Complainant by filing this complaint has submitted that complainants and Chandan Kumar Ray, since deceased are two full brothers by relation being sons of Late Pramatha Nath Ray.
Op is a company registered under the Companies Act, 1956 and is a member of National Stock Exchange, Depository Participant of NSDL and CDSL and op being a Depository Participant of NSDL and CDSL opens DEMAT Accounts for its customers for trading of stocks and shares.
Lt. Chandan Kumar Ray was a lecturer in Mathematics at Kancharapara College and he was not keeping well since 2006 and a operation was held in his liver at Apollo Hospital Chennai sometimes in the year 2007 and after that his health condition was deteriorating and due to certain problems with his wife, Smt. Utsa Ray, he preferred to stay with his brothers at 1/A, Nemai Bose Lane, P.S.- Burtolla, Kolkata – 700006 and complainants and other brothers were looking after Late Chandan Kumar Ray after he came from Chennai to Kolkata. Chandan Kumar Ray was admitted to Apollo Hospital Kolkata where his treatment was done by the complainants and thereafter he expired.
When Chandan Kumar Ray, since deceased was alive, he had a DEMAT Account being Client ID No. 10343296 jointly with the complainant No.2 with the op East India Securities Ltd. and the shares in the said DEMAT Account were held jointly by Chandan Kumar Ray, since deceased and complainant no.2 and the complainants Asesh Kumar Ray and Tarun Roy also held a separate DEMAT Account being BO A/C No./Client ID No. 10261104 with the op.
Chandan Kumar Ray died on 11.11.2008 there after the op had after scrutinisation of accounts transferred the shares in the BO A/C No./Client ID No. 10343296 held jointly by Chandan Kumar Ray and Tarun Roy to BO A/C No./Client ID No. 10261104 held jointly by Asesh Kumar Ray and Tarun Roy on or about November 2008 and thus Asesh Kumar Ray and Tarun Roy became the sole and absolute owners of those shares in BO A/C No./Client ID No. 10343296 held jointly by Chandan Kumar Ray and Tarun Roy after those were transferred to their account being BO A/C No./Client ID No. 10261104.
The shares held jointly by the said Chandan Kumar Ray and since deceased and the complainant no.2 with the op in the DEMAT Account being BO A/C No./Client ID No. 10343296 transferred to BO A/C No./Client ID No. 10261104 of the complainants are morefully and particularly described in the Schedule herein.
The op unequivocally and unconditionally and without any reservation whatsoever had duly credited the shares as mentioned in the Schedule herein to the DEMAT Account of the complainants being BO A/C No./Client ID No. 10343296 to BO A/C No./Client ID No. 10261104.
On or about 26.08.2010 complainants were surprised to receive a letter dated 12.08.2010 from the op wherein the op stated that Smt. Utsa Ray submitted a succession certificate in her name to claim 50 percentof all securities held in BO A/C No./Client ID No. 10343296 of Chandan Kumar Ray and Tarun Roy which were inoperative and without any balance and the op admitted that the said shares were transferred to the BO A/C No./Client ID No. 10261104 of the complainants on 15.11.2008. The letter dated 12.08.2010 stated that the op had unilaterally decided to transfer the 50 percentshares BO A/C No./Client ID No. 10343296 of Chandan Kumar Ray and Tarun Roy held in the complainants’ A/c No. 10261104 to Smt. Utsa Ray. So, it is clear that the said BO A/C No./Client ID No. 10343296 was inoperative and without any balance at the relevant point of time and op took a plea that they had done so under the advice of NSDL but never produced any papers to the complainants because the said letter dated 12.08.2010 by the op did not contain any documents and/or any copy of the alleged succession certificate obtained by Smt. Utsa Ray.
Subsequently the op informed by a letter dated 29.04.2011 that as per advice of NSDL the op has distributed the shares to Utsa Roy and op did never provide the letter and/or instructions from NSDL neither replied to the queries made by the complainants regarding the same and complainants had since written letters to NSDL regarding the said issue but the NSDL did not confirm and reply to the complainants regarding their purported advice to the op. So, it can be stated that the reference made by the op to NSDL as purportedly claimed by the op has no basis and is false and fabricated.
