Complainant by filing this complaint has submitted that the complainant have been provided stock broking services by Kanahaya Lal Rathi HUF formerly named as Surya Finance, at 9, Old China Bazar Street, 2nd Floor, Room No. 28, P.S.- Hare Street, Kolkata – 700001 since December 2004 which is taxable service under the service under the Service Tax Act 1994 that the complainant has not yet received Rs.6,850/- against an advance payment of Rs.13,700/- made by cheque vide No.158717 dated 09.01.2008 on Canara Bank, S.B. A/C No. 7478 for purchase of 2000 equity shares of M/s. Aravinda Remidies Ltd. @ Rs.6.85 per share inclusive of all expenses. But ops delivered only 1000 shares at a total cost of Rs.6,850/- traded on 08.01.2008 and transferred to the demat account on 16.01.2008 as per bill vide No.179 dated 18.07.2008 which was handed over to the complainant in 1st week of August, 2008 after repeated request. But complainant had not yet received Rs.1,960/- against another advance payment of Rs.49,400/- made by cheque No.533472 dated 02.06.2008 on Canara Bank, S.B.A/c No.7478 for purchase of 200 equity share of Reliance Power Ltd. The ops delivered the above 200 shares at a total cost of Rs.47,400/- (@ Rs.237.20/- per share) inclusive of all expenses on instruction over the telephone by the complainant in support of which a bill vide No.16 dated 06.06.2008 which shows the share traded on 02.06.2008 and transferred to demat account of the complainant on 04.06.2008 and payment on account adjustment of the above bill was handed over to the complainant along with the bill of Aravinda Remedies Ltd. together at a time in 1st week of August, 2008. Fact remains that two excess payment of Rs.6,850/- and Rs.1,960/- had been detected by the complainant after annual reconciliation of accounts of payments with all transactions with the ops on 30.11.2008 and informed to the ops immediately and ops acknowledged the above excess payments after verifying their books of accounts and had given assurance for refund of the same after inquiry whether the another 1000 share of Aravinda Remidies Ltd. was pending in the pool for transfer through electronic mode or not. But complainant was surprised and alarmed when he saw the 200 shares of Reliance Power Ltd. was not in his demat account but transferred without his knowledge to an unknown demat account No.10161767 belongs to a Depository Participant Company named Eureka Stock & Share Broking Services on 17.06.2008 when complainant went to his Depository Participant Company, M/s Dayco Securities Pvt. Ltd. for enquiry regarding other 1000 shares of Aravinda Remidies Ltd. whether it was pending to transfer in or not to his demat account. That it had been revealed after scrutinisation of instruction book, the ops fraudulently taken the 200 shares of Reliance Power Ltd. in to their demat account using one of the signed instruction slip out of two signed slips of the instruction book given by the complainant on good faith and on their direction to the ops when the complainant had gone to perform his outstation job during that period, for sale of JSW Steels Ltd. and Nevely Lignite Corporation Ltd. on instruction over the telephone when the market rate would become expected higher. Complainant rushed to the ops immediately, boldly opposed their heinous act and reminded the dire consequence of their aforesaid offence. The ops gave the shares of Reliance Power to the complainant’s demat account on 04.02.2009 when the market price of the shares was Rs.19,960/- (Rs.99.80 per share), but the ops were silent on the question of refund of excess payments of Rs.6,850/-, Rs.1,960/- and Rs.27,480/- (differential price of 200 shares of Reliance Power Ltd.). Under the above situation and prolonged harassment and non-payment of his claim by the ops complainant as consumer has filed this complaint and complainant in fact have invested the money in shares as an alternative to invest in banks, mutual funds, and other financial scheme for higher gains, from his savings by hardly livings from his earning to earn something more to fill some financial needs according to his level and not for commercial purpose. For non-payment of the claim of complainant in spite of repeated representation before the ops is an unfair trade practice and deficiency of service and also it is deceptive service on the part of the ops and for which the complainant filed this complaint for directing the op to refund Rs.6,850/- + Rs.1960/- + Rs.27,480/- along with interest @ 14% p.a. and also compensation for unfair trade practice and harassment etc. On the other hand the op by filing written statement on 06.05.2013 has submitted that the complainant has no cause of action to file this case against the op and the matter is time barred and further all necessary parties have not been included and this Forum has no jurisdiction to adjudicate this matter. Further submitted that advance payment of Rs.13,700/- received by the