1.     This is an appeal filed by the complainant against order dated 4.2.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No.760 of 2008.

2.        Briefly stated the facts of the case are that complainant is employed with Bank of Baroda who invited applications from its employees by taking loan from some other public sector bank in respect of their February, 2006 public issue.  The complainant opened a D-mat account bearing No.123390 with K & A Securities and after taking the loan, he applied for the Bank’s public issue and allotted 240 shares which went into his D-mat account.  Thereafter the complainant closed his earlier D-mat account and opened a new account with OPs on 8.4.2006 and transferred the 240 shares to his new D-mat account. On 14.6.2006 the complainant further purchased 50 shares of Bank of Baroda and thereafter he availed the online trading facility on persuasion of Mr. Vishal Vij, Relationship Manger of the OP. Mr.Vishal Vij also did some trading on behalf of complainant while sitting in the office of the complainant and Mr.Vij also persuaded the complainant to indulge in heavy trading to earn higher profit.  On the insistence of Mr..Vij, the complainant advised him to trade only in 20 shares. On one fine morning, the complainant received a telephonic call from the office of the OP and was shocked to know that his account balance was around Rs.15,000/- -  Rs.16,000/- only and the 240 shares have also been traded without having any authority.  In the month of October, 2006 the complainant along with his brother went to the office of the OP where Mr. Akash, Team Leader was narrated the entire story who assured the complainant that the money will be recovered but you have to wait for sometime. But later on after a lapse of quite sometime it was conveyed that the company had refused to give money to the complainant.  On the above said act of the OP the complainant has filed a complaint for deficiency in service and unfair trade practice on the part of OP.

3.     Reply was filed by the OP and pleaded that the complainant himself approached the officials of Indiabulls Securities Limited at their branch office for opening an account for the purpose of trading in shares and vehemently denied that the officials of the OP allured the complainant to open his account with the OP company.  The complainant has himself admitted that he is the employee of Bank of Baroda and is well educated person, who had entered into Standard Member Constituent Agreement for both cash and Derivative Segments along with Risk Disclosure Document on 5.4.2006 with the OP company for trading purposes on his own. It was further submitted that all the transactions in the account of the complainant were executed in pursuance to and in consonance with his instructions only and the OP company duly fulfilled its obligation of transaction facilitator, however, due to complainant’s own judgmental error in the speculative stock market he had suffered losses. It was averred that the complainant was well aware of the status of his account, moreover the details regarding all the transactions made by the complainant were duly supplied to the complainant at his given address. Rest of the material allegations made by the complainant have been denied. Hence, there was no deficiency in service or unfair trade practice on the part of OP and prayed for dismissal of the complaint. 

4.    The parties led their evidence in support of their contentions.  

5.    The District Forum dismissed the complaint with no order as to costs. 

6.       Aggrieved by the order of District Forum, the present appeal has been filed by the complainant. We have heard Sh.Navin Kapur, Advocate for the appellant and Sh.Vikas Awasthi, Advocate for the respondent and carefully gone through the file. The main point for consideration before us is whether the complaint filed by the complainant falls within the preview of Consumer Protection Act, 1986.

7.    In the appeal, the appellant pleaded that the impugned order passed by the learned District Forum is patently erroneous and illegal inasmuch as the same has been based upon misreading of documents and misconception of law. The form exhibit –3 was got signed from the appellant and was filled by the representative of the respondent who left the column regarding the employer of the appellant blank. Leaving any such column blank was not at all deliberate in any manner on the part of appellant. It is pertinent to mention that in the address column of the form, the address of the appellant is given as that of the bank of the appellant in which he is employed and the phone number provided in the said form is also that of the employer of the appellant. The learned District Forum has erred in holding that there is no privity of contract between the complainant and OP as no consideration has been paid by the complainant for availing the services of OP whereas the facts have not been legally considered with a proper judicious mind by the learned District Forum while passing the impugned order. The learned District Forum has gravely erred in law by not giving any finding in respect of respondent having misappropriated the funds of complainant and regarding fraud committed by them. The District Forum has erred in law and facts of the case while dismissing the complaint filed by the complainant. It has been held that the transactions between the complainant and OP relate to speculative purchase and sale of shares, as such the dispute is not a consumer dispute and does not fall within  the ambit of CPA, 1986. It is further submitted by the appellant that investment in shares is not a commercial activity and the same is self employment for the purpose of earning livelihood which is legal in the eyes of law and a Government Employee can also invest in the same in addition to his said occupation. Hence, it is prayed by the appellant that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.       After hearing the learned counsel for the parties and perusal of the record, we are of the view that sale and purchase of shares had been done through the account of the complainant for earning huge profits. This activity is definitely commercial in nature and therefore the complainant is not a consumer as defined under the CPA, 1986. Further there are allegations of fraud committed by the Ops and these cannot be gone into by the Consumer Fora under its summary jurisdiction as per the settled law. In view of the above, we are of the considered view that the complaint is not maintainable before the Consumer Fora .

9.       In view of the above observation, we are of the view that the order passed by the learned District Forum is appropriate and well reasoned, which calls for no interference by us. We uphold the order of the learned District Forum ad dismiss the appeal as devoid of any merit. However the appellant is at liberty to approach the Civil Court, if he so desires and as permitted by law. It is further made clear that the time spent in pursuing the matter before the consumer courts shall not be counted towards calculation of period of limitation in filing the civil suit.

10.          Copies of this order be sent to the parties, free of charge.

Pronounced.

18^th February, 2010.