FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The fact of the case in brief is that the complainant Mr. Ashim Roy became the client of the OP vide agreement having Trading Code: KLR004, UCC Code KLR004. The complainant purchased 50 Nos. of shares of Reliance Industries Ltd. and 12 Nos. of shares of Reliance Power by way of application. For that, he opened a Demat account with a sum of Rs.  5,000/- on 01.10.2015. This was done with a view to earn his livelihood purpose by means of self employment. The OP sold out the entire shares of Reliance Industries and that of Reliance Power of the complainant which were carried the loss of transaction during the period 2015-16, 2016-2017 and 2017-18. The sale was made by the OP without giving any intimation to the complainant. The sale was made by the OP through one Mr. Debraj Bhowmik who happens to be Assistant Vice President of BadJet Stock & Share Pvt. Ltd. The said Assistant Vice President Mr. Debraj Bhowmick earned the commission through the sale with a loss of transaction amounting to Rs.  80,000/- for both the shares. The complainant visited the OP several times to know the reason for selling the entire shares with a loss amount to Rs. 80,000/-. Thereafter, a registered letter to Mr. Debraj Bhowmick on  19.06.2018 was sent by the complainant which was acknowledged by the OP on  20.06.2018. It was told that the matter has been referred to their corporate office at Nagpur. The corporate office through a letter dated 04.07.2018 sent their reply to the complainant. The reply from the corporate office is very much frustrating and it has been also been pointed out that a debit balance of Rs. 15,355.74/- is there in the Demat account. In the said reply, there was no mention how the said shares had sold out with a loss of transaction within 02 - 04 hours in a single day rather they threatened the complainant that legal action will be taken if the debit balance of Rs.  15,355.74/- is not paid.  

As per submission, the complainant is at a loss of Rs. 1,25,000/- for the sale of the entire share of two companies for which he has approached the commission for justice with relief as detailed in the complaint petition.

The OP 2 has filed their WV contending inter alia that the complaint is bad in law for suppression of material fact and the complainant has not come in clean hand. The OP has denied all the allegations leveled against them and prayed for dismissal of the complaint. The OP-2 states that the OP-1 was an employee of the Badjet Stock & Shares Pvt. Ltd. and he has retired from service on 31.08.2018.  The OP-2 has further stated that the investment in share is not for the livelihood of the complainant. Not a single document is furnished showing the income status of the complainant and the complainant has not declared on oath that he has no other income. It is therefore, the onus of the complainant to prove that share trading is his only source of income and livelihood. The OP-2 states that the shares were sold as per instruction and authority of the complainant. It is denied that the OP-2 has sold the share at loss during the period of financial year of  2015-16,  2016-17 and 2017-18. The Reliance shares were sold on  08.11.2016 and credit of which is reflected in his ledger account. The said credit balance was utilized against his purchase and loss in investment of shares of other companies in which the complainant has suffered loss in those transaction. The complainant is fraudulently claiming loss on Reliance Shares though no loss was suffered by him in Reliance Shares. The complainant is to prove the same. The contention  of the complainant that the OP-2 has sold the entire shares within 3 to 4 hours and shown the entire shares sold on loss is denied being false and baseless. The OP-2 has rightly claimed debit balance of Rs. 15,355.74/- against the D-mart account as per the terms and conditions of the trade and as per ledger account duly maintained by the OP-2. The claim of Rs.  1,25,000/- by the complainant is unjustified, false and frivolous. The complaint has been filed to blackmail and pressurize the OP-2 from taking legal recourse for recovery of debit balance amount of Rs. 15,355.74/- against the complainant. It is submitted that there is no deficiency on the part of the OP-2 which the complainant be put to strict proof of all his contentions.Moreover,regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit. Thus, this activity is purely commercial one and is not covered under the consumer protection act. The entire claim is account based requiring cogent evidence & proof. The complainant is required to prove the case beyond all the reasonable doubts.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1) Whether the OPs are deficient in rendering proper service to the complainant?
            2)   Whether the OPs have indulged in unfair trade practice?

3)    Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3:-

All the points are taken up together for sake of convenience and brevity in discussion.

            The fact of the case in brief is that the complainant Mr. Ashim Roy was the holder of 50 Nos. shares of Reliance Industries and 12 Nos.shares of Reliance Power vide trading code No. KLR004 with the OP Badjet Stock and Shares Pvt. Ltd. The complainant’s claim to have an agreement with the OP is not supported by any document rather it has been proved through questions and answers of the parties involved herein that there is no such agreement. The Demat  Account was opened on 01.10.2015. There are several transactions since then.  As per statement of the OP  the Reliance Share were sold on  08.11.2016  and credit of which is reflected in the ledger account of the complainant. The said credit balance was utilized against his purchase and loss in investment of shares of other companies in which the complainant has suffered loss in those transactions. The complainant has not raised any objection against the above statement of the OP.  As a result, it is established that selling of the Reliance Shares was not done on loss basis. The allegation of selling the above shares at a loss is not distinctively shown and proved by the complainant through document  rather the denial of the OP for selling the shares at a loss is not counter argued by the complainant by producing suitable documents.  We have travelled over the questionnaire put forth by the OP to the complainant and the answers given by the complainant.

Question No. 3: “Can you deny that you made profit after selling of shares of 50 Nos. of Reliance Industries Shares Ltd and 12 Nos. of Reliance Power?”

Answer by the complainant: I denied your statement

Question No. 19:  “How can you say that the OP-2 has sold your shares under question  at a loss without your consent. Have you furnished any document evidencing such statements of yours?

Answer by the complainant: Yes, it is true, just and proper, you know very well.

Question No. 20: “How can you establish your claim from the OP-2 to the tune of Rs. 1,25,000/-?”

          Answer by the complainant: On that time the share values of Rs. 1,25,000/-.   

The answer to the question No. 3 put forth by the OP-2 is abstract and not supported by any document.

The answer to the question Nos. 19 and 20 are also abstract and not supported by any cognizable document.

From the facts and circumstances of the case and the materials placed on record, it is established that the complainant was in the trading business with the OPs  since 01.10.2015 and no document has been furnished by the complainant to prove that the selling of the shares in question was done on loss basis rather the statement of selling of those shares on profit basis as claimed by the OPs are not proved wrong by the complainant with relevant documents. Moreover, the answers of the complainant under  question Nos. 3, 19 and 20  put forth by the OPs are also  very much vague and not authenticated by proper documents. Mere claiming of loss in trading without cogent evidence does not give  any support to the complainant.

In view of the above we are of the considered opinion that the complainant has failed to establish his case against the OPs.

In the result, the consumer case fails.

Hence,

Ordered

That the complaint case be and the same is dismissed on contest against the OPs without any order as to cost.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties.