Delhi

New Delhi

CC/48/2009

Anil Seigell - Complainant(s)

Versus

M/S. India Bulls Securities Ltd. - Opp.Party(s)

01 Jun 2018

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.48/2009                                                                                                   Dated:

In the matter of:

Sh.  Anil Seigell,

Plot E, 17 B, Sec. 40,

Noida 201303.

                 ……..COMPLAINANT

VERSUS

Indiabulls Securities Ltd.,

Through its Manager,

Regd. Office : F-60, 2^nd Floor,

Malhotra Building,

Connaught Place,

New Delhi-110001.

Opposite Party.

ARUN KUMAR ARYA, PRESIDENT

ORDER

The complainant has filed the present complaint against the OP under section 12 of Consumer Protection Act, 1986.  The brief facts as alleged in the complaint are that the complainant is a customer of OP having a DEMAT Account bearing client No.114384.  It is alleged that on the basis of share holdings till 17.02.2008, he was holding one lot of January NIFTY Futures and three lots of February NIFTY Futures.  It is alleged that the complainant had deposited two cheques of Rs.15,000/- each on 17.01.2008 and another cheque of Rs.15,000/- on 21.01.2008.  It is further alleged that on 18.1.2008, the complainant had sold 10 shares of Bharat Forge and the sale profits were lying with the OP.  It is further alleged that on 22.01.2008, the complainant noticed that all his NIFTY Future were sold off by the OP without his instruction.  It is alleged that OP also charged brokerage on these unilateral transaction of sale, due his act, the complainant suffered a huge loss of about Rs. 3.5 lacs.  It is alleged that the on 04.02.2008, complainant made a representation and claimed damages for the loss suffered by him due to unlawful act of OP, but nothing has been done by the OP.  The complainant, therefore approached this Forum for redressal of his grievance.  

2.     The notice of complaint was issued to the OP, who contested the complaint and filed reply raising the  Preliminary objections regarding the maintainability of the present complaint  by alleging that the complainant had bought and sold Securities with intent of earning profits , and as such he does not qualify as a  “ Consumer “ under Consumer Protection Act, 1986.. The OP has denied other facts stated in the complaint and has prayed for its dismissal with exemplary costs.

 3.    In support of his case, the complainant has filed his affidavit in evidence. on behalf of the OP, the affidavit in evidence of Sh. Anoop Gupta, Vice President, Operations of the OP  was filed.

4.     Both parties have filed written arguments.

5.     We have heard the parties and have gone through the written arguments filed on behalf of the parties, record of the case and relevant provisions of law.

 6.    On the point of maintainability of this complaint, 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 Hon’able National Consumer Disputes Redressal Commission on 1/8/2012..

 7.    In the present case, 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 for commercial purpose in the light of Asaithambi's case (supra). Therefore, the complainant is not a consumer within the meaning of Section 2 (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 this view of the matter, there is no need to go into the other arguments raised from both sides, as the same would not alter the fate of the complaint.

 8.    In view of the above discussion the 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.

   Pronounced in open Forum on                                    .

 (ARUN KUMAR ARYA)

PRESIDENT

 

                            (NIPUR CHANDNA)                                       (H M VYAS)

                                     MEMBER                                                    MEMBER