No doubt op by a letter dated 01.04.2009 informed that op had frozen those shares in the BO A/C No./Client ID No. 10261104 held jointly by Asesh Kumar Ray and Tarun Roy which were transferred from BO A/C No./Client ID No. 10343296 held jointly by Chandan Kumar Ray and Tarun Roy.
By such letter the op did not mention from when the op had frozen the shares in the said account without reflecting such act of freezing in the accounts of the complainants being No. 102611104 and the op had sent account statements in BO A/C No./Client ID No. 10261104 held jointly by Asesh Kumar Ray and Tarun Roy indicating as usual that the shares in BO A/C No./Client ID No. 10343296 held jointly by Chandan Kumar Ray and Tarun Roy were transferred to the said BO A/C No./Client ID No. 10261104 held jointly by Asesh Kumar Ray and Tarun Roy and the account statement dated 01.04.2009 for March 2009 is also filed with the complaint.
In the letter dated 01.04.2009 the op stated that the op requested the complainants to come to the op’s office and discussed the matter which is a false statement as the op never asked the complainants to visit the op’s office for any discussion at all and letters dated 20.04.2009, 09.05.2009 and 25.05.2009 by the complainants and the op are also part of the complaint.
Subsequently on the basis of the complainants’ letter dated 27.08.2009 op wrote a letter dated 21.09.2009 informing that the shares in the said account was frozen as on 20.01.2009 which the op never revealed in the op’s letter dated 01.04.2009 and even the acts of freezing were not reflected in the statement for January 2009. Later only to hide their false and illegal actions the op submitted some false duplicate statement showing such transactions stating that the earlier statements contain some printing mistakes and it may be stated that such mistakes were not communicated earlier and were informed only when the complainants wrote a letter dated 27.08.2009. So it cannot be accepted as the first statements being the original statements are to be relied upon and the copies of the letter dated 27.08.2009 and 21.09.2009 are also annexed with the complaint.
Fact remains that the complainants stated that Utsa Roy never claimed 100 percentof the shares in the said account and always claimed 50 percentshares but still the op kept the rest 50 percenttotaling 100 percentof shares frozen without any reason in an illegal and unauthorized manner for ulterior motive and illegal purpose.
Op ultimately released the said 50 percentshares held in BO A/C No./Client ID No. 10343296 held jointly by Chandan Kumar Ray and Tarun Roy and presently held in BO A/C No./Client ID No. 10261104 by the ops’ letter dated 18.05.2011 which was received by complainants on 20.05.2011 wherein the op sent a statement of accounts from 01.04.2011 to 30.04.2011 and op released the shares at a time when the market was vulnerable and was going through a turmoil.
It is specifically mentioned that complainants sent several letters to the op asking the op why and how the op kept the shares frozen without any orders of court when the shares were actually transferred to complainant’s account and the letters dated 29.09.2009 and 11.11.2009 by the complainants are also annexed.
Fact remains that in case of joint holding of shares by two persons the surviving holder will be the owners of the shares held in such joint account. Therefore, the complainants stated that such acts of freezing of the said shares were unilateral and the op had not given any chance to complainants to defend or place their case and as such freezing shares was ex facie illegal.
It is most surprising that from January 2009 till May 2011 the op kept even the 50 percentshares out of the 100 percentshares in the BO A/C No./Client ID No. 10343296 held jointly by Chandan Kumar Ray and Tarun Roy though the same were transferred to BO A/C No./Client ID No. 10261104 held jointly by Asesh Kumar Ray and Tarun Roy and had not allowed complainants to trade on the same although the op ought t have released the said 50 percentof shares which belonged to Tarun Roy in the joint account of Chandan Kumar Ray and Tarun Roy being BO A/C No./Client ID No. 10343296 as per law which ought to have been allowed to be traded by complainants when Utsa Roy also neither claimed the said 50 percentshares nor there were any court orders to that effect.
The act of the op and their actions by freezing 50 percentshares of the complainants in the joint account of Chandan Kumar Ray and Tarun Roy BO A/C No./Client ID No. 10343296 which the complainant no.2 is legally entitled and the complainants have suffered a loss of Rs. 13,87,899/- being the value of the shares and the trading that complainants could have done if such 50 percentshares were made available to them and complainants have made calculations of such share trading based on values of shares as per Bombay Stock Exchange and complainants had made detailed malafide withholding of shares without any reason altogether and the calculations made by complainants is annexed by which the said amount of Rs. 13,87,899/- can be well justified.
