PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant Shri.Ramchand J. Uttamchandani is residing at Mahim, Mumbai at the address given in the complaint alongwith his two daughters Sheela and Sonia & son Ritesh. According to the Complainant, alongwith two daughters and son he has jointly opened Accounts bearing Nos.10076542 and 10078425 for dematerialization of shares under Depository Act of 1996 under the Agreement singed with Opposite Party No.1. It is submitted that on 03/11/2009 he received letter dtd.26/10/09 from Chennai Office of Opposite Party No.1 in which it is mentioned that these 2 accounts have been suspended for debit for want of Pan Card copies of joint holder including the Complainant first name. Opposite Party requested the Complainant to forward PAN Card copies to enable them to activate Complainant’s Demat Accounts.
2) It is submitted that the Complainant wrote a letter to Opposite Party No.1 on 09/11/09 informing that the Complainant had already submitted the said PAN Cards in question of all the joint holders to their Mumbai Office. As a proof the Complainant had enclosed copy of his letter dtd.19/06/2006 showing the acknowledgement of Opposite Party No.1 thereon with its stamp. The Complainant had requested Opposite Party to immediately lift the suspension as mentioned in their letter dtd.26/10/2009. However, till date Opposite Party No.1 have not kept their promise of activating the accounts and thus prevented the Complainant from selling shares. According to the Complainant, this amounts to unfair trade practice by Opposite Party No.1 and it also deficiency in service. Since Opposite Party No.1 had not responded, complaint was lodged with Opposite Party No.2 who is principal of Opposite Party No.1 as per Depository Act of 1996 asking them to take appropriate action for removing the suspension of their accounts. Opposite Party No.2 has failed to perform their duty as per Depository Act, 1996 and these amounts to deficiency in service on the part of Opposite Party No.2.
3) It is submitted that as there was no response even from Opposite Party No.2, the Complainant approached Opposite Party No.3 who are over all Regulatory Authority under SEBI Act, 1992 and also under Depository Act, 1996 for both the Opposite Parties. It is submitted that Opposite Party No.3 also has not taken any action for lifting of suspension of accounts. Opposite Party No.3 is bound to do so but Opposite Party No.3 has not taken any action therefore, it amounts to deficiency in service of Opposite Party No.3.
4) The Complainant has prayed to direct Opposite Party No.1 to lift the suspension immediately. It is further prayed to direct Opposite Party Nos.2 & 3 to force Opposite Party No.1 to do so forthwith. The Complainant has prayed for cost of this proceeding and compensation from the Opposite Parties.
5) Opposite Party No.1 have filed an application for framing preliminary issue U/s.9(A) of the Code of Civil Court, submitting that complaint is barred by principle of Res-judicata. According to the Opposite Party No.1, the Complainant has already filed complaint against Opposite Party No.1 of deficiency in service with respect of 3 demate accounts held with Opposite Party No.1. Subject matter of this complaint has already been decided by this Forum being Complaint No.173/2007 and an Appeal is pending before Hon’ble State Commission being Appeal No.1050/2009. Subject matter of this complaint is sub-judice before Hon’ble State Commission. Therefore, present complaint is not maintainable before this Forum. It is further submitted that complaint is not maintainable on the ground of double Jeopardy as no individual/corporation can be tried for the same ground of complaint twice arising out of same cause of action. Opposite Party No.1 has craved leave to file detail written statement, Opposite Party No.1 has requested to decide preliminary issued, regarding maintainability of complaint and dismiss the complaint.
6) Inspite of service with notice, Opposite Party No.2 has not appeared before this Forum. Therefore, on 10/06/2010 ex-parte order was passed against Opposite Party No.2.
7) Opposite Party No.3 has filed written submissions and thereby resisted claim of the Complainant contending interalia that complaint against Opposite Party No.3 deserves to be dismissed. It is submitted that Opposite Party No.3 – SEBI is established under Securities and Exchange Board of India Act, 1992 for performing statutory functions assigned to it under the said Act as such, Opposite Party No.3 cannot be said to be rendering any services for consideration as contemplated U/s.2(o) of the Consumer Protection Act, 1986. By referring the decision of the Hon’ble National Commission in the matter ‘Gauhati Co-operative Urban Bank Ltd. & Anr. V/s. Santosh Kumar Tewari & Others, III (1997) CPJ 68 (NC)’ it is submitted that ‘hiring of services for consideration is condition precedent to make a person a consumer’ within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act. SEBI is statutory body set up by an Act of Parliament and it does not render any services for fees or receives any consideration for the services as defined in Consumer Protection Act, 1986. In view of the aforesaid facts, Opposite Party No.3 requested to delete name of Opposite Party No.3 from this proceeding.
