DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Krishan Kumar Sharma S/o Sh.R.D.Sharma r/o H.No.3212, Sector 23-D, Chandigarh.

…..Complainant

                                      V E R S U S

1.       India Infoline Ltd., having its Registered office at IIFL House, Sun Infotec Park, Plot No.B-23 Thane Industrial Area, Wagle Estate, Thane – 400604, through its Managing Director.

2.       India Infoline Ltd., SCO No.113-114, Sector 34, Chandigarh, through its Branch Manager.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

Argued by: Ms.Nidhi Ayer, Counsel for the complainant.

                     Sh.Kapil Kumar, Counsel for OPs.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Krishan Kumar Sharma, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against India Infoline Ltd. & Anr.- Opposite Parties (hereinafter called the OPs), alleging that he paid an amount of Rs.10,000/- to the OPs on 29.11.2011 through cheque after the opening of the trading and D-Mat account by them. The complainant opened trading and depository account with OPs on 22.11.2011 at the branch office of OP No.1 at Chandigarh and he was allotted the client code ‘kkumar 23’ & demat account vide letter dated 29.11.2011, copy of which is Exhibit A-1. On 8.12.2011 Sh.Keshav Kumar, representative of OP company approached the complainant to collect cheque of Rs.30,000/- and purchase order was given to him for purchasing 50 shares of TCS. The cheque and purchase order were handed over to him vide letter – Exhibit A-2.  It has been contended that the OPs instead of purchasing TCS share informed the complainant through SMS and email regarding unauthorized transaction done in his account in future/option to compete their target and that too without any purchase order of the complainant. The complainant sent a letter dated 16.12.2011 vide Exhibit A-3 to OP No.2 that no purchase order was given to trade in the account either verbally or in writing. Thereafter registered letter dated 11.2.2012 was sent on 13.2.2012 to the OPs regarding refund of Rs.40,000/- with interest and copy of the same is Exhibit A-5. The complainant made a number of requests to the OPs for the refund of the amount deposited by him but the OPs did not pay any attention. The complainant has made a prayer for a direction to the OPs to refund the amount of Rs.40,000/- with interest, apart from making payment of compensation and litigation expenses.

2.                OPs in their written statement have admitted that the complainant opened the trading and Demat Account No.1204470006667910 on 28.11.2011 with OP No.2 for the sale purchase of shares and to keep the shares in demat form. It has been averred that the complainant opened the said account with OPs to earn profits and not for the self employment and he cannot be said to be a consumer. It has been admitted that the trading and depository account was opened with OP No.2 and client code ‘kkumar23’ was allotted to the complainant. It has been stated that the complainant paid a cheque of Rs.30,000/- to OP No.2 at his own for doing sale purchase of shares and not specifically for the purchase of 50 shares of TCS. The alleged letter – Annexure A-2 dated 8.12.2011 is an afterthought falsely created document to mislead the Forum. It has been further stated that the complainant neither made any application for the purchase of 50 shares of TCS in his account nor made any complaint against the OPs before the appropriate Forum since the year 2011 till 2012. It has been further contended that all the details of his transactions were daily made available in his Unique Client ID and mails were sent to him at his email ID and SMS to his mobile number, which he never disputed. In all the mails and SMS, the OPs requested the complainant to send a mail to ‘INFO@5PMAIL.COM’ in case of any discrepancy, before next trading day. However, the complainant never disputed for any transactions. It has been further stated that the share business is highly speculative in nature and it is a fluctuating one and nobody can predict anything for profit and loss earlier and the complainant has filed this complaint before this Forum with the sole purpose to harass the OPs. It has been further stated that the alleged letter Annexure A-3 dated 16.12.2011 was an afterthought falsely created document by the complainant just to create false evidence. It has been further stated that no alleged letter Annexure A-4 dated 11.2.2012 was received by the OPs and furthermore postal receipt shows that the same was addressed at Patel Nagar, Pin Code 110008 of Delhi. It has been further stated that as per Clause No.11 of the agreement, the parties agreed to refer the dispute and differences to arbitration and further as per Clause No.12 of the account opening form, the parties agreed to submit to the exclusive jurisdiction of the courts in Mumbai, therefore, this Forum has no jurisdiction.

3.                The parties led evidence in support of their contentions.

4.                We have gone through the evidence on record, written submissions of the parties and heard the arguments addressed by the learned Counsel for OPs No.1 and 2.  On 7.12.2012, the case was fixed for arguments but none appeared for addressing the arguments on behalf of complainant and the arguments on behalf of OPs No.1 and 2 were heard. However, after the case was adjourned, Ms.Nidhi Ayer, Counsel for the complainant appeared and she was permitted to file written arguments within three days and she filed the written arguments on 11.12.2012.

5.                It has been contended on behalf of complainant that the complainant availed the services of the OPs by paying an amount of Rs.10,000/- through cheque on 29.11.2011. The demat account of the complainant was opened by the OPs and the intimation of the opening of the trade and depository account to the complainant is Exhibit A-1. It has also been contended that on 8.12.2011 one of the representatives of the OPs approached the complainant to collect the cheque for the amount of Rs.30,000/- and purchase order, which was handed over to him for purchasing 50 share of TCS and the copy of the purchase order is Exhibit A-2. It has been also argued that the OPs arbitrarily and unfairly inspite of verbal and written instructions of the complainant informed the complainant through SMS and email regarding the unauthorized transaction done in the account of the complainant. It was only on 8.12.2011, the complainant came to know about the unauthorized and unlawful transaction by the OP in his account.  The complainant also sent letters, copies of which are Exhibits A-3 and A-4 to the OPs and they were asked to refund the amount of Rs.40,000/-. It has been contended on behalf of complainant that he has every right to claim the amount of Rs.40,000/- from the OPs along with interest and compensation because the OPs were having no right whatsoever to carry on the transaction at the back of the complainant.

