FINAL ORDER/JUDGMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The present complaint has been filed by the complainant before this commission alleging deficiency in service and unfair trade practice by the OPs and has prayed the following reliefs:-
- Direct the OPs to pay Rs. 9,72,000/- along with investment amount of Rs. 1,00,500/- to the complainant coupled with Rs. 1,000/- per day as compensation from the date of payment of principal amount for harassment and mental agony.
- Direct the OPs to pay a sum of Rs. 1,00,000/- as litigation cost.
The brief facts necessary for the adjudication of the present complaint is that the OP-1 is a Stock Broker Company and OPs 2 and 3 are its Directors. OP-4 is a Sub-broker under OP-1. OPs have offered the complainant to deposit Rs. 1,00,000/- to the OP-1 with an assurance that he will get monthly interest @ 9 % for a period of 10 years from the date of investment with a liberty to withdraw the investment amount at any point of time prior to its maturity. In pursuance of the offer made by the OPs, the complainant investment of Rs. 1,00,000/- to the OP-1 by an account payee cheque being No. 117866 drawn on UBI Baranagar Branch along with Rs. 500/- as registration charges against an account payee cheque being No. 117867 drawn on UBI Baranager Branch and the OP-1 incashed both the cheques. Despite several request, the OP-1 did not issue any money receipt against payment of Rs. 1,00,500/-. The OPs promised to invest the deposited amount in share trading business an agreement dated 07.07.2009 was executed between the parties. The OPs are bound to pay monthly amount of Rs. 9,000/- to the complainant as per their assurance but they had paid less amount than Rs. 9,000/-. Since February, 2010 the OPs stopped their payments to the complainant violating their commitment.
Further case of the complainant is that since January, 2010 the OPs failed and neglected to make any payment to the complainant without any cogent reason. Ultimately, vide letter dated 10.07.2012 the OP-1 intimated the complainant that his account has been closed due to non operation of the said account for passed few months and also intimated that he has to clear the outstanding amount against the said account. The OPs breached the agreement dated 07.07.2009. Complainant never operated any DMART Account. The OPs obtained signatures of the complainant in voluminous number of pages in a booklet and its contains was never read over and explained to him. The OPs cheated the complainant including other investors with a false promise to provide service and/or benefit. The OPs failed and neglected to perform their contractual obligation for which the complainant suffered mental agony and pain. Hence, the consumer complaint.
OPs 1 to 3 have contested the case by filing a joint WV whereby they denied the material allegations of the complainant. The specific case of the answering OPs is that OP-1 is a Trading Member registered with National Stock Exchange and OP-4 introduced the complainant with them and the complainant had opened DMART Account with the OP-1 by investing Rs. 1,00,000/- for the purpose of share trading under different segments and in pursuance thereof view trades carried out through the said account time to time. The complainant has also received pay out to Rs. 53,000/-. Complainant executed several documents and rights and obligation agreement including risk disclosure statement, which expressly set out various risk involved in the Capital Market. Complainant also aware the facts of the risk of trading of capital market also. The complainant on his own decision invested the money in the share market and the answering OPs are not to be held liable for any losses suffered by the complainant. The investment is always subject to market risk and the complainant was all along aware of the fact of market risk. The complainant had voluntarily executed all the documents i.e. Client Registration Form, Member Client Agreement including the Risk Disclosure Statement which expressly speaks about various risk involved in marketing investment in capital market. The complainant had several transactions in the said DMART Account and also received several layouts from time to time. The answering OPs denied other allegations leveled against them. Thus, the answering OPs have prayed for dismissal of the complaint with cost.
Despite service of notice of the complaint, the OP-4 did not turn up to contest the case by filing WV within the stipulated period as per Consumer Protection Act. Thus, the case runs ex parte against the OP-4.
Both parties have filed their evidence by way of affidavit in order to prove their averments on record. We have perused the material available on record and heard the counsel for the parties.
The fact that the complainant had invested Rs. 1,00,000/- with the OP-1 in the share trading under the different segments and time to time complainant has received pay outs. It is also true that the complainant also executed agreement dated 07.07.2009 with the OP-1 and the combined risk disclosure document for capital market/cash segment. The counsel for the complainant has argued that the contents of the documents dated 07.07.2009 was never read over and explained to the complainant prior to execution. In our view, if the containts of the agreement and other documents was not read over and explained to the complainant then why the complainant kept mum for about 10 years as the complainant alleged such facts first time in the complaint petition. There is no dispute that the agreement dated 07.07.2009 shall be terminated by the Stock Broker/OP-1 and the Client/Complainant without giving any reasons to the other parties and on termination, all rights, liabilities and obligations of the parties arising out of or in respect of transactions entered into prior to the termination of the agreement shall continued to subsist and vest in/be binding on the respective parties or his/its respective heirs, executors, administrators, legal representatives, successors, as the case may be. Clause 2.2 of the Combined Risk Disclosure document for capital market cash, segment and futures & options segment goes to show that risk of share trading option is on the shareholder. The OP-4 being the Sub-broker and she has no responsibility to refund the investment amount to the complainant as he acted as a broker of OP-1.
In the instant case the complainant well established that he invested Rs. 1,00,000/- to the OP-1 and the OPs 1 to 3 failed to refund the said amount despite repeated request of the complainant. On the basis of foregoing discussion, we are of the view that the OP/BMA Wealth Creators Pvt. Ltd. and the OPs 2 and 3 being the Directors of OP-1 are directed to refund Rs. 1,00,000/- to the complainant along with interest @ 9 % p.a. from the date of filing of the complaint petition i.e. 01.02.2019. The OPs 1 to 3 are jointly and severally directed to pay Rs. 25,000/- to the complainant for mental agony and harassment with litigation cost of Rs. 5,000/-. The OPs 1 to 3 shall pay the awarded amount within 90 days from the date of this order. The delay beyond 90 days shall attract interest @ 7 % p.a. till its realization. For failure or omission in compliance within the stipulated period, the complainant shall be at liberty to put the order in execution as per CP Act.
Copy of the judgment be supplied to the parties free of cost as per CP Act. Upload the judgment on the website of this Commission for perusal of the parties.