For the op’s illegal and malafide actions which were made with ulterior motive to defraud complainants and the complainants are also entitled to compensation from the op which complainants assessed at Rs. 6,00,000/- for damages, mental harassment and discomfort and in fact op had made deficiency in service as well as caused extreme financial losses to complainants as indicated above. Ultimately complainant sent Advocate’s letter on 30.12.2011 to the op calling upon them to make payment within a fortnight of the receipt of this letter otherwise complainants will have no other option but to initiate appropriate legal proceedings against the op the costs and consequences the op shall solely be liable for and despite receipt of the said letter the op did not comply with requisitions of the said notice.
But the op replied by their letter dated 20.01.2012 they had denied all allegations and in the above circumstances, complainant has prayed for relief for refunding a sum of Rs. 13,87,899/- being the profit of the shares by way of trading that complainants could have done and for compensation etc.
On the other hand ops by filing written statement submitted that the present complaint is not maintainable either in fact or in law the entire allegation is false, incorrect and baseless and material fact has been suppressed by the complainants and with ulterior motive this complaint is filed with some frivolous, vexatious statement and complainants have not appeared before this Forum with clean hands for which the complaint should be dismissed.
It is specifically mentioned that op is engaged in business of holding stocks of shares for its clients and is acting as an agent of the NSDL as per the rules and bye-laws by NSDL in this regard.
It is specifically admitted by the op that Chandan Kumar Ray since deceased and one of his brother Tarun Roy, complainant no.2 entered into a Client DP Agreement on 06.11.2009 with the op for opening a De-materialised Account with the op and held a joint Beneficiary Account with the op vide Client Id. No. 10343296.
It is specifically mentioned that complainants are two brothers of Late Chandan Kumar Ray entered into a similar DP Agreement dated 05.02.2002 with the op for opening De-materialised account with the op and held a Joint Beneficiary Account with the op vide Client Id. No. 10261104.
Suppressing the fact of the aforesaid agreement dated 06.11.2003 and 05.02.2002 at Arbitration Clause 17 of the said agreement. But even then complainants have filed this complaint.
Fact remains that complainant no. 1 has no right to file instant case as he is or was not the lawful owner of the shares belonging to the De-materialised Account held jointly by Late Chandan Kumar Ray and Tarun Roy, the complainant no.2 herein, vide Client Id. No. 10343296 at any point of time and it is pertinent to mention here that the complainant no.1 was neither the joint holder in the aforesaid de-materialised account nor the legal heir of Late Chandan Kumar Ray.
Truth is that complainants with ulterior motive and malafide intention concealed the news of the death of Chandan Kumar Ray and deposited the delivery instruction slip, after his death, which complainant no.2 stated that it was signed by the deceased before his demise for transfer of shares lying in the De-materialised Account jointly held by Late Chandan Kumar Ray and Tarun Roy, the complainant no.2 into another account jointly held by the complainants by virtue of which the complainants are falsely claiming themselves to be the sole and absolute owners of those shares.
In fact complainants were never the sole and absolute owners of the aforesaid shares caused to be fraudulently transferred which can be adequately proved from the Succession Certificate submitted by Smt. Utsa Ray, widow of Late Chandan Kumar Ray.
The surviving holder of the aforesaid De-materialised Account, Tarun Roy, the complainant no.2 herein suppressed the fact that the said Chandan Kumar Ray expired on 11.11.2008 and just for four days after the death of the said Chandan Kumar Ray got the shares held in the aforesaid account transferred fraudulently and with malafide intention into another account held jointly by the complainants vide Client Id No. 10261104 by submitting delivery instruction slips under normal course of business with the op without following the prescribed procedure laid down by the NSDL in this regard. At this point of time the op was not aware and/or was not made aware about the death of the said Chandan Kumar Ray by the complainants.
