- Mohan Dasgupta.
- Rajat Dasgupta.
Both residing at
38/20, Bhuban Mohan Roy Road, Kolkata-8.
____Versus____
- M/s India Infoline Ltd. represented by
its Branch Manager / Authorized person
9, Elgin Road,
P.S. Bhowanipur, Kolkata-20.
- M/s India Infoline Ltd.
IIFL Centre Kamala City,
Senapati Bapat Marg,
Lower Parel, Mumbai-400013.________ Opposite Parties
Present : Sri Sambhunath Chatterjee, Hon’ble President
Smt. Samiksha Bhattacharya, Member
Order No. 19 Dated 17/08/2016.
The case of the complainants in brief is that complainants opened a joint demat come trading account (NSDL DP IN302951 Client Id 20102174 Trading Code MOUGUPTA) on 28/02/2011 with o.ps. by paying an account opening charge of Rs.750/- and a life time DP maintenance fees of Rs.555/-. On 12.7.11 o.p. no.1 committed gross breach of trust by executing sum 20 option trades and 2 future trades on behalf of the complainants without the order, consent or knowledge of the complainants and debited the net loss together with brokerage and other charges, taxes, etc. from the said trades to the account of the complainants. On detection of the same complainants asked the o.p. no.1 to provide conclusive material evidence of the order or the consent of the complainants to the said trades prior to execution thereof or reverse the said debits forthwith. O.p. no.1 denied having executed the said trades without the complainants’ order or consent but failed to furnish any material evidence in support thereof. Complainants compelled to refer their complaint to the Investor Grievances Cell of the NSE (National Stock Exchange) for which the complainants had to instruct the o.p. no.1, by mail dt.20.7.11, to freeze their account. O.p. no.1 duly acknowledged the receipt of the complainants’ mail and therefore complainants were in belief that their account had been duly frozen and they would not have their access to their assets, the value of which was Rs.14,58,340.61 as on 20.7.11. The representative of o.p. no.1 who attended the investor grievance meeting at NSE as well as the arbitration proceeding acknowledged that the account was frozen but the account was not actually frozen. As per meeting of the investor grievance cell of NSE, o.p. no.1 offered to settle the whole matter for an amount of Rs.10,000/- only. The offer was rejected by complainants and they preferred the matter before Ld. Arbitrator. As per award of the arbitration proceeding o.p. no.1 was directed to return Rs.29,637/- within 5.7.12. O.p. no.1 returned Rs.29,385/- without providing any details of the computation of interest. Therefore o.p. no.1 was liable to compensate the complainants. Complainants could not apply for any compensation before arbitration proceeding. Hence the application praying for compensation of Rs.2,88,391.85 being the interest of the amount of Rs.14,58,340.61 for the period of 401 days, Rs.20,703.30 being the interest amount of Rs.12,72,172.65 for the period of 33 days, Rs.1470/- being the interest amount for the difference of payment as per arbitration award along with refund of Rs.750/- for account opening charges, Rs.1,25,000/- for harassment and Rs.10,000/- for cost.
O.ps. appeared before this Forum by filing w/v and denied all the material allegations interalia stated that complainants are not the consumer as per the definition of C.P. Act, 1986. Complainants had approached the o.ps. for opening the account after execution of Member Client Agreement, filled up the client registration form and submitted the necessary documents. Complainants and o.ps. had executed the Member Client Agreement and agreed to abide by the same. Complainants had brought the same complaint before the competent Forum i.e. Arbitration Forum of NSE. The matter was registered in NSE being arbitration matter no.F&O / K-0001/2012 which was heard by the Hon’ble Sole Arbitrator Mr. Alok Bhattacharyya on 23.2.12, 16.3.12 and 20.4.12 and the award was passed on 6.6.12. Complainants had raised the same disputes as mentioned by complainants in the instant petition. The matter has already been heard and subsequently award has been passed. Therefore, complainants are trying to extract some illegitimate gain. O.ps. have already complied with the award dt.6.6.12 and submitted a cheque amounting to Rs.29,385.29 dt.28.6.12 to the NSE which was accepted by complainants and encashed. The dispute was clearly settled down. The Consumer Forum is not the competent authority for execution of arbitration awards. Hence, o.ps. prayed for dismissal of the instant case with cost.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular. It is admitted fact that complainants opened a joint demat come trading account (NSDL DP IN302951 Client Id 20102174 Trading Code MOUGUPTA) with o.ps. on 28/02/2011 by paying an account opening charge of Rs.750/- and a life time DP maintenance fees of Rs.555/-. O.p. company is a trading and clearing member of NSE and Bombay Stock Exchange having registered with the SEBI under the Securities and Exchange Board of India Rules 1992.
The moot question for consideration is whether the complainants are the consumers as per the definition of C.P. Act, 1986. Complainants are involving into speculative trade, making profit and/or incurring loss. Since the complainants had been trading regularly in the shares which is a commercial transaction, therefore they are not the consumers as per Sec 2(1)(d)(ii) of the C.P. Act, 1986. Moreover, regular trading in the purchase and sell of the shares is a commercial transaction and the only motive is to earn profit. The activity is purely commercial one and is not covered under the Act. We also rely upon the judgment passed by Hon’ble National Commission which was cited by ld. lawyer for o.ps. being R.P. No.1179/2012 (A Asaithambi vs. The Company Secretary, M/s Satyam Computer Service Ltd. order dated 1.8.12). We also rely on the judgment of Hon’ble National Commission in Vijay Kumar vs. Indusind Bank, II (2002) CPJ 181 (NC) and Hon’ble Commission has held; ‘Since, petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the over draft facility from the respondent, as such he would not be a consumer as per Section 2(1)(d)(ii) of the Act. Moreover, regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit. Thus this activity is purely commercial one and is not covered under the Act’.
At the time of argument complainant no.2 argued that their share transaction was for livelihood purpose but in the complaint petition para 1 it is clearly stated that the occupation of complainant no.2 is service. Moreover, complainants had not annexed any documents to support that their share trading business was for livelihood purpose.
Moreover, complainants had already approached the appropriate quasi-judicial forum i.e. Arbitration, as per the Member Client Agreement where the matter has been heard and award has been passed in June 2012. O.ps. already complied with the order of arbitration proceeding and a cheque of Rs.29,385.29 dt.28.6.12 was given by o.ps. to NSR and that was accepted by complainants and encashed. In accordance with the Arbitration and Conciliation Act, 1996, if the complainants were aggrieved to the award, the matter should have been referred to the National Stock Exchange but complainants had kept silent over the matter for more than 13 months before filing the instant case.
In view of above the present case is not maintainable and hence the complainants are not entitled to relief.
Hence, ordered,
That the case is dismissed on contest without cost against the o.ps.
Supply certified copy of this order to the parties free of cost.
