BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt.  Case No:  854 of 2009

Date of Institution:   16.06.2010

Date of Decision  :   29.09.2010

Satish Kumar Mahajan s/o Sh.Sham Dass, resident of H.No.316, Sector 20-A, Chandigarh. 

……Complainant

V E R S U S

1]       BLB Limited through its Managing Director, Registered Office 4764/23-A, Ansari Road, Darrya Ganj, New Delhi 110002

2]       BLB Limited through its Branch Incharge, SCO No.445-446, IInd Floor, Sector 35, Chandigarh.

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                           PRESIDENT

                    SH.ASHOK RAJ BHANDARI              MEMBER

                    MRS.MADHU MUTNEJA                          MEMBER

PRESENT:      Sh.P.K.Kukreja, Adv. for the complainant.

Sh.Ravinder Rana, Adv. for the OP.

PER MADHU MUTNEJA, MEMBER

                This complaint has been filed by Sh.Satish Kumar Mahajan against BLB Limited.  The complainant has alleged that he is entitled to the following amount from the OP’s:-

a)        Stock value as per statement of applicant – Rs.5,94,654.00

b)        Sale price as on 17.01.2008 (-) Rs.1,46,727.50

c)        Add credit amount of cash segment (+) Rs.1,02,413.13

Net Balance : Rs.5,50,339.67

He has thus prayed that the OPs be directed to pay the above amount along with compensation.

1]             The facts of the case are as under:-

                The complainant is a self-employed person and invests money in the share market.  Being attracted by the advertisements published by the OPs, the complainant opened a Stock Trading Account with OP No.2.  He was allotted Share Account No.P-9010077 on 14.7.2007.  The complainant has alleged that at the time of opening the account, the OPs obtained signatures on various printed papers which had blank columns from him.  No copies of the said documents were ever supplied to him. OP No.1 is a Member of NSE/BSE.  It opened its trading branch in Chandigarh in 2007. 

                The complainant has alleged that the OPs were under an obligation to provide him all the details of transactions, bills, account statements and brokerage amount etc. with regard to his account.  The complainant has submitted complete details of payments made by him to the OPs.

                The  complainant has alleged that the OPs did not supply any of the above stated documents to him on a regular basis. Even though the OPs had opened a Dmat account for the complainant, but the shares purchased by the complainant were not transferred to the said dmat account. Resultantly, the entire control over the sale/purchase of shares held in the name of the complainant remained absolutely under the control of the OPs

                Finally on 17.1.2008, the complainant requested the OP No.2 to square up his position by selling all his shares and settle his account.  On this date, the rates of all shares as well as the net position of his account was given to the complainant.  He was informed by Sh.Tarun Gupta, Terminal Operator/ employee of the Ops that after selling the stocks, he would be paid Rs.5,94,654/-.  The details of the position has been placed at Ann.C-3.

                The complainant has alleged that he again approached the OP No.2 on 18.1.2008, and requested for release of payment but the OPs did not settle his account.  In fact they sent a statement showing a credit balance of Rs.1,02,413.13 in the account of the complainant.

                The complainant again approached OP No.2 for realization of the amount but despite various requests, no amount was received.  The complainant then wrote a letter to OP No.2 on 24.1.2008 with a request to square up his position and release the payment.  A copy of this letter is at Ann.C-5.

                Unfortunately, the OPs failed to release any payment to the complainant.  The complainant has given details of various amounts unlawfully deducted for the various share transactions as also details of shares sold at lower rates. 

                After raising demand notices on 24.1.2008 and 18.5.2008, the complainant was surprised when the OPs started demanding Rs.1,33,226.80 from the complainant.  The OPs had also filed an arbitration petition before the Arbitration Tribunal against the complainant.

                The complainant has thus filed the instant complaint before the District Forum, as an alternative remedy, available to him under Section 3 of the Consumer Protection Act requesting that the OPs be directed to pay Rs.5,50,339.67 to him along with interest and compensation.

2]             After admission of the complaint, notices were sent to the OPs.

                The OPs instead of filing a written statement, initially filed an application under Section 8 of the Arbitration & Conciliation Act,1996 read with Section 11 of the Code of Civil Procedure, 1908 for referring the matter for arbitration on behalf of the OPs or alternatively to dismiss the complaint in view of principles of res judicata.

                In this application, OPs have stated that any dispute, issue, differences, claim raised by the complainant before this Forum are actually the subject matter of arbitration.  Relying on the arbitration clause of the Member Client Agreement of NSC, the OPs have stated that all subject matter of the complaint with regard to unlawfully deduction and selling of shares on lower rates etc. are for consideration before the Arbitrator only.        

                With regard to this, the OPs have submitted that the matter was already before the ld.Arbitrator Sh.Vijay N. Mathur in Case No.F&O D-255/2008titled as BLB Limited Vs. Satish Kumar Mahajan, which are the same parties in this  case and have been heard and finally decided by the said Arbitrator in its award passed on 7^th August, 2009 more specifically in Para No.5 and Para No.10 of the said award dated 7.8.2009, thus are clearly hit by Section 11 principles of res judicata thus cannot be heard by this Forum.  The copy of arbitration award I at Ann.B.

