The present appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of the complainants to assail the final order/judgment being Order No. 34 dated 16.03.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit – I (in short, ‘Ld. District Forum’) in Consumer Compliant No. 65/2012 whereby the complaint lodged by the appellants under Section 12 of the Act was dismissed on contest without any order as to costs.
The appellants herein being complainants lodged the complaint before the Ld. District Forum asserting that they being members of one family have purchased equity shares for their personal benefits from the Opposite Party Nos. 1 & 2 and the share certificates in respect of three complainants were 600, 300 and 300 shares respectively. The complainants have stated that the O.P. No. 3 sent a dividend in the year of October, 1995 to them .The complainants have alleged that the O.P. No. 1 & 2 have failed to send share certificates to them or send any amount for the said shares till date. The complainants have further stated that as per buy back policy the O.P. accepted the complainants’ share but failed to repayment the amount in favour of the petitioners. On 16.07.2008 the O.P. No. 1 wrote a letter and informed that the aforesaid shares were transferred to one Acquirer Company on 29.07.2003 but the Opposite Party failed to repayment the amount for the said transfer shares to the complainants. Hence, the appellants approached the Ld. District Forum with prayer for several reliefs including a direction upon the Opposite Parties to send equity shares certificate in the name of the complainants, to pay compensation of Rs. 5,00,000/- and litigation cost of Rs. 10,000/- etc.
The Respondent Nos. 1 & 2 being O.P. Nos. 1 & 2 by filing a written version have stated that the complaint as framed is not maintainable either in law or in facts. It has also been stated that the complaint is barred by limitation.
Respondent No. 3 being Opposite Party No. 3 by filing separate written version has stated that since the dispute is relating to year 2003, the complaint is barred by limitation and the same is liable to be rejected.
After assessing the evidence led by the parties and other materials available on record, Ld. District Forum by the impugned order dismissed the complaint, which prompted the complainants to come up in this Commission with the present appeal.
Mr. Debesh Halder, Ld. Advocate for the appellants has assailed the order on the ground that the Ld. District Forum has failed to appreciate that the appellants have jointly purchased some share for their personal benefits and the respondents’ authority duly issued the said shares to the appellants’ name and the respondent no. 3 send dividend to the appellants but Respondent No. 1 & 2 failed to send share certificates to them till the date. He has further submitted that the dispute is amenable before the Forum constituted under the Act and it is not barred by limitation. In support of his contention, Ld. Advocate for the appellants has placed reliance on several decisions like – (1) (1994) 4 SCC 225 [Morgan Stanley Mutual Fund – vs. – Kartick Das]; (2) AIR 2000 SC 1461 [Patel Roadways Ltd. – vs. – Birla Yamaha Ltd.]; (3) III (2015) CPJ 219 (NC) [B. Subbarao – vs. – Sun Pharmaceuticals Ltd. & Ors.]; (4) a decision of this Commission reported in (2016) 2 WBLR (CPSC) 245 [Suresh Kumar Agarwal – vs. - M/s. Reliance Industries Ltd. & Anr.]; (5) IV (2014) CPJ 509 (NC) [Richard Raja Singh – vs. – Four Motor Company Ltd.] and (6) 1998 (1) CLJ 531 [M/s. Inter Sales – vs. – M/s. Reliance Industries Ltd. & Ors.]
Per contra, Ms. Purnima Choudhary, Ld. Advocate for the Respondent No. 3 has contended that the appellants cannot be categorised as ‘consumer’ as defined in Section 2(1)(d) of the Act and further the complaint is hopelessly barred by limitation and as such the impugned order should not be interfered with. To fortify her submission, Ld. Advocate for the Respondent No. 3 has referred to a decision reported in III (2014) CPJ 396 (NC) [R.R. Equity Brokers Pvt. Ltd. & Anr. – vs. – Dinesh Kumar Jaiswal].
Respondent Nos. 1 & 2 did not appear to contest.
I have travelled the pleadings of the parties and other materials available on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
The materials on record indicate that the appellants who are members of one family and presently residing in the same address at Burrabazar, Kolkata have purchased 12,000 equity shares valued at Rs. 1,20,000/- for their personal benefits from the Respondent Nos. 1 & 2. In the petition of complaint, the appellants have nowhere stated that they were doing the share trading business for self-employment nor it has been pleaded that the services provided by the appellants are being availed exclusively for the purpose of earning their livelihood by means of self-employment. In the case of Harsolia Motors vs. National Insurance Company reported in I (2005) CPJ 27 it has been held that the dispute relating to commercial purpose would be excluded from the purview of the Act.
For appreciation of the matter, it would be pertinent to have a look to the definition of ‘ consumer’ as defined in Section 2(1)(d) of the Act which reproduces below :
“Consumer means any person who –
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
- hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.
Explanation:- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes. Explanation to the Section creates and exception and states that clause ‘commercial purpose’ does not include used by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.
In a decision reported in II (2012) CPJ 181 [Vijay Kumar – vs. – Indusind Bank] the Hon’ble National Commission has held:
“Since, a petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the overdraft facilities from the respondents, 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”.
The facts and circumstances of the case indicate that the appellants are trading regularly in the share business which is the commercial activity, under these circumstances, they would not fall under the definition of ‘consumer’ as defined in the Act. Moreover, regular trading of sale and purchase of shares is a purely commercial activity and the only motive is to earn profits and the appellants in their petition of complaint also have mentioned the same. Therefore, when the appellants did not mention that they used to do share trading for their livelihood by means of self-employment, there cannot be any doubt that this activity was purely commercial in nature. On that ground alone, the complaint should have been dismissed.
Therefore, when the materials on record make it abundantly clear that the appellants/complainants are not ‘consumer’ within the meaning of Section 2(1)(d) of the Act, the Ld. District Forum was quite justified in dismissing the complaint. In other words, as there is no shortcoming or loophole in the impugned order, the impugned order should not be interfered with.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs in this appeal.
The final order/judgment being Order No. 34 dated 16.03.2017 passed by the Ld. District Forum in Consumer Compliant No. 65/2012 is hereby affirmed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – I for information.
