Delhi

New Delhi

CC/390/2013

Ram Mehar Malik - Complainant(s)

Versus

M/S. BMA Wealth Creators Ltd - Opp.Party(s)

24 Feb 2020

ORDER

 

 

                             CONSUMER DISPUTES REDRESSAL FORUM-VI

                                    (DISTT. NEW DELHI),

                          ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                                                                       NEW DELHI-110001

 

Case No.C.C./390/2013                                            Dated:

In the matter of:

Sh. Ram Mehar Malik,

S/o Late Sh. Prabhu Dayal,

R/o Flat No.124, 2^nd Floor,

Pkt.3, Sec.24, Rohini,  New Delhi.

                                                       …… Complainant

Versus

BMA Wealth Creators Ltd.,

107, New Delhi House,

27, Barakhamba Road,

New Delhi-01.

(Through its Managing Director)

                ……. Opposite party

NIPUR CHANDNA, MEMBER

ORDER

 

The present complaint is filed under of Section 12 of the Consumer Protection Act, 1986 (in short, Act) by the complainant alleging, in brief, that the complainant opened Trading Account with the OP on 16.11.2011. On 23.8.2012, the complainant transferred one thousand scrip of Jain Irrigation from his different account to the OP’s account.   On 3.9.2012, the complainant was having a security of Rs.35,000/- with the OP in form of one thousand scrip of Jain Irrigation.  He wanted to purchase Nifty Call 5500 which had gone below Rs.7 on 3.9.2012 and shown a high of Rs.18.30 on 7.9.2012.   There was a excellent growth in the Nifty 5500 Call and it raised upto Rs.194.10 on 27.9.2012 but the official of the OP never bothered to do anything in the complainant’s account, due to which he suffered a loss of Rs.9,35,500/- till 27.9.2012 on account of negligence on the part of OP.  The complainant sent various emails and reminders to the OP to indemnify the total loss to the tune of Rs.18 lacs till 20.1.2013 due to deficiency in services on the part of the OP. The complainant also sent legal notice to OP on 2.1.2013 demanding the damages,  but no reply was received nor the dispute was resolved by OP. Complainant therefore approached this Forum for the redressal of  his grievance.

2.     Notice of the complaint was sent to the  OP.  None appeared on behalf of OP, despite service, hence it was ordered to be proceeded ex-parte on 30.8.2013 by our predecessor bench.

3.     We have heard the arguments advanced at the Bar.

4.     In order that the complaint filed before consumer fora is maintainable, the essential requirement is that the complaint should have been filed by a person , or on his behalf, who is, the consumer within the meaning of Section 2 (d) of the Act. The complaint filed by or on behalf of a person who is not a consumer under the said provision of law, is not maintainable. Section 2 (d) (ii) of the Act clearly shows that if the services are hired or availed of by the person concerned/complainant for any commercial purpose then the said person is not a consumer within the meaning of  Section 2 (d) (ii) of the Act. However, by virtue of Explanation to Section 2 (d) if services are hired for commercial purpose and are exclusively for the purposes of earning a livelihood by means of self-employment then, still the person concerned availing such services is a consumer within the meaning of Section 2 (d). However, in such a case, the complainant is required to allege these facts in the complaint. (See Asaithambi versus the company secretary and others Revision Petition. No. 1179 of 2012, decided by honourable National Consumer Disputes Redressal Commission on 1/8/2012..

 5.    In the present case, the complainant has alleged that OP had failed to do the necessary transaction in his Trading Account, due to which he suffered a loss to the tune of Rs.18. It is submitted that despite repeated requests OP failed to purchase the shares resulting in financial loss to the complainant. Undisputedly the purpose of investment was creation of wealth by way of sale, purchase of stocks and shares from time to time with the consent of both parties in terms of agreement executed between the parties. The transactions in stocks and shares are commercial purpose in the light of Asaithambi's case (supra). Therefore, the complainant is not a consumer within the meaning of Section 2 (1) (d) of the Act. The present complaint, is therefore, not maintainable before the consumer fora and complainant may seek redressal of his grievances elsewhere before competent forum/court as per law.  In view of the above, there is no need to go into the other arguments raised by the complainant, as the same would not alter the fate of the complaint.

 6.    In view of the above discussion, the present complaint is dismissed, with the liberty to the complainant to approach the appropriate Court for the redressal of his grievance.  Keeping in view peculiar facts and circumstances of the case, the parties are left to bear their own cost of litigation. This final order be sent to server (www.confonet.nic.in ). A copy each of this order each be sent to both parties free of cost by post. File be consigned to the record room.

Announced in open Forum on  24/2/2020. 

 

 

           (ARUN KUMAR ARYA)

                       PRESIDENT

                      (NIPUR CHANDNA)                                                  (H M VYAS)

                                 MEMBER                                                             MEMBER