KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
OP No. 19/2008
JUDGMENT DATED: 25-03-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
COMPLAINANTS
1. Varghese Skaria,
Koyikkal House, Greenpark,
Asokapuram P.O., Alwaye, Ernakulam.
2. Darly Varghese,
Koyikkal House, Greenpark,
Asokapuram P.O., Alwaye, Ernakulam.
(Rep. by Adv. Sri. Kumarapuram J. Mohanan Nair & others)
Vs
OPPOSITE PARTIES
1. M/s India Bulls Securities Ltd.,
F. 60 2nd Floor, Malhotra Building,
Connaught Place, New Delhi,
Represented by Managing Director.
2. M/s India Bulls Securities Ltd.,
Land Mark Enclosure, Valanjambalam,
West of Over Bridge, Kochi – 682 016,
Represented by its Branch Manager.
3. M/s India Bulls Financial Services Ltd.,
F. 60, Malhotra Building, Connaught Place,
New Delhi, Represented by its Managing Director.
(R1 to R3 rep by Adv. Sri. V.K. Radhakrishnan Nair & others)
JUDGMENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
The case of the complainants bereft of unnecessary details is as follows:
The first complainant is a retired employee of a Public Limited Company and the second complainant is his wife. The opposite parties are engaged in share trading business. The complainants had invested their hard earned money with the first opposite party for purchasing and trading shares. It is stated that originally they had been trading with M/s Geogit Financial Service Ltd. and due to the continuous persuasion, insistence and compulsion of the opposite parties, the complainants had transferred their whole account with the Geogit Company to the opposite party company. It is averred in the complaint that originally the complainants were dealing with small quantities of shares and on 10-05-2006 due to the strong recommendations of one Mr. Lalbert Cherian, the Regional Manager of the opposite parties, the complainants agreed to purchase shares of MTNL at the market rate of Rs. 220/- per share and believing the words of the Regional Manager of the opposite parties, the complainants put an order for 10,000/- shares at the rate of Rs. 219/- per share and immediately after the purchase, the price of the shares went down as against the assurances of the Regional Manager Mr. Lalbert Cherian. It is also submitted by the complainants that they were forced into an additional debt of approximately Rs. 23,00,000/- and that the opposite parties offered the said amount for putting the complainants into additional debts. It is also the case of the complainants that though they wanted to sell all the shares when the prices were not that low, the opposite parties waited for another period and they sold the shares without the consent of the complainant at a stage when the market value was very low. The complainants have also submitted that the opposite parties were charging interest on the amount offered by the opposite parties and that though the complainants had requested to clear the dues by selling the shares very much earlier, the opposite parties were dragging the matter to enrich themselves with the interest charged on the amount offered by them. The complainants have further submitted that in order to clear the debt of the complainants to the opposite parties they had to sell their property which was worth much more than the price they received and are now in a pitiable condition because of the unfair trade practice and deficiency in service committed by the opposite parties.
2. Though notice was served on the opposite parties they did not file any version inspite of giving chances for filing the same. However, on 20-06-2009 the complaint was dismissed for default due to the nonappearance of the complainants and the OP was restored to file on 12-04-2010 on the restoration petition filed by the complainants. Even after restoration the opposite parties failed to file the version and the complaint was posted for evidence and the complainant filed proof affidavit in lieu of chief examination and Exts. A1 to A12 are marked. Ext. A1 is the member constituent agreement with the first and second opposite parties. Ext.A2 is the financial agreement with the 3rd opposite party. The transaction statement of M/s Geogit Financial Service is Ext.A3. Ext.A4 is also the transaction of Geogit Financial Service Ltd. Ext.A5 is the Debit Slip dated 19-03-2007 issued by the 3rd opposite party. Ext.A6 series are the Debit Slips dated 05-01-2007 for the year 2005-2006. The Debit Slips dated 05-01-2007 from 01-04-2006 to 05-01-2007 are Ext.A7 series. The circular issued by the SEBI is marked as Ext.A8. Ext.A9 is the statement of dividend issued to the complainant. Ext.A10 is the statement of the sale of the shares of the complainants by the opposite parties. Ext.A11 is the sale deed in respect of the sale effected by the complainants and Ext.A12 is the purchase deed after selling the property of the complainants.
3. The points that arise for our consideration are:
1. Whether the complainants are consumers as defined in the Consumer Protection Act?
2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties?
