ORDER

(Per: Mr.  D.K. Tyagi, Member):

The complainant has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against the opposite parties for compensation of      Rs. 25,45,000/- towards financial loss, Rs. 50,000/- as litigation expenses and Rs. 15.00 lacs towards mental pain and agony.  

2.       The complainant has stated in the consumer complaint that he had a DMat account having client ID No. 10611068 with Alankit Assignment Ltd., New Delhi.  In the month of February, 2006, the complainant on the representation of the opposite party No. 2 had opened his DMAT account with the opposite parties and was allotted account Login ID-RAJRAV-67 and clinet ID 10683809.  The complainant was made to sign a form and the opposite parties had obtained about 40 signatures on the said form but at that time neither the said form was filled up nor any copy of the said form was provided to the complainant despite his request.  That as agreed between the complainant and the opposite parties were supposed to provide statement of account to the complainant every month besides doing transaction in the said account on duly issued instructions of the complainant. The complainant was also handed over certain papers after opening of account which contained his confidential password and also 10 delivery instruction slips accompanied by a client master list approved by NSDL.  The complainant has till date not scratched the said password and the said paper is intact with the complainant.  In absence of the said password no transaction could have been carried out from the said account of the complainant.  In the said account the complainant got transferred his shares of 20 companies from his previous account at Alankit Assignment Ltd. to the said account and also got transferred shares of two companies from his father’s account No. 10632052, which was also maintained by Alankit Assignments Ltd. to his said account.  After opening the said account with the opposite parties the complainant asked for the statement of account to ascertain that his shares from his previous account maintained by Alankit Assignment Ltd. have been duly transferred, but it was not provided. Non- providing of the statement of account to the complainant is deficiency in service provided to the complainant. The opposite party No. 2 had made the complainant understand that unlike other similar companies the opposite parties’ brokerage fees is only 0.35% per transaction carried out by them on instruction of the complainant and not 1.5%.  The complainant was also made to understand that no charges as the opening of account will be charged from the complainant, but the opposite party will charge the complainant by receiving commission of 0.35% per share transaction. That the complainant had been repeatedly requesting for providing him statement of account since in absence of the same the complainant was unable to issue instruction for any transaction.  The complainant from the very beginning of his account with the opposite parties has not carried out any transaction in his shares nor has till date given any instruction to do so. Sometime in May, 2006, through newspaper and T.V. programme “Peharedaar”, the complainant came to know that the opposite parties are into business of befooling others for their personal gains and, hence, checked up with the dividends received from various companies whose shares, the complainant had got transferred from Alankit Assignment Ltd. to the said account of the complainant maintained by the oppsotie parties and found out that his account holding after being transferred to the said account maintained by the opposite parties has been drastically reduced and various transactions have been carried out from his said account, whereas he neither issued any instruction to do so nor has carried out any transaction himself.  The complainant lodged complaint with the Branch Incharge of opposite parties at the office of opposite party No. 2, Sh. Sandeep Patiyal and also Branch Incharge Sh. Mukesh Jha, who were looking after the said DP account of the complainant.  They admitted their negligence and deficiency in service provided to the complainant and assured to compensate him.  The complainant believed them and waited for sometime, needful was not done by the opposite parties.  The complainant hence again contacted Sh. Sandeep Patiyal and Sh. Mukesh Jha at office of opposite party No. 2, but they completely changed their stand and started threatening the complainant that the opposite parties are run by underworld people and as such the complainant should keep silent and not pursue the matter. The complainant soon spoke telephonically to the opposite party No. 1 but to no avail.  The complainant through letters also called upon the opposite parties to provide him the statement of account as well as the contract notes, but even after receiving the said letters the complainant was not handed over the required papers. The complainant hence went to the local police station to lodge a complaint in the police station for the fraudulent acts of the opposite party but on account of influence of the opposite party the same was not registered and it took about 8 months for making the local police receive the complaint of the complainant. The opposite party has not only committed fraud with the complainant but has also not provided the proper service to the complainant, which they were supposed to do.  The opposite parties were to provide the service of share transactions through the DMAT account, i.e. the said account of the complainant, but even after receiving the requisite amount from the complainant have failed to provide the services to the complainant and to the contrary have acted without consent or authority of the complainant and caused him loss of more than Rs. 25.00 lacs on account of the deficiency in service provided to the complainant. In case the opposite parties had supplied the statement of the said account to the complainant from time to time, then the complainant would have been able to find out about the embezzlement from his said account.  The opposite parties, on account of the criminal complaint made by the complainant, had to seek intervention of the Hon’ble High Court for getting the arresting stayed and in the petition, have filed copy of document purporting to be the Power of Attorney whereas the complainant never executed the same.  On the other hand the complainant had been regularly seeking intervention of the NSDL and was supplied with another document purported to be Power of Attorney and also shown to be attested in Bombay on 18.11.2008, whereas the complainant was in Roorkee at that time.  The said document purported to be Power of Attorney is neither stamped nor duly authenticated, neither any witness to the execution was present, as is evident from the copy of the said document filed before the Hon’ble High Court of Uttarakhand.  The entire act of preparing the said document purporting to be Power of Attorney is fraudulent and also a deficiency in service provided to the complainant by playing with the faith of the complainant reposed in the opposite parties by opening his said account.  It is also relevant to point out here that the Power of Attorney bears date 26.12.2005 and admittedly the said account of the complainant has been opened on 15.02.2006 by the opposite party.  During investigation, the opposite party again carried out transaction in the said account of the complainant, as is evident from the statement of account dated 04.09.2008, which was provided to the complainant by NSDL through its letter dated 24.11.2008 after obtaining the same from the opposite party.  The statement of account dated 04.09.2008 shows a transaction of about Rs. 45,000/-, whereas the complainant had never consented for the same.  The statement of account provided to the complainant vide letter dated 24.11.2008 shows the transaction of shares pertaining to more than 45 companies, whereas the complainant had got transferred shares from 22 companies from his and his father’s DMAT account maintained by Alankit Assignment Ltd. and after transfer of his shares from Alankit Assignment Ltd., the complainant has not carried any transaction nor instructed to do so from his said account as such statement of account showing more than 45 companies indicates that during investigation also the opposite parties are carrying out transaction from the said account of the complainant.  Hence, the opposite parties continue to commit deficiency in service provided to the complainant.  On account of the deficiency in service by the opposite parties, the complainant has been made to suffer financial loss on account of the shares of 22 companies, which are disclosed in this consumer complaint.  The shares mentioned in the 22 companies, at the time of transfer from Alankit Assignment Ltd. to the said account maintained by the opposite party, bore value of more than Rs. 12.00 lacs and at the time, when the embezzlement was carried out by the opposite parties, the share market was at its peak and the shares bore a value of more than double, i.e. about 25.00 lacs.  On account of the acts of the opposite parties, the complainant not only sustained loss on account of unauthorized transactions carried out by the opposite parties in the said account, but also on account of the litigation amounting to Rs. 50,000/- arisen out of the deficiency in service provided by the opposite parties.  The complainant is a practicing doctor and on account of the acts/omisions of the opposite parties, has not been able to concentrate on his profession since he is running from pillar to post to seek the available remedies against the opposite parties for the fraudulent acts of the opposite parties, thereby sustaining more financial loss. The cause of action for the complaint has arisen to the complainant initially on 15.02.2006, then in May, 2006, then on the dates mentioned hereinabove and then on 04.09.2008 and continues eversince then.  The complainant is a consumer of the opposite parties within the meaning of the Consumer Protection Act, 1986 and this Commission has the jurisdiction to hear and decide the consumer complaint.