op vide cheque No.158717 dated 09.01.2008 for purchase of 2000 equity shares of M/s Aravinda Remedies Ltd. @ Rs.6.85/- per share and 1000 shares were delivered. Advance payment of Rs.49,400/- was received vide cheque No.533472 for purchase of 200 equity shares of M/s Reliance Power Ltd. 200 equity shares were delivered at a cost of Rs.47,400/-. On the basis of authorization slips of the complainant 200 shares of M/s Reliance Power Ltd. was transferred to M/s Eureka Stock and share Broking Services on 17.06.2008 and those shares were again transferred to the demat account of the complainant. So the question of taking advantage of two signed slips of the complainant in good faith does not arise. Before transfer of the shares, M/s Dayco Securities Pvt. Ltd. call customer for verification and complainant did not give any objection to the transfer of the shares and the shares would not have been transferred if no instruction was made. Moreover in every month customers got statements of holding of shares with the company from August to February, 2009 and the complainant did not make any correspondence with the agent nor with this op. So, the claim of the complainant that the shares were transferred without his consent is not tenable and further it was submitted as the share has already been transferred to the complainant and the question of giving difference of value does not arise. It is further submitted that u/s 2(1)(d) of the C.P. Act, the complainant must be a consumer, but a person cannot be a consumer if he obtains goods for resale or for any commercial purpose and the complainant purchased shares of different companies for the purpose of resale and for commercial purpose and he did not adduce sufficient evidence to prove that he bought the shares of the companies for the purpose of earning his livelihood by means of self-employment, on this ground itself the complaint is liable to be dismissed. It is further alleged that 200 shares of Reliance Power Ltd. was transferred to M/s Eureka Stock and share Broking Services on 17.06.2008 without the consent of the complainant, but the complaint was filed in the DCDRF Unit-II on 08.03.2011 and no petition was filed under Section 24A(2) for condo nation of delay. Hence, the complaint is liable to be dismissed being time barred and the claim of compensation has also been made excessive and such claim is not admissible without sufficient proof. Moreover the present complaint is barred by principle for which the complaint should be dismissed. Decision with reasons On overall evaluation of the argument as advanced by the parties personally and their Ld. Lawyers and also considering the complaint including the order sheet it is clear that the present complaint was initially filed on 08.03.2011 and ultimately the case was proceeded. But from the complaint itself it is found that the complainant has claimed excess payment in respect of bill No.179 dated 18.07.2008 having an amount of Rs.6,850/-, another amount of Rs.1,960/- in respect of advance amount of Rs.49,400/- paid on 02.06.2008 and lastly the amount of Rs.27,480/- in respect of the transaction dated 17.06.2008. So, considering the date of payment of the amount on 18.07.2008, 02.06.2008 and 17.06.2008 it is found that against the said payment complainant prayed for refund of differential price of 200 shares of Reliance Power Ltd. i.e. Rs.27,480/- and Rs.1,960/- in respect of advance payment of Rs.49,400/- paid on 02.06.2008 and Rs.6,850/- against payment of Rs.13,700/- as on 09.01.2008. Fact remains that complainant is a member of share trading business and the refund is in respect of non-purchasing the shares even after receiving huge amount. So, apparently complainant’s cause of action arose on receipt of the final account in respect of share trading i.e. on and from 04.02.2009. So, complainant ought to have filed the present complaint by 04.02.2011. But anyhow this complaint was filed after expiry of two year from the date of cause of action and when that is the fact then invariably at the time of filing this complaint, complainant ought to have filed an application u/s 24A of the C.P. Act 1986 for condo nation of delay but no condonation of delay was filed by the complainant for condonation of delay before admission of the present complaint. So, apparently the present complaint is time barred as per provision of Section 24A of C.P. Act 1986 and for which under any circumstances the complainant is not entitled to get any relief in this Forum as the complaint is time barred and as per provision of Section 24A of C.P. Act 1986 it is not maintainable as it is time barred and also on account of no condonation of delay was filed along with complaint for condonation of such delay. In the result, the complaint fails. Hence, it is ORDERED That the complaint be and the same is dismissed on contest but without any cost against the ops.
| [HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER | |