Kerala

StateCommission

A/15/952

ZEENATH SALIM - Complainant(s)

Versus

ICICI SECURITIES LTD - Opp.Party(s)

NARAYAN R

08 Nov 2018

ORDER

 

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,  SISUVIHAR LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO. 952/2015

 

JUDGMENT DATED: 08.11.2018

 

(Appeal filed against the order in CC No.264/2014 on the file of CDRF, Ernakulam order dated 30.06.2015)

 

PRESENT:

 

SRI. T.S.P MOOSATH	:	JUDICIAL MEMBER
SRI. RANJIT. R	:	MEMBER

 

APPELLANTS:

 

1.	Zeenath Salim, House No.44/2641D, Kalooparambilm House, Sreenagar Road, Kaloor, Kochi- 682 017.

 

(by Adv. Narayan R.)

 

VS

 

RESPONDENTS:

 

1.	ICICI Securities Ltd., Desabhimani Junction, Kaloor, Kochi – 682 017.
2.	The Manager, ICICI Securities Ltd., Desabhimani Junction, Kaloor, Kochi – 682 017.

 

(by Adv. B.A. Krishnakumar)

 

 

 

JUDGEMENT

 

 

SRI. RANJIT  R.          :        MEMBER

 

 

          Appeal is filed by the complainant in CC No.264/2014 on the file of Consumer Disputes Redressal Forum, Ernakulam, in short, District Forum against the order of the forum which dismissed the complaint holding that the complainant is not a consumer and also that the complaint is barred by limitation.

          Short facts necessary for the disposal of the appeal is that the complainant joined the share trading with the opposite party by opening an account on 20.11.2010.  As per the demand of the opposite party an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) was deposited as advance for share trading which started on 16.10.2010.  An amount of Rs.5,7770.24/- (Rupees Five Thousand Seven Hundred and Seventy and Twenty Four paise) was deposited by the opposite party from the account of complainant due to the non-payment of the amount.  Complainant is entitled to get back Rs.7,961/- (Rupees Seven Thousand Nine Hundred and Sixty One) which includes 12% interest from the opposite party which was collected towards charges for the late payment.  The market value of the shares held in the account of the complainant as on 11.08.2013 was only Rs.15,878/- (Rupees Fifteen Thousand Eight Hundred and Seventy Eight) whereas complainant has invested Rs.1,50,000/- (Rupees One Lakh Fifty Thousand).  The diminution of the amount in her account is a deficiency of service on the part of the opposite party and hence she filed complaint to get Rs.10,000/- (Rupees Ten Thousand) towards compensation and Rs.2,800/- (Rupees Two Thousand Eight Hundred) as cost.

          The opposite party filed version contenting that the complainant does not raise any consumer dispute and the complainant is not a consumer as defined under the Consumer Protection Act.  The share transaction involved in the present complaint is a commercial transaction carried purely on commercial purpose to gain profit.  Complainant is doing share trading through her husband who had account with the opposite party.  Since trading of share is a commercial transaction, the complaint before the forum is not maintainable.  Further contention is that transaction involved pertains to the year 2010-2011 and the complaint filed after the lapse of two years is barred by limitation.  The husband of the complainant was actively trading in delivery as “Buy Today, Sell Tomorrow” (BTST) using T+5 facility.  Loss sustained by the complainant in share trading is a speculative trading which was done by her husband and hence complaint is not maintainable before this consumer fora.  There was no deficiency of service on their part and prayed for dismissal of the complaint.

          The lower forum heard the question on maintainability first and it concluded that the share transaction made by complainant with the opposite party is essentially a commercial activity to earn profit and therefore complainant cannot be said to be a consumer as defined under section 2(1)(d) of the Consumer Protection Act.  The forum also held that the complaint filed in April 2014 for the cause of action which arose on 21.11.2011 is barred by limitation under section 24-A of Consumer Protection Act.  The lower forum on such conclusion has passed the impugned order which is under challenge in this appeal.

          Heard both parties. 

          Learned Counsel of the appellant urged that complainant who deposited an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) with the opposite party believed their words, to earn profit cannot be termed as a trade or commercial activity.  Complainant lost her savings of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) by depositing the same with the opposite party.  The said activity cannot be termed as commercial activity when financial and other banking services are included in the definition of services under section 2(o) under Consumer Protection Act.   On the other hand, learned counsel for the respondent argued that transaction involved in the complaint is a commercial transaction to gain profit.  The complainant has been doing the share trading through her husband, a businessman who had account with the opposite party.  Trading of shares is a commercial transaction and it is not a subject matter coming under the Consumer Protection Act.

          Perusing the complaint, a copy of the same was handed over to us by the learned counsel of the appellant, it is seen that complainant has made the allegations against opposite party that they gave some assurance and allured her to invest money in share trading business for earning profit.  Complainant who had invested her amount in share trading business, which is a speculative business, with a motive to earn profit from the said business is not meant for self-employment but for commercial activity. 

          The main issue to be decided in the case is whether the complaint falls under the definition of consumer as per Consumer Protection Act.  Section 2(1)(d) of Consumer Protection Act read as : “Consumer means any person who – (i)  buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or   (ii)  hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services 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 services for any commercial purpose”.

          From the above it is clear that a person who hires the services for any commercial purpose or the person who is engaged in commercial activity does not fall under the definition of consumer and cannot be said to be a consumer as per section 2(1)(d) of the Consumer Protection Act.   The explanation of section 2(1)(d) states as follows: “for the purpose of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment”.  In the complaint nowhere it is stated or alleged that she is eking her livelihood by the income from the share trading.  What is stated is that the complainant is investing money in share for earning profit.  Therefore it can be safely concluded that complainant is engaged in commercial activity and does not fall under the definition of consumer as per section 2(1)(d) of Consumer Protection Act, and hence complaint is not maintainable before the consumer forum.

          It is a settled law that the transaction regarding sale and purchase of share which is speculative in nature, and the persons engaged in such transaction cannot be termed as a consumer as defined under Consumer Protection Act.  Learned counsel for the respondent cited a decision of Hon’ble National Commission in V.K. Aggarwal Vs Infosys Technologies Ltd. and others 1 (2013) CPJ 373 (NC) wherein it has been held that sale and purchase of shares are commercial transaction and therefore complainant is not a consumer.  Further Hon’ble National Commission in M/s. Steel City Securities Ltd. Vs Sri. Ramakrishna wherein it is held that since the complainant is trading regularly in trading business it is commercial activity, and hence he would not fall under definition of consumer as per Consumer Protection Act.  Hon’ble Supreme Court of India in Ganapathi Prameshwar Kashi and another Vs Bank of India and another has held that complainant who is trading regularly in share business, which is a commercial activity will not fall under definition of consumer as per Consumer Protection Act.

          The above decisions will apply in the present case as well.  Hence we find that there is no illegality or impropriety in the order of the District Forum to hold that the complainant does not fall under the definition of consumer as provided in section 2(1)(d) of Consumer Protection Act 1996 and hence the consumer complaint filed by her is not maintainable before the consumer forum and is liable to be dismissed.

          We do not find any merit in the appeal and it is liable to be dismissed.  We do so.

          In the result appeal is dismissed. 

          Parties are directed to suffer their respective costs.

 

T.S.P MOOSATH	:	JUDICIAL MEMBER
RANJIT. R	:	MEMBER

 

 

 

 

SL