3.       The opposite parties have filed the written statement and pleaded that this Commission has no jurisdiction to hear and decide the case.  Trading was being done by the complainant to earn profits, therefore, the dispute is not ad-judicable in the summary procedure provided under the Consumer Protection Act and the appropriate remedy is to refer the dispute to Arbitrator or to the Civil Court, where detailed evidence can be produced.  It is admitted that the complainant opened his account in the opposite party-company in the month of February, 2006.  Before opening the account, the complainant had perused the opening form as well as terms and conditions, thereafter, he put his signatures.  One copy of the opening form was also provided to the complainant.  There was a clear instructions in the written agreement made between the parties that the complainant may receive any information through internet for which the complainant had provided his e-mail id rajkumargaurav12@rediffmail.com. After opening the account, the complainant himself transferred shares of 22 companies and also purchased shares of Rs. 6.00 lacs in the said account, but the complainant had not paid any money to the opposite party company.  The opposite party company had provided password to the customer to know about the account and transaction through internet.  The complainant used to take informations from the company and all informations regarding the account of the complainant were available on the internet.  The opposite parties also sent informations regarding the account and all transactions through courier. Therefore, there is no deficiency in service on the part of the opposite parties. The opposite parties have charged brokerage as per Broker-Client Agreement in the light of Rules of Stock Exchange.  Clause No. 5 of the Broker-Client Agreement is as follows:-

