Date of filing  :  19-09-2009

                                                                                       Date of order :  27-07-2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                C.C. 136/09

                         Dated this, the 27^th   day of July 2010

PRESENT

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                       : MEMBER

SMT.P.P.SHYMALADEVI                             : MEMBER.

Santhosh Mathew,

S/o. Late.T.A.Mathew,

Thekkumkattil House,

Kaarattuvayal,                                                           } Complainant

Hosdurg Taluk& Post.

(Adv. T.M.Jose, Hosdurg)

1.  JRG Wealth Management Ltd,

     Represented by its Managing Director,            } Opposite parties

     Munish Dayal, JRG House,

     Ashoka Road, Kaloor, Kochi. 682 017.

(Adv. C.Damodaran, Kasaragod)

2. National Commodity & Derivatives,

    Exchange Ltd, 1^st Floor,

    Akurti Corporate park,

    L.B.S. Road, Kanjumarg(W)

    Mumbai.400 079.

(Ex-parte)

                                                                        O R D E R

SRI.K.T.SIDHIQ, PRESIDENT

            Case of the complainant is as follows:

            Complainant is a client of 1^st opposite party.  The opposite parties are providing service in the Commodity Market to its clients.  The complainant was keeping position of pepper with the NCDEX (National Commodity & Derivatives Exchange).  In order to keep margin money as per exchange terms complainant deposited 1,00,000/- rupees on 28-10-08 in JRG Wealth. Management account from his account maintained with Federal Bank, Beemanady Branch by noon and it is credited in the above account on t6hat day itself.  Apart from that the representative of 1^st opposite party  sent an e-mail to 1^st opposite party on 28-10-08 regarding deposit.  The e-mail  was sent at 5.45 PM because on that day the office will be opened at 6PM on account of Mauhurtha Trading  of Diwali which commences by 6-15 PM.   The amount required for keeping the position was around 85,000/- rupees.  But inspite of keeping  more than the amount necessary in his account,  1^st opposite party sold the position of the complainant on 28-10-08 in between 18.38 hours and 18.44 hours unauthorisedly causing loss to the complainant.  The complainant has been keeping 5mt to 7mt pepper on every day for 2 years.  In order to avoid compulsory sale of pepper he deposited 100000/- rupees on 28-10-08.  The rate of pepper has been gone higher day by day.  Thus the complainant had a loss of 1,25,700/- rupees on account of the sale of pepper held by the complainant and that amounts to deficiency in service.  To the letter sent to 1^st opposite party on 12-11-08 they sent an unsatisfactory reply to complainant.  Hence the complaint claiming compensation and cost of  the proceedings.

2,            Version of OP No.1.

            According to opposite party No.1 complainant is not a consumer since he is not dealing with the commodities for his livelihood and the transaction is purely commercial and only the civil court  at Mumbai has got territorial jurisdiction to adjudicate the case.  As per the rules by-laws and regulations of the opposite parties, complainant has a recourse to refer the matter for arbitration in case of disputes.  But without resorting such remedies available under the contract complainant filed this complaint.  On merits the contention of opposite party No.2 is that the mere crediting the amount 1,00,000/- rupees in their account is not sufficient for the purpose of transaction.  They have no confirmation of credit from the Bank inspite of their  best efforts to get confirmation of credit, due to error in net work credit  by the Bank.  From 25-10-08 onwards the complainant’s  account showed debit of 25,000/-rupees and on 28-10-08  debit scaled to 57,000/- rupees.  They cannot keep the position of the client without sufficient margin money and hence they compelled to sell the position as per terms and conditions of account.    Client purchases commodity can hold the position by keeping sufficient margin money depending on variation of price.  If the commodity is trading at a higher price than the purchase price of the client, then there is no need to keep any margin money, as against this if the price of the commodity is diminishing the difference has to be deposited with opposite parties to hold his position.  Otherwise it is the right of opposite party No.1 to sell the commodity and square off the position of the client.  The allegation of the complainant that on 28-10-08 before the commencement of trading a sum of more than 1,00,000/- rupees was in the credit of opposite parties is not correct.    28-10-08 was  a holiday  for opposite party No.1 on account of Diwali and Muhurtham Trading  on that day  was took place in between 6.15 PM to 7.30 P.M.  The sale of pepper was not unauthorized.  The complainant authorized them to sell the commodities as per the terms of contract in such situation. The loss alleged by the complainant is not correct Share and Commodity Market  are always subject to fluctuation resulting in huge profit and loss since it being a speculative business.  The allegation that Federal Bank and opposite parties has colluded as regards to the failure of interest to cause loss to the complainant is not correct.  The complainant is experimental in nature and it is liable to be dismissed.

