For the Complainant : Mr.A.R.Pargaonkar, Advocate
For the Opposite Party nos.1 & 2 : Mr.G.J.Sharma, Advocate
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Opposite party no.1 is a Company registered under Indian Companies Act, 1956 and itis a broker listed with the SEBI having membership with BSE (Bombay Stock Exchange) and NSE (National Stock Exchange). The Opposite party rendered the services to the investors to enable them to trade in the shares and invest in the stock market.
2 The Opposite party no.2 is Branch Office of the Opposite party no.1 at Yavatmal, Maharashtra State. The Complainant decided to invest in the stock market and handed over pay order bearing no.191484 drawn on Akola Janta Commerical Co-operative Bank Limited in favour of the Opposite party no.1, dated, 22.01.2008 for the amount of Rs.5,85,000/- and handed over the pay order to the Opposite party no.2. The pay order was duly realised and amount credited in the account of the Opposite party no.1. The Complainant had given instruction to the Opposite party no.2 to open D-MAT account in the name of the Complainant and deposit balance amount in the said account. The Complainant had signed and filled in necessary documents and handed over to it the Opposite party no.2.
3 It is alleged by the Complainant that he did not receive any information from the Opposite party no.2. The Complainant then approached Investor’s Grievances Cell of BSE and filed the complaint. The Investor’s Grievances Cell of BSE found that the Opposite party no.1 was not entitled to retain amount of Rs.5,85,000/- The Opposite party no.1, in the meantime accepted that they have received pay order of Rs.5,85,000/-but stated that the said pay order was issued by one –Mr.Rajendra Ramgopal Toliwal who was their client. The Opposite party no.1 had deposited the said amount in the account of the said –Mr.Toliwal. According to the Complainant, the Opposite parties have added against instructions given by the Complainant and they have wrongly deposited the amount in the account of Mr.Toliwal. The Complainant then filed present Consumer Complaint seeking directions as against the Opposite parties to give credit in sum of Rs.5,85,000/- to the Complainant and also claim compensation in sum of Rs.1,00,000/-.
4 The Opposite parties filed written version of defence and admitted to have received the pay order in sum of Rs.5,85,000/- but the Opposite parties took stand that the said pay order was received from Mr.Toliwal and receipt, dated, 22.01.2008 was received in the name of Mr.Toliwal. The same amount was reflected in the account of Mr.Toliwal. Further, the said amount was credited in Mr.Toliwal’s account and has been transferred to another Trading Company called Stock Holding Corporation of India. The Opposite party, further, clarified that the said account of SHCL is non other then the Complainant’s account with Trading Company i.e. SHCL. According to the Opposite party, the Complainant is well acquainted with Trading Rules and Regulations.
5 The Opposite party also took stand that the Complainant has deposited this amount with the Opposite party to invest the same in trading. Those allegations made in the complaint of alleged deficiency in service which pertains to trading in shares which is commercial purpose. Therefore, Consumer Forum has no jurisdiction to entertainment the complaint since the Complainant does not become a consumer under Consumer Protection Act, 1986.
6 Both the sides filed affidavit of evidence and documents. The Opposite party filed written notes of the arguments. On the date of the oral arguments, the Complainant was not present. We have heard learned advocate for the Opposite parties.
7 We take following points for our consideration and record our findings there against as below :-
Nos. | Points | Findings |
1 | Whether the Complainant is a consumer within the meaning of section-2(1)(d) of Consumer Protection Act, 1986 ? | No |
2 | Whether the Complainant has established that the Opposite parties are guilty of deficiency in service ? | No |
3 | What order ? | Complaint stands dismissed. |
REASONS FOR FINDINGS :-
8 The Complainant in paragraph no.1 of the complaint has described nature of activities of the Opposite parties and in paragraph no.2 of the complaint; he has described nature of the services, he sought from the Opposite parties. Those allegations are reproduced below,
“Complainant above named is Mr.Gautamchand P. Katariya having his business in the name and style of Arihant Enterprises at 10, Akruti Apartment, Opp. S. T. Workshop Arni road, Yavatmal- 445 001. Opposite party no.2 is a branch of the Opposite party no.1 who renders the service under the control of the Opposite party no.1. Opposite party no.1 is a Company duly formed and registered under the Indian Companies Act, 1956 having it’s office at 75, Nirlon Complex, off western express highway, Goregaon-East, Mumbai-400 006. Opposite party no.1 is a member broker listed with SEBI and having membership with the Bombay Stock Exchange and National Stock Exchange. Opposite party no.1 renders the services to the investors to enable them to trade in the shares and invest in the stock market against the consideration.
