Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  22.01.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to pay Rs. 3,76,000/- along with interest @ 18% per annum.
2. To pay Rs. 1,00,000/- ( Rs. One Lac only ) as compensation.
3. To pay Rs. 10,000/- ( Rs. Ten Thousand only ) as litigation costs.

2. The facts of this case lies in a narrow compass which is as follows:-

This case was heard at the point of maintainability.

The learned counsel for the complainant ( 1^st Party ) has asserted that this case is maintainable while the opposite parties ( respondents ) have asserted that it is not maintainable. On both sides multiple decisions have been referred in support of their claim.

Before recording finding in this matter we think it proper to briefly narrate the facts asserted by the parties.

The complainant has filed this complaint stating therein that vide annexure – 1 he has given Rs. 3,76,000/- to opposite party no. 1 in name of opposite party no. 2 ( Bonanza Portfolio Ltd. ). The aforesaid money was transferred to the aforesaid respondent through cheques issued between 23.11.2007 and 08.07.2010 the details of transfer had been mentioned in annexure – 1. It has been further asserted that prior to using the amount of aforesaid cheques the opposite party no. 1 had to take consent of the complainant as per oral agreement. The grievance of the complainant is that without his permission the respondent no. 1 has used the aforesaid cheques after depositing the same in demate account bearing no. DBPR0345 which belong to his wife with sole intention for getting brokerage. The complainant approached respondent no. 1 several times in order to know about the expenditure of his aforesaid amount and have written several letters in this regard. However vide annexure – 3 the details of aforesaid transactions of the demate account of his wife of the complainant was furnished to him. The complainant has asserted that after perusing the aforesaid ledger provided by respondents vide annexure – 3, it came to light that the opposite parties have deposited his amount in the Khata bearing DBPR0345 of his wife Asha Devi without his consent against the oral agreement and thus the complainant was put to loss by opposite parties who have acted fraudulently.

It has been further asserted that opposite party no. 2 and 3 have also used the aforesaid cheques by depositing the same without any authority and thus they have also committed fraud on collusion with opposite party no. 1.

On behalf of the respondent a preliminary objection was taken in which it was submitted that respondent company is discharging its business which is covered under the provision of special act called “ Security and Exchange Board of India Act, 1992 ( SEBI )”.

It has been further submitted that the SEBI being a special act prescribed various dispute resolution mechanism such as Arbitration etc. which are empowered under the law to deal with such matters and hence this Forum is not competent to decide this complaint.

It has been further submitted that the complainant was required to approach the Exchanges and he has to go through the Arbitration Mechanism of NSE as laid down in laws of the Exchange.

On behalf of the respondent no formal written statement has been filed but application for dismissal of the complaint has been filed with several citations stating therein that this compliant case is not maintainable. On behalf of the complainant a reply and written arguments has been filed.

We have carefully gone through the record of this case in order to record our findings on the point of maintainability.

From bare perusal of Para – 2,3 and 4 of complaint petition the real picture emerges.

In Para – 3 the complainant has asserted that in the year 2007 opposite party no. 1 contacted him and impressed on him that if Rs. 5,00,000/- is given to him then after 5 years he will return 40 – 50 Lacks or with 18% compound interest.

Thus it is clearly proved that the purpose was not to earn bread and butter rather the investment was done with commercial purpose.

It is needless to say that in whole of complaint it has not been asserted that aforesaid investment was done for earning his livelihood.

Hence in our view the complainant is not a consumer within the nearing section 2 (1)(d) of Consumer protection Act, 1986 as complainant has not made investment for earning bread and butter.

However the complainant has asserted that opposite party no. 1 has committed illegality and fraud by depositing the money in the demate account of his wife for earning brokerage without permission of complainant. If the matter is so he is free to take any action in accordance with the law.

Apart from the aforesaid facts, it is worth mentioned that the matter relating to share etc. can only be decided by SEBI through its several mechanism which is a special Acts enacted for such purpose hence on this count also, this Forum has no authority to decide such matters.

However the complainant is at liberty to approach the SEBI or criminal Court for redressal of his grievance in accordance with the law.

We made it clear that we have not decided this case on merit.

Thus this case is dismissed for not being maintainable in this Forum for the reasons mentioned in above paras.

                                        Member                                                                   President