3.            Summary of Version of Opposite party No.2.

            Opposite party No.2 sent their version through registered post.  According to opposite party No.2 complainant is not a consumer of opposite party No.2.  He has availed the services of opposite party No.1 for commercial purposes.  As per byelaw  6.3 the opposite party does not recognize as parties to any deal any persons other than its own trading member.  As per 6.1 of the Byelaw the city civil courts  in Mumbai shall have exclusive jurisdiction.  The complaint is bad for mis-joinder of parties since opposite party No.2 is an unnecessary party to the proceedings.  The complainant has not resorted to settle the dispute through  opposite party No.1 for commercial gains and when the prices have not been conducive to him he has chosen to file the complaint.  He has been trading in the normal course of his business activity  through opposite party No.1 for making profits.  Hence complainant is not a consumer.  The loss  calculated and claimed by the complainant are presumptive losses and not actual.  The opposite partyNo.1 is a member of opposite party No.2 is required to collect applicable margin money from his clients to meet the daily margin obligations for the traders proposes on behalf of his clients.  Opposite party No.1 is entitled to square off the positions of a client for insufficiency of funds to meet fund obligations.  The  opposite party No.2 does not have access to the account of any of the constituents of its members and thus is not aware of the fund position in the account of the complainant.  There is no deficiency in service on the part of opposite party No.2.  Hence complaint is liable to be dismissed.

4.         Complainant filed  proof affidavit in support of his claim.  Exts A1 to A6 marked on his side.  On the part of opposite party No.1 Exts B1 to B3 marked.  Both sides heard. The notes of arguments filed by the counsel for complainant is perused.

5.         The specific contention of both the opposite parties is that the complainant is not a consumer and the dispute is not a consumer dispute since complainant  is a trader of commodities  and his intention is to make profit.  As against  this contention the plea of the complainant is  that trading in the commodity market is his avocation and he is doing the trading for his livelihood.  But during cross-examination by learned counsel for opposite party No.1 Sri.Damodaran, complainant has stated that he is running a shop of hill produces at Vellarikkundu. This clinches the issue regarding the maintainability of the complainant.  The version of PW1 (complainant) makes it clear that the complainant had other   avocation for  livelihood and he is a trader of commodity in the exchange market to make earnings or profit.  Therefore he is outside the  scope of definition    ‘consumer’ as envisaged under the Consumer Protection Act.

6.         The further contention of opposite parties that complainant without exhausting the remedies available through arbitration proceedings resorted to file this complaint before the Forum and therefore the complaint lacks its  maintainability  is not sustainable, in view of the decision of the Hon’ble Supreme Court in the case of Sky park courier V. Tata Chemicals    reported  in (2000)5 SCC 294; AIR 2000(SC) 2008,  In that case the Honb’le apex court has held that the arbitration clause in an agreement is not  a bar to a proceeding under the Consumer Protection Act.

            On an overall appreciation of the facts and circumstances of the case, we are of the opinion that though the complainant has got a good case on merits, his remedy lies elsewhere and not before the Consumer Forum since he is not a consumer as defined under the Consumer Protection Act.  Hence the complaint is dismissed as not maintainable  giving liberty to him to approach competent authority to adjudicate the case.  If the complainant  chooses to initiate such a proceeding for the belief claimed in these proceedings he can do so according to law and in such case he can claim the benefit of Sec 14 of the Limitation Act to exclude the period spent  in prosecuting this proceedings while computing the period of limitation prescribed for  such proceedings as per law.  In the circumstances there is no order as to costs. 

      Sd/-                                                        Sd/-                                                     Sd/-

MEMBER                                                       MEMBER                                           PRESIDENT

Exts.

A1.11-11-08 Statement of Account

A2. 12-11-08 Copy of letter.

A3. 19-11-08 reply sent by opposite party No.1.

A4. 9-12-08 letter  sent by Customer Service Group to Santhosh Mathew.

A5. 12-2-09 letter sent by National Commodity & Derivatives Exchanges Ltd to Santhosh

       Mathew.

A6.24-02-09 .letter sent by National Commodity & Derivatives Exchanges Ltd to Santhosh    

      Mathew.

B1.Account opening form.

B2. Transaction Statement.

B3.Letter from Federal Bank.

PW1. Santhosh Mathew.

     Sd/-                                                          Sd/-                                                Sd/-

MEMBER                                                       MEMBER                                           PRESIDENT

Pj/

                                                                                    Forwarded by Order

                                                                          SENIOR SUPERINTENDENT