Complainant has also engaged and or availed such services of the Opposite party no.1 through Opposite party no.2 against the consideration. In this relation Complainant states that complainant with an intention to open a d-mat account and invest in the stock market through the Opposite party no.1 had approached the Opposite party no.2 i.e. the branch office of the Opposite party no.1. Complainant had complied with all the pre-requisites to enable him to invest in the stock market are directed by the Opposite party no.2 and handed over a pay order bearing no.191484, drawn on the Akola Janta Commercial Co-operative Bank Limited, in favor of the Opposite party no.1, dated, 22.01.2008, for the amount of Rs.5,85,000/-, to the Opposite party no.2. Complainant states that the said pay order was duly encashed in the account of the Opposite party no.1 but till date no account in the name of the Complainant opened and no credit of the said amount given to the Complainant which allegedly amounts to the deficiency in service on the part of the Opposite parties under Section-2(1)(g) of the Consumer Protection Act hence the present complaint”.
9 In the paragraph no.3, in the first sentence, the Complainant has alleged that he wanted to invest his savings in the Stock market for the securities. The Opposite party has explained that mandatory amount of Rs.5,555/- is to be paid to open the account whereupon kit is provided to the account holder. The Complainant has not paid sum of Rs.5,555/- only but he had issued pay order of Rs.5,85,000/-. Thus, according to the Complainant, the amount of the pay order included mandatory amount of Rs.5,555/- to open D-mat account and balance was to be invested in the Stock Market. Thus, the Complainant has not allegedly availed the services of the Opposite parties to open D-mat account but he had also availed services of the Opposite parties as a broker for share treading. According to explanation below section-2(1)(d) of Consumer Protection Act, 1986, any service availed by a person for commercial purpose would not make such person ‘consumer’. Trading in stock market is principally for Commercial Purpose. It is not alleged by the Complainant that he had done so to earn livelihood as self-employment.
10 In this context, reference could be made to decision of Hon’ble Maharashtra State Commission in C.C.No.77/2010 decided on 07.06.2010 in which Hon’ble State Commission hold that if the Complainant is investor and he desired to trade in shares and for the trading purpose services of the Opposite parties are hired then it becomes commercial transactions. In view of this decision and nature of the transaction, we find that the complaint under Consumer Protection Act, 1986 is not maintainable.
11 Even on merits, we find that the Complainant has suppressed material facts. The Opposite party has produced copy of D.P.Note along with the written version of defence and therein name of Mr.Toliwal appears as person who has made the payment for sum of Rs.5,85,000/- under pay order no.0191484, dated, 22.01.2008. The Opposite party has produced copy of account of Mr.R.R.Toliwal which shows that amount in sum of Rs.5,85,000/- was credited to his account. Said fact was explained by the Opposite party before NSE vide letter, dated, 04.09.2008. When the present complaint was pending, the Complainant had send e-mail to Stock Holding India Limited requesting them to transfer certain shares from his D-mat account to another account. In that e-mail ID D-mat account No. IN301330 is given. This shows that the Complainant was already having D-mat account and it was not to be opened through the Opposite party. What is important to note that vide that e-mail / letter, dated, 16.04.2010, the Complainant requested to Stock Holding India Limited to transfer certain shares from his account to the account of Mr.Toliwal on the ground that they were wrongly credited in the account of the Complainant by Mr. Toliwal. Now, Mr.Toliwal was same person in whose account, the Opposite party has credited amount in sum of Rs.5,85,000/- received under pay order, dated, 22.01.2008. In the normal course the person who has grievance against the particular person would not make such request. This shows that there were some internal transactions between the Complainant and Mr.Toliwal. This lends / gives support to the contention of the Opposite party in its written argument that the Complainant use to deal in account of Mr.Toliwal. In the letter, dated, 16.04.2010, referred above, the Complainant has mentioned his D-mat account no.-IN 301330 with Stock Holding India Limited. In the complaint, the Complainant has suppressed this fact and has drafted the complaint in such a manner that he wanted to open D-mat account with the Opposite party. Then, below the letter, dated, 16.04.2010, there is copy of letter issued by Stock Holding Corporation India Limited to the Complainant in which the Complainant’s D-mat account number and client ID is mentioned. However, in the complaint, the Complainant has alleged that he wanted to start this new venture of investment in stock.
12 On going through the documents and affidavits, we find that even on facts, the Complainant is not bonafide person and his statements are not fare and reliable. Therefore, on facts also, we are not inclined to rely upon the Complainant.
Hence, we proceed to pass the following order.
::::: ORDER :::::
(1) Complaint is dismissed with no order as to costs.
(2) Certified Copy of this order to be furnished to both the parties, free of costs.
