PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is retired government employee, Opposite Party No.3 is running a firm by name Moosa Associates, dealing with investments of all kinds. The Complainant has been regularly dealing with Opposite Party No.1 & 2 through M/s. Moosa Associates. In the year 1991, 1997, 1999, 2005 & 2006 till 2010, at regular intervals, the Complainant invested money with the Opposite Party No.1 & 2 Companies through Opposite Party No.1.
2) It is submitted that Complainant during the year 2008, a couple of debentures had matured and he got his payment back. As a regular features, he intended to reinvest the money back with M/s. Shriram Transport Finance Co. Ltd. Opposite Party No.3 Kasim Moosa advised the Complainant not to invest at that movement as the market was very bad. After one month at about 16/01/09, Opposite Party No.3 approached the Complainant to reinvest and as per advice of Opposite Party No.3, the Complainant issued two cheques for Rs.2 Lacs each both dtd.16/01/09 drawn on S.B.B.J. Mulund Bank, Mulund West, Mumbai- 80.
3) According to the Complainant, after period of 1½ months Opposite Party No.3 returned the aforesaid cheques stating that Company has changed its name to S.T.F.C. and asked the Complainant to issue two fresh cheques in favour of S.T.F.C. account No.5006100007197. Accordingly, the Complainant issued two cheques bearing No.238796 and 238797 both dtd.20/03/09 drawn on S.B.B.J. Mulund for an amount of Rs.2 Lacs each. The Complainant in good faith delivered said cheques to Opposite Party No.3 who issued receipt in which short form of S.T.F.C. was used.
4) According to the Complainant, after two months time, he received two debentures certificate for Rs.2 Lacs each from Shriram Transport Finance Co. Ltd. Copies of the said debentures certificate are produced alongwith complaint at Exh. ‘A’ & ‘B’ It is submitted that there was oral understanding between the Complainant and Opposite Party No.3 that he would be given some intensive for the deposit made by the Complainant. M/s. Kasim Moosa gave a cheque of Rs.12,000/- drawn on Catholic Syrian Bank. The amount was much more than the Complainant expected and therefore, the Complainant verified with the bank and found that there was no sufficient balance in the concerned account. Thereafter, the Complainant tried to trace out Mr. Kasim Moosa, but the Complainant could not locate him. Then the Complainant communicated with Shriram Transport Finance Co. Ltd. and made several communication with S.B.B.J. and was informed that the cheques were encashed at Syndicate Bank, Mulund. In the meantime, official of Shriram Transport Finance Co. Ltd. informed the Complainant that no such debentures were issued by the Company. Therefore, on 17/10/09, the Complainant lodged complaint with Mulund Police Station. Copy of FIR is produced at Exh.‘C’.
5) By letter dtd.28/08/09, the Complainant requested Opposite Party No.1 & 2 for refund of the deposited amounts and asked to take action against their agent – Opposite Party No.3. On 14/01/2010, Shriram Law Consultants have issued a letter to the Complainant denying their liability. According to the Complainant, it is vicarious liability of the Opposite Party No.1 & 2 towards act of their agent i.e. Opposite Party No.3. It is submitted that Opposite Party No.3 had issued forged debentures and therefore, Opposite Party No.1& 2 are responsible for the aforesaid act of Opposite Party No.3. It is submitted that cause of action is continuous. The Complainant has prayed to reimburse amount of Rs.4 Lacs. The Complainant has prayed to direct Opposite Party No.1 to 3 to pay to the Complainant Rs.4 Lacs individually/severally with interest @ 18% p.a. from 02/03/09 till final disposal of this complaint. The Complainant has claimed Rs.35,000/- towards legal charges and Rs.5 Lacs as a compensation for mental distress and agony. Alongwith complaint, the Complainant has produced documents as per list of document and filed his affidavit in support of the complaint.
6) Opposite Party No.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that present complaint do not come within the ambit of Consumer protection Act, 1986 and the dispute raised in the complaint is not consumer dispute and therefore, complaint may be dismissed with cost. It is contended that the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986, and on this ground alone complaint is liable to be dismissed.
7) It is submitted that complaint is false, frivolous and mischievous. There is no deficiency in service on the part of Opposite Party No.1 & 2. The Complainant has suppressed material facts from this Forum. There is no cause of action to this complaint and complaint is time barred, so complaint be dismissed. It is further submitted that Complainant is not authorized signatory to file the complaint. The Complainant has not submitted genuine documents regarding purchase of debentures. The wrongful act allegedly committed by Opposite Party No.3 was beyond the scope of its limited authority and therefore, for any consequential loss to a third party arising there from the liability will be that of Opposite Party No.3 only and not of principal i.e. Opposite Party No.1 & 2. It is submitted that the Complainant being a prospective investor, is not consumer entitled to seek relief under the Consumer Protection Act. Further, the transaction being commercial in nature, it is beyond the purview of the Consumer Protection Act. Allegations made in the complaint are vague, false and frivolous. The Opposite Party No.1 & 2 have denied allegation made in the complaint. It is denied that the Complainant made regular investment with Shriram Group of Company since last 22 years through Opposite Party No.3. It is further denied that during 2008, a couple of debentures had matured and the Complainant got its payment back. Opposite Party No.1 & 2 have denied allegations that two cheques of Rs.2 Lacs each vide Cheque Nos.238793 & 238794, both dtd.16/01/09 were drawn by the Complainant on S.B.B.J. Mulund Branch. They have denied allegation that Opposite Party Company had changed its name to S.T.F.C. and the allegations that Complainant issued two fresh cheques dtd.20/03/09 for Rs.2 Lacs each. According to the Opposite Party No.1& 2, they have no knowledge as to whether Mr. Kashim Moosa had given a cheque of Rs.12,000/- drawn on Catholic Syrian Bank to the Complainant. The Cheque which were allegedly issued by the Complainant was never submitted by the Opposite Party No.3 to Opposite Party No.1 & 2. The certificates which are produced by the Complainant are fake and forged. Opposite Party No.1 & 2 have not given any authority to Opposite Party No.3 to issue any certificates. Opposite Party No.3 has extended his authority without knowledge of Opposite Party No.1 & 2 and therefore, Opposite Party No.1 & 2 are not liable for unauthorized and illegal act of Opposite Party No.3. According to the Opposite Party No.1 & 2 there is no continuous cause of action as alleged by the Complainant and the complaint is barred by limitation. Therefore, complaint be dismissed with heavy cost.