6.                We have carefully considered the above arguments. The first material question that arises for consideration is whether the complainant is a consumer as defined under Section 2(1)(d)(ii) or not. Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 reads as under :-

          “2(1)(d) (ii) “consumer” means any person who, --

(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 person who avails of such services for any commercial purpose].

[Explanation – 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 purposes of earning his livelihood by means of self- employment;]”

In the instant case, the OPs have produced a copy of the application form – Exhibit R-1 signed by the complainant which shows that he is in Government service. The very fact that the complainant opened a trading and depository account with the OPs shows that he wanted to indulge in share trading, which is a commercial transaction for earning huge profits. Though it has been contended by the complainant that he availed the services of the OP for his personal upliftment of his livelihood, yet when the complainant is a Government Servant and is employed person, it cannot be stated that he indulged in share trading for the purpose of earning his livelihood by means of self employment. The learned Counsel for the OPs has drawn our attention to Smt.Kanta Vs. The Regional Director, M/s Master Capital Services Ltd. & Ors., Appeal No.327 of 2010 decided by the Hon’ble State Commission, UT, Chandigarh on 13.5.2011, wherein, it was found that since the complainants were doing the sale and purchase of shares for commercial purpose, they were not consumers as per Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The complainants were found to have availed of the services of the OPs for making huge speculative profits by buying and selling the shares and trading in stock market and they were not held to be consumers. In Ashok Dogra Vs. India Bulls Securities Limited II(2010) CPJ  State Commission, Chandigarh 61, which was a case relating to demat account and there was an allegation that the shares were traded by the OP officials without authority and the complaint was dismissed on the ground that the dispute did not fall under the Consumer Protection Act, 1986, the Hon’ble State Commission rejected the contention of the complainant that the investment in shares was done for earning livelihood and it was found that the activity was commercial in nature and the complainant was not proved to be a consumer. In Raghubir Singh Vs. India Bulls Securities Ltd. & Ors., Appeal No.254 of 2009 decided by the Hon’ble State Commission, UT, Chandigarh on 9.10.2009 again it was found that large scale of sale and purchase of shares has been done and the activity was definitely commercial in nature and the complainant was not a consumer as defined under Consumer Protection Act, 1986. In Rattan Lal Vs. Branch Manager, India IFCO Line Limited & Ors. First Appeal No.1579 of 2009 decided by the Hon’ble State Commission, Haryana, Panchkula on 19.8.2011, where the complainant was having a demat account and was dealing in sale and purchase of shares through the respondent No.1, attention was drawn to the earlier case Kamal Raj Singla Vs. M/s India Inforline Ltd. and another, First Appeal No.1012 of 2010 decided on 22.7.2011, wherein, it was established that the complainant was a salaried person and was an employee and had opened and done transaction through the demat account for earning huge profit, the activity being commercial in nature, the complainant could not be termed as ‘consumer’ as defined under the Consumer Protection Act, 1986. In Sushila Agrawal Vs. I.T.C.Agrotech Ltd. & others 1995(1) CPC NC 63, where there was a complaint relating to non-issue of certain debentures and shares, it was held that such dispute does not fall within the purview of the Consumer Protection Act, 1986. In the instant case also, after taking into consideration the facts and circumstances of the case, we find that the dispute regarding shares falls within the purview of Civil Courts and the complainant does not fall within the purview of Consumer Protection Act, 1986.

7.                Even if the complainant is assumed to be a consumer, still the allegations leveled by him against the OPs are not proved. The OPs have denied the receipts of the letter – Exhibits A-2 to A-4 allegedly sent by the complainant to them. Pertinently the letters Exhibits A-2 and A-3 are not supported by any receipt / postal receipt, which could show that the same were sent to / received by the OPs. So far as the letter dated 11.2.2012 – Exhibit A-4 is concerned the same is addressed to the Managing Director, India Infoline Ltd., IIFL House, Sun Infotech Park, Plot No.B-23, Thane Industrial Area, Wagle Estate, Thane-400604 but the postal receipt attached with the same Exhibit A-5 relates to a letter sent to Patel Nagar, Pin : 110008 which pertains to Delhi. Hence, it is not proved that any of these letters was actually received by the OPs. There is no evidence of deficiency in service or unfair trade practice on the part of the OPs.

8.                It is also significant to note that as per Clause 12 on page No.19 of account opening form “Exbt. R-1” which is also signed by the complainant the parties agreed to submit to the exclusive jurisdiction of the Courts in Mumbai. In view of this Clause, this Forum has prima facie no jurisdiction to try this complaint.

9.                For the reasons recorded above, we do not find any merit in the complaint and the same is dismissed, leaving the parties to bear their own costs.

10.              The certified copies of this order be sent to the parties free of charge. The file be consigned.