Delhi

New Delhi

CC/175/2014

Sh. Rajesh Kunal Kashari - Complainant(s)

Versus

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

07 Jan 2020

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC.175/2014                                    Dated:

In the matter of:

Sh. Rajesh Kumar Kesari,

D-13-A, G.F. Alankar Cinema,

Lajpat Nagar-II, New Delhi-24.

                   ……..COMPLAINANT

VERSUS

1. M/s SMC Global Securities Ltd.,

98, Netaji Subhash Marg, Darya Ganj,

New Delhi-02.

Through Branch Manager/Authorized Signatory.

Also at:

 

M/s SMC Global Securities Ltd.,

11/68, Shanti Chamber, Pusa Road,

New Delhi-05

 

 

2.            MCX,

(Multi-commodity Exchange of India Ltd.),

501-505, 5^th Floor, World Trade Centre,

Babar Road, Connaught Place,

New Delhi-110001.

 

Also at:

 

3.            MCX,

(Multi-commodity Exchange of India Ltd.),

CTS No.255, Exchange Square,

Sureu Road , Andheri East,

                   Mumbai-400093.

Opposite Parties.

ARUN KUMAR ARYA, PRESIDENT

ORDER

The complainant has filed the present complaint against the OPs 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 Trading Account bearing No.FFM0026 DT. 7.10.2011. At the time of opening the account, the official of the OP-1 assured that if the price of the commodity fluctuate and margin money come less than 4 % to 5%, then OP-1 would call the complainant and collect the cheque for balance amount of margin money.  On 29.2.2012, on the advise of official of OP-1, the complainant purchased 5 kg. gold  @ Rs.28768/-per ten gram and later on  purchased 3 kg.  The complainant was having Rs.9,06,371.93 in his trading account. On the same day the official of the OP sold 5kg. gold of the complainant on an average rate of Rs.27,863.33/-per ten gram., causing loss to the complainant. The complainant met with the official of OP-1, but OP-1 did not accept its mistake as such on 18.6.2012, the complainant lodged a complaint with OP-2 to get the money refunded but all in vain.  The complainant therefore approached this Forum for redressal of his grievance. 

2.       The notice of complaint was issued to the OPs, both 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  dismissal with exemplary costs.

3.       In support of his case, the complainant has filed his affidavit in evidence. on behalf of the OP-1, the affidavit in evidence of Sh. Manoj Kumar, Authorized Representative and on behalf of OP-2, Mr. Ashok Kumar Mahapatra, Vice President(Legal)  filed his evidence by way of affidavits.

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 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 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 gold from time to time with the consent of both parties in terms of agreement executed between the parties. The transactions in gold is 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 07/01/2020.

 

 (ARUN KUMAR ARYA)

         PRESIDENT        

                                (NIPUR CHANDNA)                                       (H M VYAS)

                                       MEMBER                                                    MEMBER