“Brokerage and Taxes:  IISPL shall be entitled to a brokerage of upto the maximum rate permitted by SEBI/Exchange, of the value of every transaction that may be undertaken by the CLIENT by using the E-broking and/or Offline Service.  The rates of brokerage for each Product that the CLIENT may avail of under this Agreement are mentioned in trading and product guidelines brochure hereto. The rates of brokerage may be revised by IISPL from time to time at its sole discretion.

          The CLIENT shall also pay any applicable taxes, including service taxes, handling charges, depository charges that may be levied on any transactions undertaken pursuant to this Agreement.”

It is denied that the complainant neither issued any instruction for various transactions nor has carried out any transaction himself. Any transaction of sale or purchase was done by the company was on the instruction of the complainant for which information was given to the complainant on his e-mail id.  Apart from this, if the complainant desires he could have obtained the statements of account after depsoting a nominal charges in the opposite parties company.  The opposite party company is not responsible for any loss to the complainant due to share market crash.  The opposite party company is a reputed company in the country, who was awarded best Broker Award by “Finance India Pacific Magzine”.  The complainant had filed a false report in the police and after investigation, the police had filed FR in the court.  The complainant had never suffered a loss of Rs. 25.00 lacs.  The Hon’ble High Court had also passed an order in favour of the opposite party company and stayed the arrest of its employees.  Due to the debit balance outstanding against the complainant, the opposite party company had asked for money for which the complainant had issued a cheque No. 445540 of Rs. 49,000/- on 29.04.2006 of Union Bank of India, which was dishonoured by the bank.  The opposite party company had informed the complainant vide its letter dated 23.10.2006, even then the complainant did not give any money to the opposite party company.  Thereafter, the opposite party had sold the shares for a sum of Rs. 45,000/- to get money from the complainant’s account on 04.09.2008.  The complainant is a clever man, who had transferred his and his father’s shares of 22 companies worth Rs. 6,32,388/-  and in lieu of the value of shares, the complainant had purchased shares of 23 other companies worth Rs. 6.00 lacs through the oppsotie party company without paying any amount.  There was neither value of Rs. 12.00 lacs at the time of transfer of the shares nor value of those shares became 25.00 lacs when the share market was at its peak.  All the transactions were made by the opposite party company on the instruction of the complainant, therefore, there is no deficiency in service on the part of the opposite party company.  The complainant is not a consumer in view of the Consumer Protection Act, 1986.  There is a clause in the agreement that all the disputes between the customer and the company shall be referred to the Arbitration.  Valuation of this case is only Rs. 6,32,388/-, therefore, this Commission has no jurisdiction to hear and decide the case.  In the additional pleas, the opposite party company has stated that the complainant had filled a Broker-Client Agreement form on 26.12.2005 and a Power of Attorney was also provided to the opposite party company, which was signed by the complainant and two other witnesses.  In the Power of Attorney the complainant had authorized the company that in case of debit balance, the company can recover the money after selling the shares of the complainant.  The opposite party company is registered with BSE and NSE and works under the Rules and Regulations of SEBI.  When the opposite party company ask for its money to the complainant, the complainant had threatened the employees of the company and also lodged a criminal case against the employees of the opposite party company. Police after investigation has filed FR in the court.  The complainant had also sent a false complaint to the NSDL for which NSDL had replied to the complainant.  No employee of the opposite party company had threatened the complainant. The opposite party company is not responsible for any loss caused to the complainant, due to the crash of the market.  There is no amount outstainding towards the company.  There is no cause of action arose against the opposite party company.  The complainant is not entitled for any amount rather per contra the opposite party company is entitled to get Rs. 6,087.48 ps. on the basis of statement till 04.03.2010. 

