Punjab

Ludhiana

CC/24/504

Khushinder Paul - Complainant(s)

Versus

Dawinder Kumar - Opp.Party(s)

Areen verma

22 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 504 dated 25.04.2024.                                                        Date of decision: 22.05.2024.

 

Kushinder Paul Mohindra, son of Late Shri Dharam Paul Mohindra, resident of 16, Green Park, Civil Lines. M. 99888-81001.                                                                                                                              ..…Complainant 

                             Versus

Davinder Kumar Garg, resident of B-1127, Vishnu Puri, Street No.1, Civil Lines, Ludhiana.                                                                                                                                                                                …..Opposite party

Complaint under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Arun Verma, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                The complainant has invoked the jurisdiction of this Commission by filing the present complaint alleging therein that he is a coparcener in Hindu Undivided Family (HUF) in the name of Rajinder Paul Mohindra and Dharam Paul Mohindra (HUF) account. The OP approached the complainant and his brother Rajinder Paul Mohindra offering to manage mutual funds and securities of HUF with assurance to get high returns, to which the complainant agreed with OP to manage the portfolio of HUF with further assurance to furnish timely information and details of the portfolio of the HUF. The complainant stated that on 08.11.2023, he requested the OP to inspect the HUF portfolio statements but the OP tried to avoid the inspection and handover copy of statements despite repeated requests of the complainant. Even the OP failed to give any reply to queries of the complainant. The complainant further stated that he has apprehension in his mind that OP is making illegal transactions in connivance with Rajinder Paul Mohindra and are trying to utilize the money for their wrong gain and for wrongful loss to the complainant. The complainant approached Kotak Mahindra Mutual Fund office for clarification where he shocked to know that OP has instructed the bank not to provide details of portfolio of HUF to the complainant and even the OP had redeemed the mutual fund of complainant worth Rs.3,50,00,000/-. According to the complainant, the OP had committed fraud with him by causing wrongful loss to the complainant and due to which the complainant has claimed to suffered huge mental pain, agony and monetary loss. The complainant sent a legal notice dated 14.11.2023 through his counsel Ms. Anannya Nayyar, Advocate to the OP but no reply was received. Hence this complaint, whereby the complainant has prayed for issuing directions to the OP to make payment of Rs.5,00,000/- as compensation as well as to pay Rs.22,000/- as litigation expenses.

2.                We have heard the counsel for the complainant on the point of admissibility of the complaint and have gone through the complaint, affidavit and documents annexed thereto.

3.                Section 2(7) (ii) of the Consumer Protection Act, 2019 defines the word “consumer”, which reads as under:-

       “Consumer” means any person who:-

 (ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service 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 service for any commercial purpose.”

 

Further Section 2(42) of the Consumer Protection Act defines the word “service”, which reads as under:-

“2(42) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision  of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

 

4.                A conjoint reading of both these sections postulates that a consumer must hire or avail service for consideration which could be paid or promise or partly paid or partly promised etc. Further any service which is being rendered free of charge or under contract of personal service stands excluded from the definition of word “service”. In the present case, the complainant has pleaded and contended that the services of the OP were availed taking into account impeccable reputation of the OP only. The complainant did not plead or placed any document to show that the services of the OP were hired or availed for consideration so to bring himself within the ambit of definition of  consumer”.

5.                Further the perusal of para No.6 of the complaint shows that the complainant has leveled the allegation of fraud against the OP. Even otherwise, the allegations in the complaint are that the OP had caused a loss to the complainant by redeeming the mutual funds worth Rs.3,50,00,000/-. Since there are allegations of fraud, this Commission cannot go into the allegations to determine the allegations of fraud as that would require recording of evidence in detail. Therefore, the appropriate remedy available with the complainant under the circumstances is to go to appropriate court. In this regard, reference can be made to The Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan in 2023 LiveLaw (SC) 251, whereby the Hon’ble Supreme Court has made the following observations:-

“Consumer Protection Act 1986 – The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortuous acts or criminality like fraud or cheating, could not be decided by the Form/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortuous acts.”

6.                Consequently, we are of the considered opinion that the complainant is not a consumer of the OP within the definition of Consumer Protection Act, 2019. So, we do not inclined to proceed with the same and hence the same is hereby dismissed summarily at the admission stage itself.  Copies of order be supplied to complainant free of costs as per rules. File be indexed and consigned to record room, but after registering the same.

 

(Monika Bhagat)                                  (Sanjeev Batra)                            Member                                                   President         

 

Announced in Open Commission.

Dated:22.05.2024.

Gobind Ram.