Delhi

New Delhi

CC/1171/2011

Ateev Malik - Complainant(s)

Versus

M/S. SMC Global Securities Ltd. - Opp.Party(s)

04 May 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.1171/2011                             

IN THE MATTER OF:

 

Ateev Malik

S/o. Sh. S.K. Malik

R/o. H.No. 114, Saket

New Delhi.                                                                                        …..Complainant

 

VERSUS

M/s SMC Global Securities Ltd.

98, NetajiSubhashMarg, Darya Ganj

New Delhi-110002

Through: Branch Manager/Authorised Signatory

 

Also At:

M/s SMC Global Securities Ltd.

11/68, Shanti Chamber, Pusa Road

New Delhi-110005

Through: Branch Manager/Authorized Signatory     …...Opposite Party

 

Quorum:

Ms. PoonamChaudhry, President

ShriBariqAhmad , Member

Ms. Adarsh Nain, Member

 

                                                                                                            Date of Institution:-05.11.2011                                                                                                                                                                          Date of Order   : -  04.05.2023.

ORDER

BARIQ AHMAD, MEMBER

1. The present complaint has been filed under Section 12 of Consumer Protection Act, 1986 (in short CP Act) against Opposite Party (in short OP) alleging deficiency of services. Briefly stated the facts of the case are that the complainant had opened a DMAT account with a sum of Rs.30,000/- (Rupees Thirty Thousand) vide cheque No. 886468 dated 21.03.2011 drawn on Royal Bank of Scotland with OP on temptation given by OP. The complainant on false assurance of OP deposited Rs.40,000/- (Rupees Forty Thousand) on 07.04.2011 and Rs.50,000/- (Rupees Fifty Thousand) on 11.06.2011 respectively to gain unexpected profit in 15 days. OP thereafter approached the complainant to deposit more money. The complainant deposited further sum of Rs.1,00,000/- (Rupees One Lakh) vide cheque No. 886472 dated 28.06.2011.
2. The complainant was having 200 shares of IDBI amounting to Rs.30,000/- (Rupees Thirty Thousand) at face value/purchase value @ Rs.150/- each and similarly had another 200 shares of HDIL amounting to Rs.40,000/- (Rupees Forty Thousand) at face value/purchase value @ Rs.200/- (Rupees Two  Hundred) each, totaling Rs.70,000/- (Rupees Seventy Thousand) which were transferred in the stock in D-Mat account of the complainant opened with the OP. Apart from this, the complainant had already deposited Rs.2,20,000/- with the OP in the trading account. It is also averred that these shares have also been squared-up by the OP either against the fictitious debit/loss created in the account of the complainant or through a fictitious entries or sale/purchase, carried without consent, discussion and permission of the complainant.
3. It is also alleged OP immediately depicted fictitious loss in the complainant’s account without his consent. Consequently the complainant was forced to file the complaint.
4. Notice of the complaint issued to OP, pursuant to which OP entered appearance and filed written statement stating that the opposite party denies  all objections, allegations, submissions, contentions and averments made, alleged and set out by the complainant herein unless the same being admitted specifically.
5. It was alleged that the present Appeal/complaint is gross misuse of the process of law as there is no cause of action for the complainant against Respondent/opposite party no.1, respondent/opposite party no.1 and to extract money with its malafide intention.
6. It is alleged that OP is a Public Limited Company duly registered under the Companies Act,
7. It is also alleged the complainant is not a “consumer” as per Section 2(d) within the meaning of the Consumer Protection Act, 1986. That the opposite party is duly registered with Securities Exchanges Board of India (SEBI) for rendering the trading services in equity, derivatives and currency Segments and is a member of National Stock Exchange of India Limited (NSEIL) and Bombay Stock Exchange Limited (BSE).
8. It is alleged that the Share Market is not a Private business, Share Market are wider in nature and Commercial transaction are the main process. Investments in Share market are for profit making. But all the time this is not mandatory to make profit. It is depends on the subject to the market risk.

 

9. On merit it is submitted that the complainant had deposited Rs.500/- (Rupees Five Hundred) as account opening charge on 13.05.2009 and Rs.1,00,000/- (Rupees One Lakh) on 15.05.2009 for execution of traders in cash and derivative segment. It is further submitted that the respondent had executed his 1^st trade on 19.05.2009 in Derivative segment on the exchange platform through the opposite party. It is further that the account opening fee of Rs.500/- (Rupees Five Hundred) was reversed by the opposite party on 20.05.2009. It is further submitted that thereafter the complainant had been continuously done trades through the opposite party and the opposite party supplied him all the relevant documents like statement of accounts, contract notes etc. through physical modes.

 

10. That the complainant had executed the continuous business transactions with the opposite party for the long period of more than 2 years and executed numerous trades regularly. It is further submitted that during his trading tenure with the opposite party, the complainant had deposited Rs.3,20,000/- (Rupees Three Lakh Twenty Thousand) in part at different interval and also collected Rs.26,500/- (Rupees Twenty Six Thousand Five Hundred) as different time. It is further submitted that the complainant had executed his 1^st trade on 19.05.2009 and his last trade was executed on 20.08.2011..
11. That it is further stated that the complainant was settled the account on 03.09.2011 and his remaining credit balance was Rs.5,000/- (Rupees Five Thousand) was released by Cheque in his favour.
12. Complainant thereafter filed rejoinder reiterating therein the averments made     in the complaint and denying all the allegation made in the written statement. In support of his case, the complainant has filed his affidavit of evidence. On behalf of OP, Sh. Manoj Kumar, Authorized Representative filed evidence by affidavit.
13. We have heard the Ld. Counsel for Parties and perused the evidence and material on record as well as their written arguments.
14. On the point of maintainability of the 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 consumer within the meaning of Section 2 (d) (ii) of the Act. However, by virtue of Explanation to section 2 (d) if service are hired for commercial purpose and are exclusively for the purposes of earning a livelihood by means of self employment the, 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 Asalthambl Versus the Company Secretary and others, Revision Petition No. 1179 of 2012, decided by Hon’ble National Consumer Disputes Redressal Commission on 01.08.2012.
15. That Hon’ble National Commission in Gautam Das Vs. Sun Pharmaceutical Industries Limited held, a shareholder cannot be the consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and therefore complaint is not legally maintainable under the Act.
16. That Hon’ble National Commission in various matter held that the consumer Forum has no jurisdiction to decide the dispute regarding the trading or shares and the only remedy available to the aggrieved party is the civil suit. The aforesaid were observed in the following cases:

Samnath Jain Vs. R.C. Goenka, 1(1994) C.P.J. 27(NC)

City Bank Vs. Universal Trading 2(1995) C.P.J. 198 (NC)

R.P. KapoorVs. Bharat Bhushan 3(1997) C.P.J. 80(NC)

G.B. Krishna Reddy Vs. Kalpesh Rasiklal Shah III (1997) C.P.J. 75(NC).

17. In the present case, undisputedly the purpose of investment was creation of wealth by way of sale, purchase ofshares from time to time with the consent of both parties in terms of agreement executed between the parties. The transactions in shares is/are for commercial purpose in the light of Asalthambl’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 seeks redressal of his grievances elsewhere before competent forum/court as per law. In this view off 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.
18. 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  of this order be sent to both parties free of cost by post.

File be consigned to the record room.

Announced in open Commission on 04.05.2023.

 

 

 

(Poonam Chaudhry)

President

 

             (Bariq Ahmad)                                                                                                (Shekhar Chandra)

                      Member                                                                                                          Member