4.       The complainant-Dr. Rajkumar Gaurav has filed an affidavit (Paper Nos. 157-165) in evidence.  The complainant has also filed several documents at the time of filng the consumer complaint. These documents are several transaction statements, delivery instructions, transfer instruction for delivery, D.P. account password, letter dated 23.02.2006 sent by opposite parties to the complainant, Client Master List, Schedule of Charges For Depository, letter dated 05.05.2006 sent by the complainant to Mr. Mukesh Jha, Branch Incharge, India Infoline Securities (P) Ltd., letter dated 08.06.2006, letter dated 06.07.2006, letter dated 11.10.2006 sent by the complainant to Mr. S. Ganesh, Assistant Vice President, NSDL, letter dated 11.10.2006, letter of India Infoline Securities (P) Ltd. to the complainant dated 23.10.2006, complainant’s letter dated 20.11.2006 to Depository Head, India Infoline Securities (Pvt.) Ltd., complainant’s letter dated 22.01.2007  & 16.03.2007 to D.G.P. of Uttaranchal, copy of Chick F.I.R., copy of complaint to police, letter dated 25.04.2007 to D.G.P. of Uttaranchal, copy of notice of Hon’ble High Court, Uttaranchal, Nainital, copy of Criminal Writ Petition No. 579 of 2007 (M/B); Mukesh Jha & 4 others vs. State of Uttarakhand & others, account opening form, beneficiary account details, agreement for transaction statement through internet with Power of Attorney, D.P. client agreement, Broker-Client agreement-NSE, letter dated 15.09.2007 to S.S.P., Haridwar, notice under Section 111 Cr.P.C., letter dated 10.10.2008, letter dated 16.12.2008 to D.I.G., Garhwal Range, Dehradun, letter dated 18.12.2006 to Depository Head, India Infoline Securities (Pvt) Ltd., reply to complainant by NSDL dated 24.11.2008, certain papers regarding trading of shares and letter dated 14.09.2008 to S.S.P., Haridwar etc.  The complainant has also filed certified copy of the Criminal Complaint No. 3430 of 2009; Rajkumar Gaurav vs. Mukesh Jha & others under Section 420, 504 and 506 IPC before P.S. Kotwali, Roorkee. 

5.       The opposite parties have filed affidavit of Sh. Sunil Sareen, Territory Manager, India Infoline Pvt. Ltd., Rajpur Road, Dehradun (Paper Nos. 168 to 182) alongwith certain papers like account opening form, Power of Attorney, DP-Client agreement, Broker-Client agreement-NSE, certified copy of registration from Securities And Exchange Board of India (SEBI), certified copy of Membership from National Commodity and Derivatives Exchange Limited (NCDEX) and certified copy of Membership from Multi Commodity Exchange of India Ltd., certified copy of newspaper Business Standard (Hindi) 27.06.2008 regarding award to the opposite parties by Finance Asia Magzine, letter dated 18.04.2007, certified copy of cheque issued by the complainant, letter of Axis Bank Ltd. regarding dishonour of cheque, letter dated 23.10.2006 of opposite party to the complainant, photocopy of FR submitted by police dated 04.11.2007, list of companies with quantity of shares of complainant, several statements of Bill cum Transactions, certified copies of receipts of courier services, statement of account of the complainant etc.

6.       The complainant has also filed a rejoinder affidavit (Paper Nos. 234 to 236) and written arguments (Paper Nos. 245 to 249), whereas the opposite parties have filed their written arguments (Paper Nos. 250 to 265).

7.       We have heard learned counsel for the parties and have also gone through the record, affidavits of parties as well as written arguments and the case laws filed by them. 

8.       Learned counsel for the opposite parties submitted that the complainant is guilty of serious suppression of real and true facts to this Commission.  The consumer complaint is not maintainbale under law or on facts and the same is liable to be dismissed in limine.  The complainant has no locus standi to file the present consumer complaint, as he is not a consumer under Section 2(d) of the Consumer Protection Act, 1986.  The opposite party company M/s India Infoline Ltd., is a trading company of National Stock Exchange of India ltd. having it’s registeration with Securities and Exchange Board of India (SEBI) Rules 1992.  The company is also a trading member of the Bombay Stock Exchange Ltd.  Learned counsel has also argued that the trading was being done by the complainant to earn profits.  The profits, whatsoever, were accrued in the transactions were being paid to the complainant after deducting the brokerage.  In the background of these complicated facts, the dispute is not ad-judicable in the summary procedure provided under the Consumer Protection Act and the appropriate remedy is to refer the dispute to Arbitrator or to the Civil Court, where detailed evidence can be produced.  As per the complaint, the complainant himself alleged in his consumer complaint that the cause of action arose on February, 2006 and there is no correspondence between the complainant and the opposite party since February, 2006 till April, 2007.  The complainant has filed the said complaint in the year 2009.  Hence, the complaint filed by the complainant is time barred.  This Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the consumer complaint, as it is not a consumer dispute and does not lie within the ambit of the provisions of the Consumer Protection Act, 1986.  The complainant had opened a Trading Account with the opposite parties to earn profits and not for the self employment.  Thus, the complainant cannot be said to be a “consumer” under the Consumer Protection Act, as the trading and sale/purchase of shares is totally a commercial activity.  The complainant is a Physician and doing his profession as Doctor.  It has not been mentioned anywhere in the agreement that the transaction of shares is the only source of livelihood for the complainant and he is not indulge in any other occupation/profession elsewhere.  It means that the complainant has doing the commercial activity for making profit and he is well aware of the market condition and having well experience of trading of 5 years also as he himself and his father is having various demat accounts in other companies also and same is operating by the complainant.  The Forum under the Act does not contemplate the determination complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a detailed scrutiny and assessment of such evidence since this is not a matter which can be satisfactorily adjudicated upon in the time bound proceedings under the Rules of Consumer Protection Act, 1986.  Learned counsel also argued that this consumer complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986, as the same is prima facie false, frivolous, malicious, vexatious and engineered taking advantage of the fact that no court fee is payable for the institution of case under the Consumer Protection Act, 1986.  The complainant also knows that if any dispute arises in transaction, the dispute may be settled by referring to the Sole Arbitrator, as per the Arbitration and Conciliation Act, 1996 as amended from time to time.  But no notice has been given to the opposite party in this effect and neither approached nor referred to Arbitrator with respect to the said dispute.  The complainant is a well educated man, who understands the terms and conditions, as signed and executed the documents on his own will.  Per contra, the learned counsel for the complainant argued that the consumer complaint filed by the complainant is maintainable before the Consumer Fora and since the opposite parties have misused the funds of the complainant and have purchased and sold the shares of the complainant without his knowledge and consent, and hence, the complainant is entitled to the relief claimed and his consumer complaint is fit to be allowed.

9.       Having considered the respective submissions advanced by the learned counsel for the parties, we think that the first and foremost issue to be decided in this case is whether the complainant falls under the definition of “consumer” as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 or not and whether the consumer complaint filed by the complainant is maintainable before the Consumer Fora or not.  Section 2(1)(d) of the Consumer Protection Act, 1986 reads as under:-

“(d)    “consumer” means any person who–

(i)             buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(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 a person who avails of such services for any commercial purposes;

10.     From the above quoted definition of “consumer”, it is abundantly clear that the person who avails the services for any commercial purpose or the person who is engaged in any commercial activity, does not fall under the definition of “consumer” and cannot be said to be “consumer” as per the provisions of Consumer Protection Act, 1986.  The “commercial purpose” means generating profit and engaged in the activity not for the purpose of earning the livelihood.