The procedure for valid transfer of shares as laid down by the NSDL stated that upon death of one of the joint holders of the De-materialised Account, the surviving holder, in this case Tarun Roy, the complainant no.2 herein, should have intimated the op about the date of death of Chandan Kumar Ray immediately upon his demise and submitted the death certificate of the deceased account holder either in original or notarized form along with Annexure ‘O’ duly filled and signed. But complainant no.2 was also required to open a new De-materialised Account in his name only and after the aforesaid process was the joint account held by Late Chandan Kumar Ray and the complainant no.2 and/or any such account already held in the individual name of the complainant no.2 only. But instead of following the aforesaid procedure for effective and legal transfer of shares, the complainant no.2 with ulterior motive and fraudulent intention immediately after the dearth of the said Chandan Kumar Ray, deposited delivery instruction slips duly signed by the joint holders which the complainant no.2 has stated in his letter dated 20.04.2009 was signed by Late Chandan Kumar Ray before his death and without making the op aware about the death of Chandan Kumar Ray, got the shares transferred fraudulently on 15.11.2008 into the joint account held by the complainants.
On 15.11.2008 op had received three delivery instruction slips bearing nos. 3512722, 3512723 and 3512724 of de-materialised account no. 10343296 held jointly in the name late Chandan Kumar Ray and the complainant no.2. The delivery instruction slips were duly signed by the joint holders and the same were processed by the op in the normal course of business.
On 19.01.2009 said Smt. Utsa Ray widow of late Chandan Kumar Ray came to the office of the op and submitted a letter dated 19.01.2009 informing that her husband expired on 11.11.2008 along with the notarized copy of the death certificate and copy of the general diary dated 06.01.2009 lodged with the Narkeldanga Police Station, Kolkata. In the said letter 19.01.2009 it was stated that documents relating to the de-materialised account of her deceased husband among others were lost and that she has lodged a complaint with the police in this regard and it was also stated that since she is the only legal heiress of late Chandan Kumar Ray, first holder of the de-materialised account No. 10343296 and as such she is entitled to 50 percentof the shares lying in the said de-materialised account No. 10343296 which ought to be transferred to her.
Op came to know about the death of Chandan Kumar Ray only on 19.01.2009 through the deceased’s widow Smt Utsa Ray and thereafter, on investigation, op found that the aforesaid transfers were illegally done at the instance of the complainants and to prevent further illegal transfer and/or actions, op immediately froze only the illegally transferred shares in de-materialised account held jointly by the complainants vide Client Id No. 10261104 and reported the matter to the NSDL seeking its instruction and advice in the matter and thereafter the instruction of NSDL was duly followed by the op. But fact remains the balance shares which were not transferred from de-materialised account vide Client Id. No. 10343296 were not frozen and the complainants at every point of time were free to deal with those shares as per their desire and the op tried contacting the complainants regarding this matter several times but not received any response from the complainants, the op on 20.01.2009 effected ISIN/Quantity wise freeze of only those shares lying in de-materialised account no. 10261104 which were fraudulently transferred from the de-materialised account no. 10343296 at the instance of the complainants and to prevent further illegal transaction with respect to such shares so transferred and thereafter op by its letter dated 06.02.2009 informed the NSDL about the aforesaid happenings and the NSDL through its letters dated 11.01.2009 and 12.02.2009 requested the op to provide copies of some documents and also to provide transaction statement to Smt. Utsa Ray which the op dully adhered to and through its letters dated 18.02.2009 forwarded the documents requested by the NSDL.
Thereafter op made several attempts to rectify the above fraudulent and illegal transfer of shares by calling the complainants to provide clarifications but no response was ever received from the complainants. Accordingly op by its letter dated 01.04.2009 informed the complainants about the claim of the said Smt. Utsa Ray over the shares underlying in the de-materialised account No. 10343296 and that the list of shares mentioned have been frozen by the op.
In response of ops’ letter dated 01.04.2009, complainant no.2 responded for the first time and the statements in the said letter are false and incorrect and the same are denied and disputed by the op. However in the said letter, complainant no.2 had without meaning thereto assured the op that all necessary formalities will be complied with and after that the op through its letters dated 23.04.2009 and 27.04.2009 informed the NSDL that the transaction statement has been forwarded to Smt. Utsa Ray and sought the NSDL’s advice as to the future course of action.
Thereafter op received a letter dated 29.04.2009 from the NSDL, wherein the op was directed to obtain the necessary succession certificate from the complainants also in case they have any claim on the shares which were lying in the de-materialised account No. 10343296 and accordingly op received a letter dated 23.04.2009 from the complainant no.1 requesting for detailed report regarding freezing of the aforesaid shares which was replied to by the op by its letter dated 09.05.2009 and in reply op received a letter dated 25.05.2009 from the complainant no.1 wherein the complainant no.1 has made false, frivolous and baseless allegations against the op. The said letter was forwarded to the NSDL by the op’s letter dated 01.06.2009 asking for suitable guidelines from the NSDL in the matter and by a letter dated 04.06.2009, the NSDL advised the op to refer to its earlier letter dated 29.04.2009 and the same was duly convened to the complainants by the op through its two letters dated 08.06.2009 addressed to the complainants individually.
