MRS. NEENA SANDHU, MEMBER
1. This is an appeal filed by the complainant against order dated 20.11.2009 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 245 of 2009.
2. The brief facts of the case are that the complainant is a permanent resident of India and holding a valid passport of USA. It was submitted by the complainant that being lured by the representations made by OPs about Kotak Reality Fund Ltd. Scheme floated by OP-1, initially the complainant invested US$6000 on 18.10.2007 and without disclosing that the said scheme was meant only for NRIs and not Indian Residents and subsequently remittances were also made as the complainant was allured by OPs No.2 and 3 who persisted him to invest in this fund. The complainant invested a total amount of US$96000 with OP No.1 between October, 2007 and August, 2008. The grouse of the complainant was that at the time of investment the OPs No.2 and 3 have not disclosed to the complainant about this fact that the above said investment was meant only for NRIs and even the constitution of fund i.e. ISOFL (India Select Opportunities Fund Limited), which was promoted by the Kotak Group in India (OP No.1) was not shared with him and the same was made available to the complainant only after three months of his investment after thorough scrutiny of his application by OPs No.2 & 3. Due to this reason, the complainant was disqualified for the investment in the scheme floated by OP No.1 and on the persistent requests of the complainant, he was refunded only a sum of US$80000 and the balance/ principal sum of US$16000 was deducted without any explanation. The above said act of the OPs amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.
3. Reply filed by OPs in which Ops submitted that marketing and promotion of ISOFL was not done by OP No.1 i.e. Kotak Investment Advisers Ltd. and this fund was set up outside India to invite investments solely from NRIs/Other Offshore investors, for the purpose of making an investment in India Realty Fund Ltd., a closed end fund incorporated in Mauritius as a Public Limited Liability Company and was being regulated by the Financial Services Commission, Mauritius and the same was not being marketed and promoted in India and denied all allegations regarding allurement, projections, misrepresentation and marketing etc. of the said scheme. It was pleaded that the complainant was earlier holding a NRI Savings Bank Account with Kotak Mahindra Bank Ltd and submitted the documents in respect of his being an NRI to the Bank at the time of opening the account, which were not denied by the complainant. It was further pleaded that in February 2009 the complainant informed that his status had been changed from NRI to that of a Resident Indian and therefore, requested the bank to close his NRI account. It was denied that the Ops were liable to provide any service in respect of the said fund to the complainant. Hence, there was no deficiency in service and unfair trade practice on the part of OPs and prayed for dismissal of the complaint with exemplary costs.
4. The parties led their evidence in support of their contentions.
5. The District Forum dismissed the complaint as there was no merit in the complaint.
6. Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant. We have gone through the grounds of appeal, perused the impugned order passed by the learned District Forum, also perused the documents and after hearing Sh.Deepak Aggarwal, learned counsel for the appellant, we have observed that the complainant invested the amount being an NRI in Kotak Reality Fund Scheme Limited. From the name of the scheme and from the papers appended with the complaint as per investment objectives of the fund, it is stated that the fund has been established to invest in equity, equity-related and/or debt securities in real estate and real estate-related projects and companies across India which clearly goes to prove that the investment made by the complainant was in mutual fund/fund and not in real estate. The value of the fund would have fluctuated with the market value of the investments made by the fund. It is a clear cut case of speculative investment in fund and it cannot be termed as investment of money in real estate. We are of the view, that learned District Forum has rightly dismissed the complaint as in the case of Unit Trust of India Vs. Sabitri Devi Aggarwal, II(2000) CPJ 4. It was held by Hon’ble National Commission that the Consumer Protection Act, 1986 does not entertain or compensate such transactions or losses that are only hypothetical and speculative in nature. As in this case the transactions are of speculative nature, which is outside to purview of the Consumer Protection Act, 1986. Therefore, we dismiss the appeal in limini without going into the merits of the case. We order accordingly.
7. Copies of this order be sent to the parties, free of charge.
Pronounced.
4th March, 2010.