8) Ld.Avocate, Mr.Modi for the Opposite Party No.1 has submitted that the Complainant has already filed complaint on the same cause of action against Opposite Parties before this Forum which was partly allowed and it was challenged in an appeal by Opposite Party No.1. During pendency of appeal, the Complainant has filed the complaint on the same cause of action against Opposite Party No.1 and therefore, present complaint is not maintainable. He has requested to decide preliminary issue regarding maintainability of complaint. The Complainant No.1 Mr.Ramchand J. Uttamchandani has submitted that provisions of Civil Procedure Code, Section 9 are not applicable to this proceeding under the Consumer Protection Act and preliminary issue cannot be raise and decided regarding maintainability of the complaint therefore, application filed by the Complainant be rejected. The Complainant has also filed written argument.
9) Hon’ble Supreme Court in the matter New India Assurance Co.Ltd. V/s. R. Shrinivasan reported in 2000(1) SCR 1288 have decided similar issue. In the aforesaid case similar question was raised before the Hon’ble Supreme Court regarding maintainability of complaint and the Hon’ble Supreme Court has held that “we cannot also lose side of the fact that a Complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw Opposite Party to the State or National Commission and then have complaint dismissed for default. He may repeat the exercise again only to harass the defendant. This practice, or put it little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the of abuse of the process available under the Act. They can in that situation, legitimately invoke principles of Order 9 Rule 9 of C.P.C.”
10) In view of the allegation made by the Opposite Party No.1 and considering the aforesaid decision of the Hon’ble Supreme Court, we think it just to frame preliminary point as regards the maintainability of the complaint.
Point No.1 : Whether present complaint is maintainable in view of decision of earlier Complaint No.173/2007 filed by the
Complainant against Opposite Party Nos.1 & 2 ?
Findings : No
Point No.2 : What order ?
Findings : Complaint is dismissed.
Reasons :
Point No.1 : Following facts are admitted fact that present Complainant No.1 Ramchand J. Uttamchandani had filed complaint no.173/07 against Opposite Party No.1 & 2. Opposite Party has produced photo copy of the aforesaid complaint. Correctness of the same is not disputed by the Complainant. It is averred in the Complaint No.173/07 in para no.2 filed by the Complainant that “On 17/05/2000 and 24/06/2000 I alongwith my two daughters & son jointly opened two accounts and myself being the First Holder therein, under A/c. Nos.10076452 and 10078425 as per the agreement duly signed by us in the format approved by Opposite Party No.2 on non judicial papers of Rs.20/- each.”
In the prayer clause of Complaint No.173/07 the Complainant has prayed to direct “Opposite Party No.1 be direct/order immediately defreeze my both accounts unconditionally.
It is admitted fact that by order dtd.27/07/2009 this Forum had partly allowed this complaint and directed Opposite Party No.1 to immediately defreeze of the shares of the Complainant without taking any service charges. Photo copy of the aforesaid order is produced by Opposite Party.
It is also admitted that the Opposite Party No.1 – Indian Overseas Bank being aggrieved by aforesaid decision had preferred an appeal bearing no.1050/2009 before Hon’ble State Commission. During pendency of the appeal the Complainant has filed this complaint before this Forum on 25/02/2010. It is submitted by Ld.Advocate –Mr.Modi that Hon’ble State Commission has decided Appeal No.1050/2009 by order dtd.26/04/2010. Ld.Advocate for the Opposite Party No.1 has produced photo copy of the aforesaid order of order dtd.26/04/2010. Hon’ble State Commission by order dtd.26/04/2010 has allowed the Appeal preferred against order dtd.27/07/09 passed by this Forum.