Thereafter various correspondences were exchanged between the parties regarding the aforesaid matter between the parties. It is pertinent to mention here that the statements made therein are all false and baseless and/or allegations made against the op by the complainants and denied all the material allegations.
Fact remains that Smt. Utsa Ray through her letter dated 02.06.2010 submitted duly notarized copy of the Succession Certificate as demanded by the op along with copies of other relevant documents and requested the op to do the needful. Op forwarded the same to the NSDL seeking further guideline in the matter through its letter dated 16.07.2010 which was replied by the NSDL through its letter dated 23.07.2010 and op communicated the same to the complainants and Smt. Utsa Ray through its letters dated 12.08.2010 and after receiving the aforesaid letter dated 12.08.2010, complainants through their advocate’s letter dated 26.08.2010 called upon the op to furnish copy of the Succession Certificate submitted by Utsa Ray which the op duly forwarded to the complainants by its letter dated 01.09.2010 and thereafter op received a letter dated 30.09.2010 from the Advocate of the complainants. The complainants have admitted to have received the op’s aforesaid letter dated 01.09.2010 along with its enclosure and made some vague and frivolous statements therein which is denied and disputed by the op and to avoid any sort of future obligation.
Subsequently op wrote a letter dated 14.01.2011 to the said Smt. Utsa Ray asking her to inform the op about the manner in which the odd lot shares were to be distributed between her and the complainant No.2 which belonged to the BO A/C No. 10343296 held by her husband, since deceased and the complainant no.2 jointly. And Smt Utsa Ray by her letter dated 05.02.2011 replied to the op’s aforesaid letter and requested the op to transfer her any share from the said odd lot shares and to settle the matter as early as possible. Then correspondences were exchanged between the op, the NSDL and Smt. Utsa Ray being letters dated 14.02.2011, 04.03.2011, 10.03.2011 and 26.04.2011 and the op as per the advice received from the NSDL, through its letter dated 29.04.2011 informed the complainants that 50 percentof the securities held in the BO Account No. 10343296 before the aforesaid fraudulent transfer done at the instance of the complainants have been transferred to Smt. Utsa Ray and the lot of shares have been kept as blocked as the complainants had not responded about sharing of the same that produced to the aforesaid op but denied all allegations and submitted that the entire complaint is false and fabricated and it is specifically mentioned by the op that complainants fraudulently knowing fully well of the death of Chandan Kumar Ray falsely submitted that declaration of Chandan Kumar Ray and it is mandatory that the said shares are legally heirs of Chandan Kumar Ray. But the op always acted as per the advice received from the NSDL and accordingly, transferred 50 percentof shares that were initially jointly held in the De-materialised account vide Client Id No. 10343296 to Smt. Utsa Ray and also de-freezed the remaining 50 percentshares except the odd lot shares. So, op cannot be held liable if the NSDL has replied to the letters sent by the complainants or not. Op did not act illegally, arbitrarily or did not anyway perform in their decision which is negligent and deficient in manner for any complaint or grievance but that had not been done. In fact in all occasion complainants never turned up for any discussion though op waited for considerable time and op vide its letter dated 01.04.2009 communicated the complainant no.2 in writing. However it was frozen on and from 20.01.2009. Fact remains that the statement of account was generated directly from the back office system of the op which could not be sent by the op. So the complainants are not entitled to any compensation for mental harassment and in fact the entire complaint is fictitious and accordingly op prayed for dismissal of this case.
Decision with reasons
After comparative study of the complaint and the written version and also considering the material evidences on record including the argument as advanced by the Ld. Lawyers of both the parties, it is found that it is admitted fact that complainant no.2 Tarun Roy and Chandan Kumar Ray since deceased had a DEMAT A/c/Client Id. No. 10343296 jointly with the op East India Securities Ltd. and said DEMAT A/c was jointly held by Chandan Kumar Ray since deceased and complainant No.2.
