MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The present Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the Complainant against the judgment and order dated 28.1.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.Case No. 72 of 2011, dismissing the Complaint on the ground of the Complaint being time-barred.

          After filing the instant Appeal the Appellant/Complainant has filed Misc. Application bearing No. MA/456/2016 praying, among others, for replacement of the words ‘Section 25’ by ‘Section 15’ as also for replacement of the words ‘239 days’ by ‘232 days’ in the Memo of Appeal, the hearing of which has been taken up along with the instant Appeal.

          The facts of the case, as emerging from the materials on records, are, in short, that the Appellant/Complainant made payment to the Respondents/OPs of Rs. 13,700/- in advance by Cheque No. 158717 dated 9.1.2008 and further Rs. 49,400/- by Cheque No. 533472 dated 2.6.2008 drawn on Canara Bank for purchase of 2000 equity shares of M/s. Aravinda Remedies Ltd. and 200 equity shares of Reliance Power Ltd. respectively for earning ‘something more’ and ‘higher gain’ as averred in the Petition of Complaint.  But in the former case, the Respondents/OPs delivered on 16.1.2008 only 1000 shares out of 2000 shares at a cost of Rs. 6,850/-, leaving a refundable amount of Rs. 6,850/-, and in the later case delivered on 4.6.2008 200 shares at a cost of Rs. 47,440/- leaving a refundable amount of Rs. 1,960/-.  After delivery of such shares when the Appellant/Complainant enquired into his Demat A/c, he came to know that 200 shares of Reliance Power Ltd., which were delivered to his Demat A/c on 4.6.2008 were further transferred on 17.6.2008 to Demat A/c of an unknown company named as Ureka Stock & Share Broking Services without any information to him as also without payment of Rs. 27,480/- being the differential price of the said shares which were returned to the Demat A/c of the Appellant/Complainant on 4.2.2009 as averred in the Petition of Complaint.   Thus the Respondents/OPs did not refund to the Appellant/Complainant Rs. 6,850/- plus Rs. 1,960/- plus Rs. 27,480/- despite waiting for a long time as alleged in the Petition of Complaint.  With this factual background, the Complainant moved the Complaint before the Ld. District Forum which passed the order impugned dismissing the Complaint on the ground of the Complaint being time-barred as mentioned at the outset.

          The Appellant/Complainant, who appears in person, filing BNA, submits that the impugned judgment and order is bad in law as the Ld. District Forum passed the order without correctly appreciating the facts on records.

          The Appellant/Complainant further submits that the failure on the part of the Respondents/OPs to pay back to him till the date of filing the Complaint concerned Rs. 6,850/- plus Rs. 1,960/- plus Rs. 27,480/-, as referred to hereinbefore, despite vigorous pursuance, constitutes deficiency in service and unfair trade practice on the part of the Respondents/OPs.

          The Appellant/Complainant also submits that in view of the fact of the case, the instant Appeal should be allowed and the impugned judgment and order be set aside and the Complaint be restored for adjudication afresh.

          On the contrary, the Ld. Advocate for the Respondent No. 1/OP No. 1, filing BNA, submits that it is the settled principle of law that the transaction for purchase of shares, as in the case on hand, is indicative of commercial activities and if such commercial activities are not for earning livelihood of the Complainant exclusively by means of self-employment, then the purchaser of shares does not fall within the definition of  ‘consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986.

          The Ld. Advocate further submits that the Appellant/Complainant being a Cost Accountant by profession, as evident from the Answer by the Appellant/Complainant to the Questionnaire by the Respondents/OPs, does not deal in shares for the purpose of earning livelihood exclusively by means of self-employment and hence, the Appellant/Complainant does not come within the purview of the Consumer Protection Act, 1986.

          The Ld. Advocate finally submits that in view of the aforesaid submission, the instant Appeal should be dismissed and the judgment and order impugned be affirmed.

          In reply to the aforesaid submission by the Ld. Advocate for the Respondent No. 1/OP No. 1, the Appellant/Complainant submits that the transactions in question are not for commercial purpose as alleged by the Ld. Advocate for the Respondent No. 1/OP No. 1 as the transactions were done with a view to meeting the financial needs of the Appellant/Complainant.

          None has appeared on behalf of the Respondent Nos. 2 & 3/OP Nos. 2 & 3.

          Nowhere in the Petition of Complaint is there any averment to the effect that the Appellant/Complainant was engaged in share trading business in question for earning his livelihood exclusively by means of self-employment to cover his case under inclusive Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986.  Rather, Answer by the Appellant/Complainant to the Questionnaire by the Respondents/OPs, as available on records (Running Page-88 of Memo of Appeal) conspicuously exhibits that the Appellant/Complainant being a Cost Accountant has other means of livelihood, indicating thereby that the share transactions in question are not for exclusive purpose of self-employment of the Appellant/Complainant and hence, the Appellant/Complainant is not covered within the inclusive Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986.  Again, Paragraph-2 of the Petition of Complaint reveals that the Appellant/Complainant dealt in shares to earn ‘something more’.

          The above facts and circumstances clearly indicate that the transactions involved in the case on hand are commercial activities and such commercial activities are not exclusively for the purpose of self-employment of the Appellant/Complainant and thus the Appellant/Complainant is not covered by inclusive Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986 and hence, the Appellant/Complainant does not fall within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986.  In this context, reliance is placed on a decision of the Hon’ble National Commission in M/s. Steel City Securities Ltd. Vs. G.P.Ramesh & Anr., decided on 3.2.2014 in Revision Petition No. 3060 of 2011, wherein it was held, “Respondents have nowhere pleaded in their complaint that they are doing the share trading business for self-employment nor it has been pleaded that the services provided by the petitioner are being availed exclusively for the purpose of earning their 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”.  The Hon’ble National Commission echoed the same view in Vijay Kumar Vs. Indusind Bank, reported in II (2012) CPJ 181 (NC ).

          In this view of the case, we refrain ourselves from expressing our views on other issues involved in the case.

          Accordingly, the instant Appeal is dismissed and the impugned judgment and order is affirmed.  No order as to costs.  The Misc. Application bearing No. MA/456/2016 is also disposed of along with this Appeal.