11.     In the present case, the complainant is engaged himself in share trading business not for the purpose of earning his livelihood.  He is engaged in share trading activities and is investing his savings in shares.  Investment means generating profit from the amount so invested.  The complainant has nowhere averred in his consumer complaint that he has invested his money in shares not for earning profit.  The same is also not the source of livelihood for the complainant.  The complainant has been investing his money for past few years in shares, goes to show that the complainant has been investing his money in shares for earning profit, hence it can safely be said that the complainant is engaged in commercial activity and, hence, the complainant does not fall under the definition of the “consumer” as provided under the provisions of Consumer Protection Act, 1986 and, as such the consumer complaint was not maintainable before the Consumer Fora.  The averments made by the complainant in the consumer complaint also depict that he has been trading in the business of shares and the complainant has raised the dispute with regard to sale and purchase of shares by the opposite parties. 

12.     This apart, the dispute raised by the complainant in the present case pertains to purchase and sale of shares and in the consumer complaint, the complainant has nowhere pleaded that he is dealing with shares business as self-employment for earning livelihood.  It is a settled law that the transactions regarding sale and purchase of shares are commercial transactions and the person engaged in the said transactions cannot be termed as “consumer” as per the definition of the word provided under Section 2(1)(d) of the Consumer Protection Act, 1986.

13.     The complainant also cannot be said to be unaware of the risk involved in the share market, as he himself for the past few years, has been dealing in shares, which further proves the fact that the complainant is indulged in share trading business for the purpose of earning profit and, as stated above, the same is not the source of earning his livelihood by the complainant and hence he is not covered under the definition of “consumer” as provided under Section 2(1)(d) of the Consumer Protection Act, 1986. 

14.     In the case of National Seeds Corp. Ltd. vs. P.V. Krishan Reddy; I (2009) CPJ 99 (NC), the Hon’ble National Commission has observed that there is no bar for adjudication of complaint by Fora, even there is existence of arbitration clause in agreement. Therefore, we are convinced that even there is arbitration clause in agreement between the appellants and the respondent even then Fora has right to hear and decide the matter. 

15.     Learned counsel for the opposite parties have cited a decision of Hon’ble National Commission in the case of Anand Prakash vs. A.M. Johri; (2000) 3 CPJ 291.  In the said case, it is held that the transaction in question is purely a commercial transaction and the appellant, in the given facts, is not a consumer within the meaning of Section 2(1)(d) of the Act and the dispute being raised is not a consumer dispute within the meaning of Section 2(1)(e) of the Act. Learned counsel also cited a decision of Hon’ble National Commission in Revision Petition No. 2441 of 2012; India Info Line Commodities Ltd. & Anr. Vs. Jagu Srinivasa Rao decided on 12.02.2014, wherein the Hon’ble National Commission has held that the petitioner is not a consumer and the Consumer Fora is not armed with the power to decide commercial transactions. 

16.     The Hon’ble National Commission in the case of V.K. Agarwal (Dr.) vs. Infosys Technologies Ltd. and others; I (2013) CPJ 373 (NC), has held that the sale and purchase of shares are commercial transactions and, therefore, the complainant is not a “consumer”.  In the case of Pahlaj Manamal Nichani vs. Mis Process and Cutomer Complaints and another; II (2013) CPJ 105, the Karnataka State Consumer Disputes Redressal Commission, Bangalore has held that the person who purchases shares in bulk, cannot be considered as “consumer” and the dispute arose in that regard cannot be considered as “consumer dispute”.  In the present case also, the complainant has made purchase of large number of shares and the said sum cannot be said to be a small sum and it can safely be said that the complainant has made purchase of shares in bulk.  The share transactions by the complainant in this present case is for commercial purpose.  In the case of Vijay Kumar vs. Indusind Bank; II (2012) CPJ 181 (NC) the complainant was engaged in share trading business. It was held by the Hon’ble National Commission that regular trading in purchase and sale of shares is a commercial transaction and only motive of the same is to earn profit.  The Hon’ble National Commission in the case of Som Nath Jain vs. R.C. Goenka and another; I (1994) CPJ 27 (NC), has held that it was alleged that the opposite party had undertaken to purchase shares to the tune of Rs. 7.00 lacs and to submit accounts showing the purchase etc., but the opposite party did not submit genuine documents regarding purchase of shares etc.  It was held that the complaint is not maintainable.