It is also admitted fact that complainant no.1 Asesh Kr. Ray and complainant no.2 Tarun Roy also held a separate DEMAT A/C being BO. A/C/Client Id. No. 10261104 with the op.
It is also admitted fact that Chandan Kumar Ray died on 11.11.2008. Undisputed fact is that in the name of Chandan Kumar Ray and Tarun Roy, there are same shares which were purchased in the name of Chandan Kumar Ray and Tarun Roy and as per SEBI’s Rules any company cannot prohibit joint share holder nor does it place any registration on the number of joint holders. But as per Ministry of Finance, in its circular No. 11/AC/75 dated 12.02.1976 has imposed a restriction of not more than three joint holders. But as per SEBI’s Rules, joint holder is a member of a company. But the article of association has confirmed that it is only the first name shares, in the record as shareholders and company deals with such first name of joint holder to the exclusion of others and in respect of any shareholders jointly company shall not be bound to issue more than one certificate and delivery of the certificate to one of several joint holders and in all cases when shares certificate is issued in the joint holders’ name, in that case, the first name shareholder is treated as member of the company.
So, considering that principle it is clear that Chandan Kumar Ray was the first name shareholder and Tarun Roy was second name shareholder. So, all the share certificates were issued in the name of Chandan Kumar Ray, though Tarun Roy is a co or jointholders of the share certificate.
Peculiar factor is that admittedly Chandan Kumar Ray died on 11.11.2008 but joint holder Tarun Roy mentioning Chandan Kumar Ray as filed delivery instruction slip under normal course of business with op without following the prescribed procedure as laid down by NSDL in this regard. On the death of one of the joinholders of the De-materialised Account, the surviving holder Tarun Roy, complainant no.2 should have intimated the op the date of death of Chandan Kumar Ray immediately on his demise and to submit Chandan Kumar Ray’s death certificate and also to disclose his legal heirs. But without disclosing that fact, complainant no.2 Tarun Roy with ulterior motive and fraudulent intention deposited the delivery instruction slip duly signed by Chandan Kumar Ray and himself (Complainant No.2) without making the op aware of the death of Chandan Kumar Ray and got the shares transferred on 15.11.2008 in the joint account held by the complainants. This fact is not denied by the complainants, rather from the delivery sheet 21, 22 & 23, it is clear that Tarun Roy deposited delivery instruction slip duly signed by Chandan Kumar Ray and Tarun Roy with date of 15.11.2008 and managed to transfer the entire shares of the DEMAT A/C of Chandan Kumar Ray and Tarun Roy in the account of Asesh Kumar Ray and Tarun Roy.
Fact remains that those delivery instruction slips bear the signatures of Chandan Kumar Ray and Tarun Roy with a date of 15.11.2008. But truth is that on the very date Chandan Kumar Ray was not in the world because he died already on 11.11.2008 that means Tarun Roy managed to procure some signatures on blank papers prior to death of Chandan Kumar Ray and thereafter submitted it on the death of Chandan Kumar Ray by suppressing the fact that Chandan Kumar Ray died on 11.11.2008 and also suppressed that Chandan Kumar Ray died leaving behind his widow (wife) Utsa Ray.
So, considering that fact, it is clear that by practicing fraud upon the op Tarun Roy managed to transfer all the shares in the DEMAT A/C of Chandan Kumar Ray and Tarun Roy being BO A/C No./Client Id. No. 10261104 of present complainants from DEMAT A/C No. 103432296. So, fraud practice made by Tarun Roy is well proved and truth is that Chandan Kumar Ray did not file such delivery slip by signing on 15.11.2008 because prior to that on 11.11.2008 Chandan Kumar Ray died. So, the entire performance of the complainant is no doubt an act of a fraudstar and practicing fraud they managed to transfer the entire share of Chandan Kumar Ray and Tarun Roy of Client Id. No. 10343296 to another DEMAT A/C No./Client Id. No. 10261104 of the complainant illegally and by practicing fraud. It is also proved from the entire documents filed by the ops that Chandan Kumar Ray died leaving behind his legally married wife Utsa Ray, the widow and invariably on the death of Chandan Kumar Ray, Utsa Ray became the sharer of the joint shares against Client Id. No. 10261104.
So, the ulterior motive on the part of the Tarun Roy and Asesh Ray is well proved and no doubt Tarun Roy and Asesh Ray suppressed the fact that said Chandan Kumar Ray expired on 11.11.2008.
