Order No. 25 dt. 09/08/2017
The case of the complainant in brief is that the complainant is a retired person and in order to return from his deposit he wanted to invest in share trading and for that reason he contacted the o.p. During the transaction of share trading the complainant noticed that o.p. made unfair trade practice and failed to fulfill the promise rendered by them. It was stated that o.p. is not allowing the intraday trading and not giving any confirmation regarding the said trading. The o.p. closed the trading on and from 1.1.11 without giving a notice. Because of such harassment and suffering imposed by o.p. the complainant suffered mental agony for which the complainant filed this case praying for refund of interest charged on his account for the last 20 months and also compensation of Rs.30,000/- and Rs.50,000/- for mental agony.
The o.p. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant filed this case in this Forum as well as other District Forum on the basis of same cause of action and some of those case have been decided by the District Forum. It was stated that the complainant has traded regularly in his account without any hindrance and o.p. became surprised to know how the complainant suffered loss. The o.p. also denied that they failed to follow the order passed by Ld. Forum. The claim of the complainant is totally passed on surmise and conjecture. It was further stated that the complainant is a intraday trader who trades buy and sell daily in the stock market on regular basis and not a consumer, he is listed as a trader in stock exchange. Share market is based on speculative trade and contingency having no carrying of profit and loss. The C.P. Act is not for maintaining or compensating speculative transactions or losses. It was further stated that share trade is guided by the technical and legal guidelines of SEBI, RBI, Stock Exchange and abided by their laws, rules and guidelines. NSI has sits arbitral tribunal and arbitral appellate tribunal to settle such dispute. Since the law as envisaged in C.P. Code does not permit to resolve such dispute, therefore the complainant’s case is to be dismissed.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant is a regular share trader?
- Was there any unfair trade practice adopted by o.p./
- Whether the grievance of the complainant was set at rest by this case earlier filed by the complainant?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
The complainant argued the case and he stated that in order to get good return from the money invested in share the complainant made contact with o.p. The o.p. did not allow the complainant for intra trading. The o.p. closed the trading on and from 1.1.11 without any notice served upon the complainant for which the complainant had lodged a case before CDF 24 parganas Alipore with the direction to restore the previous running position, but o.p. did not comply the said order. Apart from the said fact the complainant also stated that o.p. frequently sale of share without notice giving to the complainant for which the complainant suffered financial loss. On the basis of the said fact the complainant filed this case praying for refund of the interest charged on his account for the last 20 months and also compensation.
Ld. lawyer for the o.p. argued that the allegation leveled against the o.p. were all set at rest by virtue of and order complied by o.p. It was further stated that the complainant is in the habit of filing cases one after another in different District Fora on the basis of self same cause of action making false allegation against the o.p. So far as the allegation against the o.p. is concerned it was stated by o.p. that the complainant is a intraday trader who trades buy and sell daily in the stock market and the price of the share fluctuates depending upon the market condition. The share market is based on speculative trade and contingency having no guaranty of profit and loss. The dispute regarding the discharge of function of o.p. could have been raised before the arbitral tribunal and o.p. has to do the work as per the technical and legal guidelines of SEBI, RBI, Stock Exchange, etc. On the basis of the said fact o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant is a share trader. Nowhere in the four corners of the complaint petition it was stated by the complainant that he is engaged in share trading business for the purpose of his livelihood. In this respect we can rely on a decision as reported in 2017(1) CPR 153 (NC) wherein it was held that as per Sec 2(1)(d) of C.P. Act the person doing in share trading and the allegation of non refund of amount after suspension of trading and nowhere in the petition of complaint the complainant pleaded that the complainant was carrying on activities for earning his livelihood by means of self employment, as such Consumer Fora has no jurisdiction to entertain complaint as complainant does not fall within the purview of consumer under C.P. Act. It is also found from the materials on record that the complainant is in the habit of filing such type of cases before different Fora and the some of the Fora entertained the prayer of the complainant and o.p. complied the direction of the Forum passed against the o.p. On the basis of the self same cause of action the complainant filed this case. It is also found from the materials on record as well as judgment as reported in 2017(3) CPR 167 (NC) wherein it was held by Hon’ble National Commission that one cannot take Consumer Fora for granted and pursue cases as per one’s own sweet will and accordingly the revisional application filed by the complainant was dismissed. It is relevant to mention here that in the said revision application the present complainant was the applicant of the said revisional application. In another judgment as reported in 2017(3) CPR 172 (NC) the self same complainant whose case is being considered by us and also filed another revisional application before Hon’ble National Commission and the Hon’ble National Commission dismissed the revision by holding that non delivery of speed post due to vague address is not a deficiency in service. It is also found from the materials on record that the allegation levelled by the complainant was set at rest by o.p. in compliance with the order passed by another Forum. On the basis of the said fact the complainant filed this case. On the basis of the said fact and the background of the case we hold that the complainant is not a consumer as per C.P. Act and already the matter was set at rest as being raised by the complainant again, the complainant by virtue of taking the opportunity of this Forum made vague allegation and filed this case which has been deprecated by Hon’ble National Commission by holding in the judgment 2017(3) CPR 167 (NC) that it must be strongly emphasized that one cannot take Consumer Fora for granted and pursue cases as per one’s own sweet will. While Consumer Fora across the country are reeling under tremendous work load in order to enforce discipline, they are fully justified to ruthlessly deal with casual litigants. Here in this case, we find that the complainant is in the habit of filing unnecessary cases against the o.p. and though o.p. has to act as per the guideline of SEBI, RBI, Stock Exchange, etc. but the complainant without making any allegation against the o.p. to those authorities filed this case unnecessarily which has got no cogent reason whatsoever to give any relief to the complainant and accordingly we hold that the complainant will not be entitled to get any relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.179/2013 is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