Ld.Advocate for the Opposite Party No.1 has referred to the averments made in the present Complaint No.46/2010 and averments made in the earlier Complaint No.173/07 and submitted that the Complainant had filed complaint earlier Complaint No.107/07 in respect of demate A/c. Nos.10076452 & 10078425 opened by the Complainant jointly alongwith his two daughters and son with Opposite Party No.1. Present complaint is also filed in respect of aforesaid two accounts bearing No.10076452 & 10078425 opened by the Complainant jointly alongwith his two daughters and son with Opposite Party No.1. It is pointed out that earlier complaint was filed by the Complainant Ramchand J. Uttamchandani. In the title of present complaint names of 4 Complainants are stated at title of complaint. First name is of Ramchand J. Uttamchandani. The Complainant has joined his two daughters, Sheela R. Uttamchandani & Sonia R. Uttamchandani and son, Ritesh R. Uttamchandani as co-complainant. However, the complaint is singed only by the Complainant No.1 – Ramchand J. Uttamchandani. Nowhere, in the complaint, the Complainant has stated about relationship of First Complainant without other Complainants Nos.2-4. Further nowhere it is stated that that Complainant Nos.2-4 have authorized complainants to file present complaint on their behalf. It is further submitted that in this complaint, the Complainant has prayed to direct Opposite Party No.1 to lift suspension immediately. In earlier complaint no.173/07 the Complainant had made some prayer by requesting to direct Opposite Party No.1 to immediately defreeze his both accounts unconditionally. It is vehemently submitted that subject matter of the present case and earlier complaint no.173/2007 is the same so also cause of action mentioned in both the complaint is the same. Parties in both the complaint are same. Earlier complaint was partly allowed by this Forum. However, in appeal, order passed by this Forum is set aside. Ld.Advocate referred to following observations made by the Hon’ble State Commission in Appeal No.107/2007. It is observed by the State Commission that “If the Complainant had any grievance about such banking practice, then he had remedy elsewhere. Besides that, admittedly, the services of the Bank in respect of Demat Account in question were hired for commercial purpose since trading in shares is nothing but a commercial transaction and as such the Complainant cannot be a ‘Consumer’ within meaning of Consumer Protection Act, 1986 for which a reference can be made to the recent judgement of the Apex Court in the case of Economic Transport Organisation V/s. Charan Spinning Mills (P) Ltd. & Anr., 2010 CTJ 361 (SC)(CP).”
Ld.Advocate Mr.Modi for Opposite Party No.1 has vehemently submitted that in respect of the transaction mentioned in this complaint, the Hon’ble State Commission has clearly held that ‘the Complainant is not a Consumer.’ It is further submitted that the Complainant Ramchand J. Uttamchandani is inhabit of filing frivolous complaint only with intention to harass Opposite Parties and therefore, complaint is not maintainable and deserves to be dismissed with cost.
The Complainant Ramchand J. Uttamchandani has not disputed the fact that he had filed Complaint No.173/207 against present Opposite Party Nos.1 & 2. He has admitted that appeal preferred against order passed in a Complaint No.173/07 is allowed by the Hon’ble State Commission. As regards, the afore cited observations made by the Hon’ble State Commission in the judgement Complainant Ramchand J. Uttamchandani submitted that the observations are not correct and order of the Hon’ble State Commission is not based on the facts. It is submitted that subject matter of this complaint is different than earlier complaint. He has requested to not to take into consideration observation made by the Hon’ble State Commission and reject the application filed by the Opposite Party No.1.
As discussed above, the Complainant Ramchand J. Uttamchandani has filed earlier complaint bearing no.173/2007 before this Forum in respect of his two accounts bearing nos.10076452 & 10078425 with Opposite Party No.1 and prayed to direct Opposite Party No.1 to defreeze accounts immediately. He has filed this present Complaint No.46/2010 in respect of aforesaid two accounts with Opposite Party No.1 Bank and made similar prayer to direct Opposite Party No.1 to lift suspension immediately. In this complaint, the Complainant has joined 3 other Complainants but this complaint is singed by only Ramchand J. Uttamchandani. Nowhere it is stated in the complaint that Complainant Nos.2,3 & 4 have authorized Complainant No.1 to file this complaint on their behalf. Parties and subject matter of this complaint and earlier Complaint No.173/07 is the same. Cause of action mentioned in both the complaint is also same. We do not find any substance in the contention raised by the Complainant that subject matter of this complaint is different. Present complaint is filed during and after decision of earlier complaint and during pendency of Appeal No.1050/2009. Therefore, present complaint is barred on the principle of Res-judicata. Further it is to be noted that in Appeal No.1050/2009 Hon’ble State Commission in respect to the transaction in question have clearly held that the Complainant have availed services of Opposite Party No.1 Bank for commercial purpose and as such, the Complainant is not a Consumer. The aforesaid finding given by the Hon’ble State Commission is binding on this Forum. Considering aforesaid fact, we hold that present complaint is not maintainable and deserves to be dismissed. Hence, we answer point no.1 in the negative. Therefore, we pass the following order -
O R D E R
i.Complaint No.46/2010 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the party.