3. Reliefs and costs.
4. Point No. 1: The complainants have alleged that the opposite parties had committed deficiency in service and unfair trade practice. It is averred that due to the instigation and compulsion of the opposite parties, the complainants had changed their share dealings with M/s Geogit Financial Service and had invested the amount and had started the dealings with the present opposite parties. It can be seen that the complainants had availed the services of the opposite parties for buying and selling of shares and it is also averred that the opposite parties had sold the shares belonging to the complainants without their knowledge and consent thereby putting the complainants to huge loss. It is also found that though notices were served on the opposite parties the opposite parties did not care to file version and contest the matter which would give an impression that the complainants’ case regarding the availing of service can be accepted. We find that the complainants are consumers and the compliant is maintainable before this Commission.
5. Point No. 2: The complainants have alleged that the opposite parties had committed deficiency in service and unfair trade practice. It is to be found that the very case of the complainants is that they were forced to shift their dealing with M/s Geogit Financial Service with the opposite parties on the assurances that the services offered by the opposite parties would help the complainants in their share transactions. On a perusal of Ext.A5, A6 and A7, we find that the opposite parties had charged exorbitant interest on the complainants when the complainants had requested to sell their shares and clear all the debts to the opposite parties. Ext.A9 gives an indication that dividend that was allotted to the complainants amounting to Rs. 1,55,996/- had been appropriated by the opposite parties. It is to be found that the complainants had stated that they had invested an amount of Rs. 35,00,000/- with the opposite parties and it was over and above the said amount that the opposite parties financed the complainants in buying and selling of shares. They have also a case that the opposite parties were not providing the ledger statements, contract notes etc and were using vague terms which could not be understand by them. The learned Counsel for the complainants has submitted before us that because of the acts of opposite parties, the complainants were put to heavy debts and in order to clear all the debts they had to sell their property as is evident from Ext.A11 and had to shift to a small house as per Ext.A12. We find that from the available facts and circumstances, there is deficiency in service and unfair trade practice on the part of the opposite parties.
6. Point No. 3: Complainants have stated that they had incurred a loss to the tune of Rs. 77,57,457.15 on various accounts. However, they have limited their claim to Rs. 50,00,000/-. The complainants have filed affidavit in support of their contentions and we find that the contentions taken by the complainants have not been disproved or controverted by the opposite parties. But on a perusal of the entire documents, we find that though the complainants have stated that the opposite parties had sold all the shares to clear off the combined liability to the tune of Rs. 1,02,66,816.33 as per Ext.A10, apart from the statement produced and marked as Ext.A10, there is no supporting evidence to show that the opposite parties have sold the shares and had appropriated the entire amount in their favour. However, we also find that as per Ext.A5, A6 and A7 the opposite parties had charged interest on the accounts of the complainants amounting to the sum of Rs. 11,94,525.51. It is also seen that as per Ext.A9, the statement of dividend issued to the complainants, the opposite parties had appropriated the sum of Rs. 1,55,996/-. We find that the action of the opposite parties in charging interest on the amounts offered by them when the complainants had substantial amount with the opposite parties, is not proper and the same has to be returned to the complainant. We also find that the complainant is entitled to the sum of Rs. 1,55,996/- the amount of dividend entitled to the complainants. In the said facts and circumstances, we find that the complainants are entitled to get the amounts covered under Ext.A5, A6, A7 and A9. It is also to be found that though the complainants have stated that they had to sell their property in order to pay off all their debts to the opposite parties, there is no supporting evidence to that effect. Moreover, it is found that they have purchased another property subsequently for a lesser amount. The selling and buying of properties for a higher amount or a lower amount will not be sufficient to show that the complainants had sold the property to clear all their debts caused by the opposite parties. However, the complainants are also entitled for compensation of Rs. 2,00,000/- as no interest is ordered for the amounts due to them as stated above.
In the result, the complaint is allowed in part. Thereby the opposite parties are directed to pay to the complainants the sum of Rs. 13,50,521.51 with compensation of Rs. 2,00,000/- within one month from the date of receipt of this order, failing which the amounts shall carry interest at the rate of 12% per annum from the date of default till the date of payment. The complainants are also eligible to get a sum of Rs. 5,000/- as costs to be realized from the opposite parties.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
Sr
APPENDIX
Exts. for Complainant
A1 Member constituent agreement with the first and second opposite parties
A2 Financial agreement with the 3rd opposite party
A3 Transaction statement of M/s Geogit Financial Service Ltd.
A4 Transaction statement of M/s Geogit Financial Service Ltd.
A5 Debit Slip dated 19-03-2007 issued by the 3rd opposite party
A6 series Debit Slips dated 05-01-2007 for the year 2005-2006
A7 series Debit Slips dated 05-01-2007 from 01-04-2006 to 05-01-2007
A8 The circular issued by the SEBI
A9 Statement of dividend issued to the complainant
A10 Statement of the sale of the shares of the complainants by the opposite parties
A11 Sale deed in respect of the sale effected by the complainants
A12 Purchase deed after selling the property of the complainants.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