It is also proved from the documents that ops came to learn about the death of Chandan Kumar Ray in the month of January, 2009 when wife of deceased Chandan Kumar Ray that is Smt. Utsa Ray submitted a complaint stating that she is legally married wife of Chandan Kumar Ray and she is entitled to inherit the shares of Chandan Kumar Ray in respect of that DEMAT A/C No. 10261104. Thereafter investigation was held by the op and after investigation, op came to learn that aforesaid transfer of shares were illegally transferred the shares into the De-materialised held by the complainant vide DEMAT A/C No. 10261104 and matter was reported to the NSDL seeking their instruction.
So, considering the above fact, it is clear that on the basis of the complaint made by Utsa Ray the wife of Chandan Kumar Ray, shares were actually freezed on 20.01.2009 and as per provision of the NSDL on the basis of the complaint of any sharers (Client) DEMAT A/C may be freezed and considering the whole aspect, it is clear that in that situation there was no other alternative but to freeze the entire account on the ground if it would not be freezed in that case further transfer may be made by the complainant and most interesting factor is that the entire transfer as made by Tarun Roy and Asesh Ray in respect of the DEMAT A/C of Chandan Kumar Ray and Tarun Roy is illegal. But rule is that if Tarun Roy had his any intention to get his separate his 50 percentout of the joint DEMAT A/C of Chandan Kumar Ray and Tarun Roy in that case as per provision of NSDL, complainant no.2 may file such application before the authority in support of his 50 percentshare of the said DEMAT A/C held in the name of Chandan Kumar Ray and Tarun Roy and separate DEMAT A/C may be allotted to complainant no.2 and that was the procedure and that procedure has not been followed by the complainant.
So in all respect the complainants are fraudstar and they only to deceive the legally married wife of Chandan Kumar Ray managed to transfer the entire shares of DEMAT A/C in the name of Chandan Kumar Ray and Tarun Roy even on the death of Chandan Kumar Ray by filing such application for depositing delivery instruction on 15.11.2008 when Chandan Kumar Ray died already but his signature is there. That means Tarun Roy practiced fraud upon the op secured dead man’s signatures may be prior to death of Chandan Kumar Ray and submitted it and all those delivery instructions as filed by Tarun Roy for transferring the shares of Chandan Kumar Ray and Tarun Roy in the account of Asesh Ray and Tarun Roy is no doubt a fraud practice and no doubt complainants did not disclose the date of death of Chandan Kumar Ray prior to 15.11.2008 or on that date or after that. Everything was learnt by the op when Chandan Kumar Ray’s wife Utsa Ray filed such application on 19.01.2009.
Subsequently on 18.02.2009 op sent the details of the shares held by Chandan Kumar Ray and Tarun Roy DEMAT A/C No. 10343296, thereafter Utsa Ray submitted all necessary papers and ultimately complainants were informed by the op but as because no explanation was made by the complainants their DEMAT A/C was freezed in respect of shares in DEMAT A/C No. 10343296 which was included in the A/C No. 10261104 Asesh Ray and Tarun Roy and by that letter dated 01.04.2009, op reported which shares were freezed and considering that letters and documents, it is clear that against DEMAT A/C No. 10261104 in the name of Asesh Ray and Tarun Roy all the shares were not freezed. Only the shares which stood in the name of Chandan Kumar Ray and Tarun Roy against DEMAT A/C No. 10343296.
So, considering that fact, it is clear that the entire shares of DEMAT A/C No. 10261104 was not freezed. But only fraudulently transferred shares made by the complainant no.2 from the account of DEMAT No. 10343296 was freezed. So, the complainant’s allegation is that the entire DEMAT A/C No. 10261104 is freeze is completely false and fabricated. Only fraudulently transfer of shares as specifically mentioned in letter dated 01.04.2009 by the op to the complainant was freezed and truth is that in respect of fraudulent transfer no doubt the freezing was justified in view of the fact that the said transfer was made by the complainant on the death of Chandan Kumar Ray (date of death 11.11.2008) whereas delivery instruction slip was submitted on 15.11.2008 when Chandan Kumar Ray was not in this world, that means only to grab the shares of Chandan Kumar Ray, complainant managed to file such application for transfer of all the shares of DEMAT A/C No. 10343296 to the account of the present complainant against DEMAT A/C No. 10261104 only for the purpose of deceiving the legally married wife of Chandan Kumar Ray and that was filed showing the signature of Chandan Kumar Ray dated 15.11.2008 that means fraud practice had been made by the complainants for which on the basis of the complaint of Utsa Ray, the legally married wife of Chandan Kumar Ray, those shares as stood in the name of Chandan Kumar Ray and Tarun Roy against DEMAT A/C No. 10343296 was freezed but no other shares against DEMAT A/C No. 10261104 was freezed and for which it is clear that complainants have filed a false case before this Forum bringing false allegations not only that in the complaint, they have not stated or whispered that delivery instruction slip was filed by them knowing fully well that Chandan Kumar Ray died on 11.11.2008. They did not explain how after the death of Chandan Kumar Ray, such a delivery instruction slip with signature of Chandan Kumar Ray was filed.
