Complainant by filing this complaint has submitted thatcomplainant and his wife Mrs. Swapna Roy opened two trading accounts in the ops’ bank (Account codes being 07R084 and EBSB0944 respectively) as is customary before the purchase or sale of any securities and complainant and his wife were duly informed and intimated by op no.1 that it is only after the complainant’s consent that any action, be it purchase or sale, of such securities would be carried out.  But IVRCL Ltd. securities were purchased from the accounts of the complainant and his wife by the op no.1 and op no.1 is authorized branch of op no.2 located at Kolkata and op no.2 is the Head Office of the Bank in question, with its office in Mumbai, Maharashtra.

          In fact despite the complainant’s unwillingness and reservations to such a transaction, the securities were subsequently sold at later date and the complainant incurred a loss on such transaction and it is pertinent to mention here that the acts of the ops’ executives is in clear breach of the fiduciary relation between the ops and the complainant and also tantamounts to fraud in suitable provisions of law.

          Even after repeated follow ups with the customer care executives of the ops’ and informing them time and again about the terms of opening the bank account as mentioned above, they have remained mum about the entire episode and in spite of all the efforts by the complainant, the line at the ops end has been silent.  Though complainant tried to communicate with the ops for sometime now but there has been no response from their side and for the dishonest service made by them and for an act of negligent manner of service, the complainant has suffered much and no doubt it is the deficiency of service for which the complainant as a consumer has filed this complaint considering for directing the ops to refund the amount of Rs. 3,50,000/- and further compensation etc.

          On the other hand op nos. 1 & 2 by filing written statement submitted that they have always cooperated with the complainant and have acted in bona fide discharge of its duties and further it is submitted by the ops that as per settled norms and principles no securities are purchased or sold without the consent of the customers and the matter is also no exception to this general rule and as per telephonic consent of the complainant the said securities were purchased and sold subsequently by the ops.  Further after the purchase and sale of the said securities the complainant has received an SMS confirmation of the same as well as ‘contract note’ via e-mail.  If the complainant did not consent to the said purchase or sale then he could have immediately raised dispute on receiving the SMS and e-mail.  But the complainant raised dispute for the first time only on 17.02.2014.

          So, it is clear that the complainant is now raising those false allegations only to cover up his loss by putting the blame on the ops.  Moreover the complainant is not a consumer because he is a trader in selling and purchasing securities and all other allegations are denied by the ops and prayed for dismissal of this case.

Decision with reasons

          On proper consideration of the complaint and written version of the op and also considering the argument as advanced by both the parties, it is clear that in respect of all transaction SMS information was forthwith given at the same time details history of sale and purchase was forthwith informed. Now question is whether complainant is a consumer or not which is a vital question in this case because it is admitted by the complainant that they no doubt  in a trade of selling and purchasing of the shares and no doubt ops acted as his broker. 

So, it is clear that complainant did not invest the money only for getting interest.  But in respect of share trading risk is everywhere and it depends upon the market price and further it is found that there are documents that complainant started this business share selling and trading long back.  But there was no grievance but when he faced some financial loss due to market, he filed this complaint against the op stating that op did not sell and purchase the same without taking his consent.  But the truth is that complainant is a trader in selling and purchasing shares only for getting high rate of profits from the market.  Everything is done by security agent that is the ops.  If there is any problem in between the trader and the broker in that case the matter shall be decided by the Civil Court not by the Consumer Forum.  In view of the fact that complainant is admittedly a trader of selling and purchasing the shares for getting more benefit and for which they cannot claim as a consumer under the op and fact remains that after considering the papers as produced by the op, it is found that all the transactions were reported forthwith by the ops who deals the transaction which were not sent through email but complainant was sitting idle.

Another factor is that in the agreement it is noted that the security market are subject to market risk and all the stated risk are duly apprised to the complainant vide Risk Disclose Document (RDD) as prescribed by SEBIas part of account opening documentation and as per provisions of said agreement investors are also advised to use their own independent judgement with respect to risk and consequences arising out of such investment and considering that picture we are convinced to hold that the entire investment was made by the complainant for trading purpose for more benefit knowing fully well about the risk factor in the market.

So, in the light of the above observation we are convinced to hold that this complainant is not a consumer as per provision of C.P. Act and the transaction is completely a trading transaction maintained by the complainant through their brokers’ op.  So, under any circumstances, as per C.P. Act, complainantis not a consumer in the eye of law for which the present dispute cannot be decided by this Forum and Forum has no jurisdiction to decide the same when the entire transaction is for commercial purpose or trading purpose and so the present complaint bears no merit in the eye of law.

Hence, it is

ORDERED

That the complaint be and the same is dismissed on contest against the ops but without any cost as present complaint is not maintainable in view of the fact that complainant is not a consumer and his transaction is not for any other purpose but for trade.