                Further Section 11 of the C.P.C. clearly provides that no Court shall try any Suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 

                Relying on Section 8 of Arbitration & Conciliation Act, 1996, the OPs have requested that the Forum may make an order to refer the matter for arbitration or alternately dismiss the complaint.

                The OPs have attached the award passed by the Arbitrator at Ann.B.  In the Award titled “BLB Ltd.-Applicant Vs. Satish Kumar Mahajan-Respondent,” it has been held that:-

“The Respondent shall pay Rs.1,33,226.80 (Rupees One Lac Thirty three Thousand Two Hundred Twenty Six and Eighty Paisa only) within 30 days from the date of the Award.  In case of delay beyond this period, the Applicant shall in addition pay simple interest @10% p.a. from that date till the date of payment.”

                The complainant had filed a reply to this application of the OPs and submitted that the provisions Section 8 of Arbitration Act are not applicable before this Forum.  Denying all the facts and contents of the application of OPs, complainant has submitted that the application be dismissed with costs.  The application filed by the OP’s was disposed of by this Forum on 31^st May, 2010 with the following order:-

                The OPs subsequently filed their written statement and took the same plea of arbitration, as taken in their application, mentioned above.  They have also submitted that the complainant is not a consumer under Section 2(1)(d)(i) & (ii) of the Consumer Protection Act.  On merits, they have admitted that the complainant had a share trading account with the OPs.  They have denied that they did not transfer shares of the complainant to his dmat account and also that the complainant never requested the OPs on 17.1.2008 to dispose of or square up his position.  No employee of the company or Sh.Tarun Gupta gave any promise or assurance to the complainant that he would be paid Rs.5,94,654/- after the sale of the shares. 

                The OPs have submitted that on 17.1.2008 the market was on its peak and after 18.1.2008 the market started falling.  They have also denied the letter dated 24.1.2008 sent to them by the complainant.  They have submitted that the shares of the complainant were sold at the market rate and question of low or high rates does not arise. Every transaction in the account of the complainant was effected in accordance with the rules laid down by NSE in terms of Member Client Agreement. 

                 They have also stated that they have not caused any loss to the complainant.  In fact Rs.1,33,226.80 is due to them from the complainant.  This amount has also been adjudged as due from the complainant in the Arbitration Award (Ann. B), already mentioned above.  The OPs have thus prayed for dismissal of the complaint.       

3]             We have heard the ld.Counsel for the parties and have also perused the evidence and documents placed on record by the parties. 

4]             The complainant has appended the Member Client Agreement and the complete details of transactions from 27.11.2007 onwards.  The complainant has submitted that certain shares were sold at lower rates then the prevalent market rates at that particular time.  Also he had asked the Ops to sell the shares on 17.1.2008.  The Ops have admitted that on this date the rates of shares were peaking.  They have denied the instructions from the complainant on 17.1.2008.  The shares were sold by the OPs at a later date.

5]             After hearing the details of all the transactions as well as oral communications alleged to have been made between the parties for sale/purchase, squaring up of accounts, we are of the view that the issue made out here would involve leading of evidence and counter-evidence from both the parties.  All details of transactions and their effect on the total resultant amount would need verification.  We feel that we would not be able to adjudicate upon the matter properly and satisfactorily under summary procedure available under Consumer Protection Act.

6]             The OPs have even denied the receipt of letter dated 24.1.2009 issued by the complainant in which he has asked them to sell his shares.  According to them all letters and instructions of the complainant are fabricated.  The OPs have placed reliance only on the Arbitration Award dated 7^th August,2009 and the order of the ld.Arbitrator in the case, which has already been mentioned above. 

7]             We sympathize with the complainant for the loss suffered by him but the evidence placed on record by him to prove his case has been denied by the OPs.  Even the details of statement of account would be unclear without correlating them to the factual position of NSE on that particular date. 

8]             The jurisdiction of The Consumer Protection Act is very limited. It does not allow taking of evidence to ferret out contentious issue of facts and transactions. 

                The Hon’ble Supreme Court of India in Standard Chartered Bank & Ors. vs. Directorate of  Enforcement & Ors, 2005(4) SCC 530, at Para No.61 has held:-

“A number of arguments were addressed by learned counsel as to what is the true function of the court in interpreting a statute.  We would prefer to tread the conventional path that the maxim “judicis est just dicere, non date” best expounds the role of the court.  It is to interpret the law, not to make it.  The court cannot act as a sympathetic caddie who nudges the ball into the hole because the putt missed the hole.  Even a caddie cannot do so without inviting censure and more.”

9]             In view of the above, without expressing any opinion whatsoever on the merits of the complaint, we deem it appropriate to dispose of the complaint as the case requires detailed oral as well as documentary evidence, extensive calculations, cross-examinations of witnesses etc. and as such cannot be decided summarily under the Consumer Protection Act.  Therefore, the complaint is accordingly disposed of with a liberty to the complainant to approach the appropriate Civil Court for redressal of his grievance. 

                Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

29^th Sept., 2010                                                           

(LAKSHMAN SHARMA)

PRESIDENT

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                    (MADHU MUTNEJA)

MEMBER

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