Another factor is that after getting complaint from Smt. Utsa Ray, the legally married wife of Chandan Kumar Ray on 19.01.2009, op sent letter to the complainants to give explanation but complainants did not appear before the op to discuss the matter or to pray for an apology for their misconduct and fraud practice. When the freezing was made in respect of the shares held by Chandan Kumar Ray and Tarun Roy against DEMAT A/C No. 10343296 only which was transferred against DEMAT A/C No. of the present complaint being DEMAT A/C No. 10261104. So, under any circumstances, it cannot be stated that op illegally acted or op freezed the entire DEMAT A/C No. 10261104.
In the light of the above observation we are convinced to hold that the present complainants the fraud stars filed this complaint after practicing fraud upon the op even after the death of Chandan Kumar Ray on 11.11.2008 and by filing a delivery instruction slip on 15.11.2008 with signature of dead person Chandan Kumar Ray without disclosing the fact that Chandan Kumar Ray died leaving behind his widow wife Smt. Utsa Ray.
Truth is that complainants managed to transfer those shares of Chandan Kumar Ray and Tarun Roy against DEMAT A/C No. 10343296 on 15.11.2008 but till receipt of complaint of Utsa Ray, wife of Chandan Kumar Ray on 19.01.2009 and the matter was not disclosed by the complainants to the op that they committed offence/criminal offence by practicing fraud they managed to transfer the shares of Chandan Kumar Ray against DEMAT A/C No. 10343296 suppressing the death of Chandan Kumar Ray and also the existence of his legally married widow wife Smt. Utsa Ray and further procuring a dead man’s signature in such delivery instruction slip. So, in all respect on the basis of the complaint of Utsa Ray, it was freezed after giving all the chance to the complainants to explain it.
In the above circumstances, we are convinced to hold that when the complaint of Utsa Ray was properly decided by the NSDL and Chandan Kumar Ray’s share was transferred in favour of his wife, the freeze order was withdrawn.
But most peculiar factor is that if actually complainants have their intention to sell their shares from the DEMAT A/c, they may file such application before the op but they did not file such application for selling their shares to someother persons at a high rate. It simply proves that the complainants are fraud stars, they had their no moral courage to pray for selling their shares which was not freezed because they are avoiding the op because they did not appear before op because they may be arrested and ultimately they filed this complaint with false and vexatious allegation against the ops.
On the contrary the entire materials as produced by the op substantiate that fraud practice had been done by the complainant for transferring the shares against the DEMAT A/C No. 10343296 which stood in the name of Chandan Kumar Ray and Tarun Roy after the death of Chandan Kumar Ray but procuring a dead man’s signature in the delivery instruction slip. So we are convinced that they are not the consumer. But they are well known fraud stars in the society and they should be arrested by filing such complaint against them by the ops and to send them to jail at first. Fact remains that the entire complaint is false, fraudulent, and vexatious and it was filed by the fraud stars like the present complainants.
In the result, the complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed on contest against the ops.
Both the complainants are directed to pay penal cost of Rs. 10,000/- each for adopting unfair practice and also for practicing fraud upon the op and for filing vexatious, false and fabricated case against the ops and also for deceiving their family BOUMA, the legally married wife of Chandan Kumar Ray in such a manner and said penal cost shall be paid by each complainant within 15 days from the date of this order failing which for non-compliance of the same, penal action u/s 27 of C.P. Act 1986 shall be started for which they may be sent to jail or fine or penalty may be further imposed.
