Iex rem Associates for the Complainant
Opponent No.1 exparte
Likhit Gandhi & Associates for the Opponent No.2.
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 6th April 2013
This complaint is filed by a house-wife against the share-broker and company. Brief facts are as follows-
[1] The complainant is a house-wife. She is unaware about the stock-exchange. She has no source of income. Her husband is in the service of Tata Telecom at Mumbai. The Opponent No.1 is dealing in the business of conducting coaching classes about stock-market. The complainant made inquiry about the said coaching classes. He had represented that she can took admission for the said course and in the coaching class. She had believed the representation made by the Opponent No.1 and joined the class. He had asked all the students to open DMAT account and Trading Account with the Opponent No.2. The Opponent No.1 represented the complainant that if she had invested the amount in the market she will get 5% amount on monthly basis and the invested amount will be returned within one year. The Opponent No.1 misrepresented that the Opponent Nos. 1 and 2 are Licensed Discretionary Port Folio Manager with SEBI. Hence complainant had invested huge amount of Rs.2,00,000/- as per the assurance given by the Opponent Nos. 1 and 2. She had received Rs.1,05,000/- upto February 2012 but she had not received interest on the said amount as agreed. She has claimed the balance amount and interest to the tune of Rs.1,21,770/-. She has further asked punitive damages of Rs.10,50,000/-. She has also claimed real damages, general damages, contemptuous damages to the tune of Rs.5,50,000/-. The total claim of the complainant is Rs.18,41,770/-.
[2] The Opponent No.1 though duly served vide public notice remained absent. Complaint proceeded exparte against the Opponent No.1.
[3] The Opponent No. 2 resisted the claim by filing written version. It has denied the contents of the complaint in toto. According to the Opponent No.2 it is registered with SEBI. This complaint is not maintainable under the Consumer Protection Act, 1986 as it requires elaborate evidence and detail inquiry. It is also contended that the complainant is not a ‘consumer’. Hence she is not entitled to get any relief by filing complaint under the Consumer Protection Act, 1986. It is further contended that the complainant was aware that in share market there can be losses and profits. The complainant herself traded in the account and she alone is responsible for the profits and losses. The Opponent No.2 has not received Rs.2,00,000/- as alleged. It has prayed for dismissal of the complaint.
[4] After considering the documentary evidence which is produced on behalf of complainant and the Opponent No.2, written argument of the opponent No.2 and hearing the argument of learned Advocate for the Opponent No.2 following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant is ‘consumer’ as contemplated u/s 2(1)(d) of the Consumer Protection Act, 1986 ? | In the negative |
2 | Whether the complicated questions which are involved in the dispute between the parties can be adjudicated in the Consumer Forum ? | In the negative |
3 | What order ? | Complaint is dismissed |
REASONS –
Point Nos. 1 to 3-
On the date of hearing the complainant as well as her Advocate remained absent. Hence the complaint is decided on merit on the basis of the material which is produced by both the parties as well as hearing the argument of learned Advocate for the Opponent No.2. It reveals from the documentary evidence which is produced on behalf of the complainant that complainant had entered into an agreement with the Opponent No.1 who had pretended as Port Folio Manager who is dealing in the transaction of stock market, other documents which are executed by the complainant and the dishonoured cheques which were issued on behalf of the Opponents. Complainant has also produced correspondence between herself and the Opponent No.1. On behalf of the Opponent No.2 the Statement of Accounts for the year 2010-2011, 2011-2012 and 2012-2013 have been produced.
The first objection which has been raised on behalf of the Opponent No.2 is that the dispute before the Forum is involving complicated questions such as selling and purchasing of shares which requires detailed inquiry as well as evidence which is not contemplated under the Consumer Protection Act, 1986 and this dispute cannot be resolved on the basis of affidavit. The inquiry before the Forum is summary inquiry and detailed evidence is not expected before this Forum. The second limb of argument of learned Advocate on behalf of Opponent No.2 is that this transaction is relating to the selling and purchasing of the shares. It is commercial transaction and as per section 2(1)(d) of the Consumer Protection Act, 1986 there is exception provided for ‘commercial transaction’. As per the said provision the person who is dealing in commercial transaction is excluded from the definition of ‘consumer’. Eventhough it is pleaded by the complainant that she is a house-wife and she is not doing anything the intention of investing the amount in share-market itself is sufficient to held that she is intending to get profit from the share-market. The averments in the agreement between the complainant and the Opponent No.2 are also sufficiently eloquent as regards the intention of the parties. The complainant had expecting more and more profit in the business of shares. Hence she had invested Rs.2,00,000/- with the Opponent No.1. Hence I held that questions which are involved in the present dispute require detail inquiry and evidence as well as thorough investigation. The dispute is as regards ‘commercial transaction’ and the complainant is not a ‘consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. The dispute in which complicated question are involved can be resolved in the Civil Court and the complainant is entitled to get relief in the Civil Court by excluding the period which had been spent in this Forum while computing limitation.
In such circumstances I answer points accordingly and pass following order-
:- ORDER :-
1. The complaint is dismissed.
2. As per peculiar circumstances there is no order as to costs.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 06/04/2013
[S. M. Kumbhar] [V. P. Utpat]
Member President