8) Opposite Party No.3 was duly served with the notice of this complaint on 30/07/2010, Mr. Kasim Moosa had appeared on behalf of Opposite Party No.3 and sought time to file written statement. However, thereafter Opposite Party No.3 has not filed written statement and remained absent.
9) The Complainant has filed rejoinder and thereby denied allegation made in the written statement of Opposite Party No.1 & 2. The Complainant has filed written argument. Opposite Party No.1 & 2 have filed affidavit of evidence. Heard oral argument of Mr. R.M. Deshmukh, Ld.Advocate for the Complainant and Mr. H.G. Misar, Ld.Advocate for the Opposite Party No.1 & 2.
10) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a ‘Consumer’ as defined under Sec.2(1(d)(ii) of the Consumer Protection Act,
1986 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- It is the case of the Complainant that for the last 22 years he is making investment with Opposite Party No.1 & 2 Company through their agent Opposite Party No.3. It is averred that in the 2008, a couple of debentures of the Complainant had matured and he got his payment back. As a regular feature, Complainant was intending to reinvest money back with Shriram Transport Finance Co. Ltd. So he contacted Opposite Party No.3 whose representative of Mr. Kasim Moosa advised the Complainant to wait for some period for investment because market was very bad. Thereafter, on 16/01/09, Opposite Party No.3 advised Complainant to reinvest money. Accordingly, the Complainant issued two cheques, each of Rs.2 Lacs both dtd.16/01/09 drawn on S.B.B.J. Mulund Bank. About 1½ months thereafter Opposite Party No.3 returned the said cheques to the Complainant and asked Complainant to reissue fresh cheque in favour of S.T.F.C. Account, informing that Company has changed its name. Accordingly, the Complainant on 20/03/09 issued 2 fresh cheques each for Rs.2 Lacs in favour of S.T.F.C. account. Subsequently, Mr. Kasim Moosa gave a cheque of Rs.12,000/- to the Complainant drawn on Catholic Syrian Bank and it was found that there was no sufficient balance in the said account. Therefore, the Complainant tried to trace out Mr. Kasim Moosa, but he could not locate. When he contacted Opposite Party No.1 & 2, Opposite Party No.1 & 2 informed Complainant him that no such debentures were issued by Opposite Party No.1 & 2. It is alleged by the Complainant that Opposite Party No.3 had given forged debentures to the Complainant and thereby deceived the Complainant. According to the Ld.Advocate Mr. Deshmukh, Opposite Party No.1 & 2 are vicariously liable for the act of their agent i.e. Opposite Party No.3.
Opposite Parties have denied allegations made in the complaint and submitted that the Complainant is not a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Therefore, present complaint deserves to be dismissed. Ld.Advocate Shri. Misar has submitted that Complainant is a investor. Even according to the Complainant, for the last 22 years he is investing huge sums. It is submitted that Complainant is making investment of huge of amount for earning profit. He is a prospective buyer of debentures and therefore, he is not a consumer under the Consumer Protection Act, 1986 and therefore, complaint deserves to be dismissed.
According to the Ld.Advocate Shri. Deshmukh, Opposite Party No.1 & 2 are finance companies and they are rendering services to the investors, as such Opposite Party No.1 & 2 are service providers under the Consumer Protection Act. Opposite Party No.3 is a agent of Opposite Party No.1 & 2. The Complainant made investment for last 22 years with Opposite Party No.1 & 2 through Opposite Party No.3 for consideration. Therefore, Complainant is a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986.
By the Amendment Act No.62 of 2002, Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986, is amended and by the amendment a person who avails such services for commercial purpose is excluded form definition of consumer. Amended provisions of the Consumer Protection Act came into effect from 15/03/2003. According to the Complainant, in the year 2008 his some debentures matured and he received payment of the same and thereafter as per the advice of Mr. Kasim Moosa – Opposite Party No.3, for investment in debentures with Shriram Transport Finance Co. Ltd., he issued two cheques. Investment in debentures stands on different footing than investment in fixed deposits. Investment in debentures is speculative in nature. The Complainant being prospective investor is not a consumer. Dealing in debentures is commercial activity. It appears from the averment made in the complaint that for the last 22 years the Complainant made investment of huge amount with Opposite Party No.1 & 2 through Opposite Party No.3. The transactions mentioned in the compliant are commercial nature. Therefore, the Complainant is not a consumer as per amended provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Hence, we answer point no.1 in the negative.
Point No.2 :- As discussed above, the Complainant is not a consumer as denied under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986, present complaint is not maintainable under the Consumer Protection Act. Therefore, the Complainant is not entitled to any relief as prayed for against Opposite Parties. Hence, we answer point no.2 in the negative.
For the reasons discussed above the complaint deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.199/2010 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
