Delhi

New Delhi

CC/593/2009

Sunil Mathews - Complainant(s)

Versus

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

26 Sep 2017

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./593/2009                                                 Dated:

In the matter of:

Sunil Mathews

289, Supreme Enclave

Mayur Vihar -1

New Delhi

 

……..COMPLAINANT

 

VERSUS

 

INDIABULLS SECURITIES LTD.

Regd. Office : F-60,

Malhotra Building, IInd Floor,

Connaught Place,

New Delhi-110001

 

SANJAY KUMAR

Regd. Office : F-60,

Malhotra Building, IInd Floor,

Connaught Place,

New Delhi-110001

 

JAGMEET SINGH SAIGAL

Regd. Office : F-60,

Malhotra Building, IInd Floor,

Connaught Place,

New Delhi-110001

 

 

 

  .... OPPOSITE PARTY

MEMBER : NIPUR CHANDNA

ORDER

          The case of the complainant is that being impressed with lucrative assurance given by OP no. 2 and 3 he decided to trade in the stock market through OP 1 and with this view he opened Trading account with OP 1 with an initial investment of Rs. 1,00,000/- and started trading from 13.09.2006 on the advice given by OP no. 2 and 3. It is stated by the complainant that whatever transaction was done by him through his trading account was only by the guidance and advice of OP 2 and 3. It is alleged by the complainant that after one month of Opening of trading account, he was informed by OP no. 2 that the profit of Rs. 23, 000/- was accrued on his investment of Rs. 1,00,000/-, OP-2 further advised him that as the Stock market was booming and further boom was expected to be held on account of Diwali, to deposit a sum of Rs. 6,00,000/- The complainant on the advice of OP 2 deposited  a cheque  in favour of OP 1 for a sum of Rs. 3,00,00/-, Rs. 1.45 lakh , and Rs. 1.50 lakhs in favour of OP1 on 7.10.2006. It is alleged by the complainant that within few days of the deposit of Rs. 6,00,000/-, he found that instead of any increase in the account, there was a regular loss and in two month he had to suffer a  total loss of Rs. 5,00,000/-.  It is alleged by the complainant that on an analysis of market trends and available record of the corresponding period, he found that Rs. 7 lakhs portfolio was reduced to Rs. 2 lakhs within few months was not a result of market volatility but solely on account of unprofessionalism and incompetence on the part of OP which amounts to deficiency in service on the part of OP. Hence this Complaint.

The notice of complaint was issued to the OPs, 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 OPs has denied other facts stated in the complaint and has prayed for its dismissal.

This case was reserved for order on 03.08.2015, but thereafter on account of change of learned Members of the Forum order could not be pronounced and in November 2015, the matter was posted for re-arguments on 19.05.16. The arguments on behalf OPs were heard. We have heard the OPs and have gone through the written arguments filed on behalf of the parties, record of the case and relevant provisions of law.

          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..

          In the present case, the complainant in the complaint has alleged that has   invested his money with the OP1 on the advice of OP no. 2 and 3. 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 (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.

          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                                    .

 

                                      (S K SARVARIA)

                  PRESIDENT

 

                                           (H M VYAS)                                                       (NIPUR CHANDNA)

                                                MEMBER                                                                  MEMBER