regarding Unit Linked Insurance Policy and the claim made under that policy was disallowed by the District Forum by making the following observations:-
"The investment made by the petitioner/complainant was to gain profit. Hence it was invested for commercial purposes and, therefore, the petitioner/complainant is not a consumer under the opposite parties. The State Commission Odisha in First Appeal No.162 of 2010 in the case of Smt.Abanti Kumari Sahoo Vs. Bajaj Allianz Life Insurance Company Ltd., have held that the money of the petitioner/complainant invested in the share market is no doubt a speculative gain and the speculative investment matter does not come under the Consumer Protection Act and accordingly, the State Commission dismissed the appeal".
On the basis of the findings so recorded by the District Forum it came to the conclusion that the complaint was not maintainable under the Act and was dismissed. Against the order of the District Forum, the petitioner filed an appeal before the State Commission, which did not find any reason to differ with the finding recorded by the District Forum and accordingly rejected the appeal memo at the admission stage. Dissatisfied with that order the petitioner filed a revision before the Hon'ble National Commission. It was held that there was no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting inference and the revision was dismissed. It becomes very much clear from this judgment that complaint in respect of the claim under Unit Linked Insurance Policy is not maintainable under the Act; the money having been invested in a speculative business. It appears that on account of that reason itself the learned counsel for the complainant has not refuted the submissions made by learned counsel for the opposite party".
10. To the same effect is the law laid down by our Hon'ble State Commission in Metlife India Insurance Co. Vs Gurjit Singh, First Appeal No.407 of 2011, decided on 22.9.2014.
11. The ratio of above cited authorities is applicable on the facts of the present case. So complainant can not be termed as consumer under the Provisions of Consumer Protection Act.
12. Consequently, the present complaint is not maintainable and is dismissed as such. However, the complainant is at liberty to approach the civil court or any other appropriate forum or court. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
07.09.2015 Member Member President