17.     Further, the Hon’ble National Commission in its decision dated 16.04.2014 rendered in Revision Petition No. 3367 of 2013; Sudhangsu Bhusan Dutta vs. The Joint Managing Director, Mansukh Securities & Finance Ltd. and others, has held that since the petitioner is an investor in shares and hence he does not fall under the definition of “consumer”.  In the said decision, the Hon’ble National Commission has placed reliance on its earlier decision dated 21.08.2012 given in First Appeal No. 362 of 2011; Ganapathi Parmeshwar Kashi and another vs. Bank of India and another.  The said case pertained to DMAT Account and the appeal was dismissed by the Hon’ble National Commission.  Aggrieved by the said order, a Special Leave to Appeal (Civil) No. 5401 of 2013; Ganapathi Parmeshwar Kashi and another vs. Bank of India and another, was filed, wherein the Hon’ble Apex Court has held as under:-

“(ii) The concurrent finding recorded by the State Consumer Disputes Redressal Commission, Maharashtra and the National Consumer Disputes Redressal Commission that the petitioners cannot be treated as consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986, is based on analysis of the pleadings filed by the parties.  The DMAT account was opened by the petitioners purely for commercial transactions.  Therefore, they were rightly not treated as consumer so as to entitle them to claim compensation by filing complaint under the 1986 Act.”

18.     In a recent decision again, the Hon’ble National Commission in the case of R.R. Equity Brokers Pvt. Ltd. and another vs. Dinesh Kumar Jaiswal; III (2014) CPJ 396 (NC), has held that the respondent is trading regularly in share business which is commercial activity and under these circumstances, he would not fall under the definition of “consumer” as per the Act.  Moreover, regular trading in the sale and purchase of shares is a purely commercial activity and the only motive is to earn profits.  Therefore, this activity being purely commercial one, is not covered under the provisions of the Act.  In the instant case also, the complainant has nowhere pleaded that he is doing the share trading business for self-employment nor it has been pleaded that the services provided by the opposite parties were being availed by the complainant exclusively for the purpose of earning his livelihood by means of self-employment.  It is well settled that the dispute between the parties relating to commercial purposes are excluded under the Act.

19.     Further, the Hon’ble National Commission in the case of Steel City Securities Ltd. vs. G.P. Ramesh and another; I (2014) CPJ 576 (NC), has held that the sale purchase of shares is a commercial purpose and trading in shares is purely commercial activity and only motive is to earn profit and the complainant is not a “consumer”.

20.     In view of the aove factual position and the law cited above, it can safely be held that the complainant in the present case does not fall under the definition of “consumer” as provided under Section 2(1)(d) of the Consumer Protection Act, 1986, as he has invested money in shares for earning profit, i.e., for commercial purpose and hence the consumer complaint filed by him is not maintainable before the Consumer Fora and is liable to be dismissed as such.

21.     There is no dispute with regard to the fact that the criminal proceedings are pending between the parties and the matter has gone upto the Hon’ble High Court of Uttarakhand at Nainital.  An F.I.R. was lodged by the complainant against the opposite parties and the police has submitted F.R. after investigation.

22.     However, since the complainant does not fall under the definition of “consumer” as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 and hence the present consumer complaint filed by him is not maintainable before the Consumer Fora and is liable to be dismissed.

23.     For the reasons aforesaid, the consumer complaint is dismissed.  No order as to costs.

(MRS. VEENA SHARMA)                            (D.K. TYAGI)                        (JUSTICE B.C. KANDPAL)