Order No. 20 dt. 17/10/2017
The case of the complainant in brief is that the complainant is an account holder of the o.p. company and she was trading with Gariahat Branch. The complainant was receiving hard copy from the branch and also information received over phone from the Manager of o.p. and there was no difficulty faced by the complainant for the service. Subsequently the account of the complainant was transferred to IIFL to Mumbai without her consent. The complainant took up the matter with the company, but no step was taken by o.p., then the complainant made a complaint before the National Stock Exchange (NSE) where the company did not give any reply, but after long period of time o.p. could not produce any evidence either letter or approval in writing given for the transfer. The NSE mechanism for refund of STD charges and accordingly no relief for monetary compensation was provided to the complainant. In view of the said fact the complainant filed this case praying for direction upon the o.p. for refund of the STD charges and also for compensation of Rs.50,000/- for adopting trade practice and for compensation of 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 o.p. is a trading and clearing member of NSE in capital market and registered with SEBI. The complainant is intraday trader who trades, buy, sale and resale daily in the stock exchange on regular basis. She is listed as a trader in stock exchange. Share market is based on speculative trade and contingency. The complainant has opened a trading account and Dmat account with o.p. for executing trading in capital market. On account of internal restructure the complainant was provided with the facility of trading through the centralized dedicated dealing desk. The same was duly informed to her which she agreed and continued to trade in her account for last two years. She raised no issue. The complainant also approached the Hon’ble NSE and filed arbitration case no.AM/CM/K-0068/2013 and as per the guidelines laid down in the member client agreement signed by her at the time of opening of her account. The claim of the complainant was dismissed by the sole arbitrator and this Forum has no jurisdiction to entertain the case and as such, o.p. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant was engaged in share trading business?
- Whether this Forum has jurisdiction to entertain this case?
- Whether there was any deficiency in service on the part of o.ps.?
- 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.
On behalf of the complainant her husband submitted argument and he stated that without the permission of the complainant the account of the complainant was transferred and because of such arbitrary act on the part of o.p. the complainant suffered lot. On the basis of the said fact the complainant prayed for compensation.
Ld. lawyer for the o.p. argued that o.p. is a trading and clearing member of NSE in capital market and registered with SEBI. The complainant is intraday trader who trades, buy, sale and resale daily in the stock exchange on regular basis. She is listed as a trader in stock exchange. Share market is based on speculative trade and contingency. The complainant has opened a trading account and Dmat account with o.p. for executing trading in capital market. On account of internal restructure the complainant was provided with the facility of trading through the centralized dedicated dealing desk. The same was duly informed to her which she agreed and continued to trade in her account for last two years. She raised no issue. The complainant also approached the Hon’ble NSE and filed arbitration case no.AM/CM/K-0068/2013 and as per the guidelines laid down in the member client agreement signed by her at the time of opening of her account. The claim of the complainant was dismissed by the sole arbitrator and this Forum has no jurisdiction to entertain the case and as such, o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant was doing share trading business and in doing such trade there is every possibility of earning profit and loss while trading in the capital market. The complainant is a share trader and she is not a consumer. It is also found from the materials on record that the complainant’s husband is in the habit of filing cases on the self same ground at different Fora making false allegation against the o.p. and everywhere the husband of the complainant lodged those cases and it is an another attempt to misuse this Forum by suppressing the fact that she suffered financial loss due to the wrong procedure adopted by o.p. It appears from the materials on record that the complainant approached before Hon’ble NSE and filed arbitration case no.AM/CM/K-0068/2013 and as per the guidelines laid down in the member client agreement signed by her at the time of opening her account. It is also found that the ld. sole arbitrator dismissed the complainant’s claim. Apart from the said fact we can rely on the decision as reported in II (2012) CPJ 181 (NC) wherein it was held that share trader is not a consumer as per the provisions laid down in the C.P. Act. In view of the facts and circumstances as stated above, we hold that the complainant being a share trader cannot have any relief by filing this case before this Forum, particularly when the sole arbitrator appointed by NSE rejected the contention of the complainant. Therefore we hold that the case filed by the complainant is a misconceived one and 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.734/2013 is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
