BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    21^st DAY OF FEBRUARY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to grant Rs.2,82,564/- (transaction on 14 & 15 December towards Gold-mini) towards recovering losses incurred (which is the buy value of the fraud service) by OP, to pay Rs.1,00,000/- towards mental harassment and penalize for the foul play played with complainant and such other reliefs on the allegations of deficiency in service.

2. The brief allegations made in the complaint are as under:

That complainant is a commodity trader having account with India Infoline (IIFL) and his client ID is “MANJUGCH”.  That the India Infoline executives committed fraud twice with complainant demat account held with them by executing a transaction without his notice and authorization.  Hence this transaction left unknown and came as shocking to complainant.

That regarding second or latest fraud transaction, complainant had meeting with service manager in their IIFL office in Queens Road on 24.12.2011 to discuss with authorities couple of times to get more clarity with necessary recordings but unfortunately they failed to come up with proof during first meet and hence branch manager Mr.Sinivas, requested for another meeting to justify the same and he would let the complainant know the next meeting schedule.  But after few days complainant did not receive any mail/call from them about next meeting.  Complainant had called Mr.Srinivas to know the next schedule of meeting.  To his surprise, he asked complainant to align the local branch manager of Queens Road.  Complainant met branch manager as per his advise.  Branch manager was not in position to show any more recording to their highness of fraud, local branch manager asked the complainant to contact Mr.Sininivas again and he was also claiming that he has already showed recordings but not sure if he failed to differentiate the actual expected recording which was not during their first meeting.  Complainant personally explained him about the concern but he was in sorry face for not showing it.  Hence complainant realized the fault committed by IIFL.  Complainant asked him to bare the losses incurred because of this transaction but they failed again.  Complainant started escalating case to IIFL authorities via email.  That complainant has also reminded them of previous instance of fraud which got executed due to their negligence.  IIFL Customer Care has also followed up with their local branch and absolutely there is no response.  Complainant felt deficiency in service on the part of OP.  Hence left with no other option complainant got files this complaint for reliefs.

3. On issuance of notice, OP appeared and filed a detailed version denying the contents of the complaint.  The main contention taken by the OP is that, the complainant become a member to do stock trade business with OP entered into Agreement of Broking and depository Services, Combined Risk agreement, GPA etc.  So the transaction is in commercial nature hence the complainant is not a ‘consumer’.  Further taken the contention that as per the agreement all trades, transactions and contracts are subject to the rules and regulations of the exchange on which the trades have been executed and the parties to such trade shall be deemed to have submitted to the jurisdiction court in Mumbai and the parties to such trade shall be deemed to have submitted to the jurisdiction of the courts in Mumbai for the purposes of giving effect the provisions of the Rules and regulations of the exchange.  The rest of the contents have been specifically denied as the action taken by the OP is not in accordance with law.  On these grounds and other grounds OP prayed for dismissal of the complaint.

4. The complainant in support of his case tendered his affidavit evidence reiterating the allegations made in the complaint.  On behalf of OP one Sri.Sreenivasalu, Territory Manager, tendered his evidence by way of affidavit.  Both the parties have produced certain documents.  Written arguments have been filed.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1:-   The complaint filed by the complainant is a sketchy wherein he has made allegations of latest fraud transaction and also in respect of his agreement with OP in respect of the commercial transaction i.e., he being the member to the Stock Trade Business of OP.  If the complainant become the member of the stock exchange to do the stock trade business is not comes within the purview of Section.2(1)(d) of the C.P Act in the light of the decisions reported in;

1. 2010 CTJ 1092 (CP) (SCDRC) Raghubir Singh Vs. India Bulls Securities Ltd., and others wherein complainant opened demat account with the opposite parties – Transaction is shares made by the opposite parties through the account allegedly without the complainant permission - loss of much of Rs.3,45,000/- caused to him – complaint dismissed by the District Forum – Appeal – Evidently large scale trading in shares done through the account for earning huge profits – Definitely a commercial activity – Complainant held to be not a consumer under the Act – WHETHER the opposite parties committed any fraud as alleged, the question could not be gone into by the Consumer Forums under their summary jurisdiction – Impugned order upheld.

2. In 2010 CTJ 1194 (CP) (SCDRC) Anand Rathi Securities Ltd., and others Vs. Smt.Rajshri Verma and another it was held that, Undoubtedly the share trading is a commercial activity and the services availed for that purpose are obviously to be considered to have been availed for commercial purpose.  As such a person availing such services cannot invoke the jurisdiction of the Consumer Protection Act.

8. In the light of the decisions cited supra, we come to the conclusion that, the complaint filed by the complainant is not maintainable before this Forum.  The only remedy left open to the complainant is to approach the jurisdiction civil court to get redressal his remedy by taking assistance in a case of Laxmi Engineering Works V/s. P.S.G Industrial Institute (1995) 3 SCC 583 on the point of limitation.  Accordingly we answered point No.1.

9. Point No.2: In view of our findings on point No.1, this issue does survive for our consideration.

          10. Point No.3: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed holding that the complainant is not a ‘consumer’.  Only remedy left open to the complainant is to approach the jurisdiction civil court to get redressal his remedy by taking assistance in a case of Laxmi Engineering Works V/s. P.S.G Industrial Institute (1995) 3 SCC 583 on the point of limitation.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 21^st day of February 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 24.01.2013.

Sri.Manjunath Channi.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 05.10.2012.

Sri.Sreenivasalu.  

Document produced by the Opposite party.

MEMBER                                                               PRESIDENT

Vln*