Tamil Nadu

South Chennai

CC/446/2014

M/s.Sathya Bama - Complainant(s)

Versus

M/s.Rajinikanth, C/o. Nirmal Bang Securities Pvt Ltd., - Opp.Party(s)

M/s.P.Pandian

03 Jul 2019

ORDER

                                                                        Date of Filing  : 31.10.2014

                                                                          Date of Order : 03.07.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.446/2014

DATED THIS WEDNESDAY THE 03^RD DAY OF JULY 2019

                                 

Mrs. Sathiya Bama,

W/o. Mr. P.S. Sundararaj,

No.1C, Kavarai Street,

Vijayashanthi Apartments,

West Mambalam,

Chennai – 600 033.                                                        .. Complainant.                                       

 

 

                                                                                                   ..Versus..

 

 

1. Rajinikanth,

Area Sales Manager,

C/o. NIRMAL BANG SECURITIES PVT. LTD.,

Sri Madurakripa Towers,

2^nd Floor, New No.51, (Old No.23),

North Boag Road,

T. Nagar,

Chennai – 600 017.

 

2. M/s. NIRMAL  BANG SECURITIES PVT. LTD.,

Rep. by its Managing Director,

No.38-B, Khatau Building, 2^nd Floor,

Alkesh Dinesh Mody Marg,

Fort,

Mumbai – 400 001.                                                 ..  Opposite parties.

 

Counsel for the complainant                 : M/s. K. Pandiyan

Counsel for the opposite parties 1 & 2 : M/s. A.S. Kailasam &

                                                                 Associates

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to refund a sum of Rs.40,000/- invested by the complainant and to pay a sum of Rs.2,00,000/- towards compensation for mental agony, delinquency of service and punitive damages with cost of Rs.5,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that the 1^st opposite party endlessly got in touch with the complainant for investment and gave guarantee, promise and assurance that the investment will fetch monthly good returns to the tune of 10% returns per month on the complainant’s investment.  Believing the sweet words of the opposite parties, the complainant invested a sum of Rs.25,000/- by cheque bearing No.000077 dated:22.03.2012 drawn on Bank of India, West Mambalam Branch, Chennai – 600 033 and the same had been acknowledged by the 2^nd opposite party.  Again, the 1^st opposite party’s Manager had influenced the complainant and the opposite parties company’s declaration the complainant made a second investment of Rs.5,000/- by cheque bearing Cheque No.000080 dated:27.08.2013 drawn on Bank of India, West Mambalam Branch, Chennai – 600 033.   The complainant submits that 1^st opposite party pledge with the complainant’s husband the complainant yet again invested an amount of Rs.10,000/- by cheque bearing No.000092 dated:13.04.2013 drawn on Bank of India, West Mambalam Branch, Chennai – 600 033.  Thereby, the complainant invested a total sum of Rs.40,000/-.   

2.     The complainant submits that the 2^nd opposite party opened a Demat Account and gave credit of Rs.15,000/- in the account instead of Rs.25,000/- and not credited a sum of Rs.10,000/- stating that the said amount for Rs.10,000/- has been adjusted in respect of scheme charges namely ACE Silver Scheme.   The complainant submits that even after repeated requests and demands continuously, the 1^st opposite party made out 2 payments for a sum of Rs.2,000/- and Rs.1,000/- on 10.10.2012 and 10.11.2012 respectively and continued to give pressure for further investment.   The complainant submits that the opposite parties invested the said amount in National Stock Exchange and made “Stock Broker – client Agreement” with the opposite party.  The complainant submits that even after repeated requests, the opposite parties has furnished none of the details regarding the investment.  The complainant submits that she sent a legal notice dated:21.01.2014 to the 1^st opposite party for which, the 1^st opposite party acknowledged the same on 23.01.2014 and the same complaint was also sent to the Regional Manager, SEBI, Chennai on 21.01.2014 also to the 2^nd opposite party and IGRP proceedings meeting was finally held on 27.03.2014 and order of the IGRP also attached herein.   The act of the opposite parties 1 & 2 amount to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 & 2 state that the complainant is an investor in the 1^st opposite party’s company in which, the 2^nd the opposite party is the Main Branch located in Mumbai.  The opposite parties are doing of business with regard to all matters of trading on the platform of the National Stock Exchange Ltd.  The complainant has invested Rs.40,000/- in 3 occasions and entered into a “Stock Broker – client Agreement” dated:27.03.2012  and all the amounts were invested under stock exchange.   Every stock returns is subject to the market conditions and other credentials of the agreement which is entered into between the complainant and the opposite parties are bound by Rules, Bye Laws and Regulations of National Stock Exchange.  The opposite parties 1 & 2 state that the National Stock Exchange is having  grievance redressal mechanism by way of arbitration proceedings.  The opposite parties state that all the investments are subject to trade and market risk.   The opposite parties state that the complainant has  mistaken such a payment as part of the assured return, which is false and she has not understood the market situation properly and therefore, the complaint has to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A5 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B9 are marked on the side of the opposite parties 1 & 2.

5.      The points for consideration is:-

1. Whether the complainant is entitled to get return of a sum of Rs.40,000/- invested with the opposite parties as prayed for?
2. Whether the complainant is entitled to a compensation of Rs.2,00,000/- towards mental agony, deficiency in service and punitive damages with cost of Rs.5,000/- as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard the opposite parties’ Counsel also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended the 1^st opposite party endlessly got in touch with the complainant  for investment and gave guarantee, promise and assurance that the investment will fetch monthly good returns to the tune of 10% returns per month on the complainant’s investment.  Believing the sweet words of the opposite parties, the complainant invested a sum of Rs.25,000/- in the March 2012 and another sum of Rs.5,000/- in the month of August and another sum of Rs.10,000/- in the month of April 2013.  Thereby, the complainant invested a total sum of Rs.40,000/- which is admitted in written version.   Further, the contention of the complainant is that the 2^nd opposite party opened a Demat Account as per Ex.A2 and gave credit of Rs.15,000/- in the account instead of Rs.25,000/- and not credited a sum of Rs.10,000/- stating that the said amount for Rs.10,000/- has been adjusted in respect of scheme charges namely ACE Silver Scheme.   But on a careful perusal of records, there is no document filed by the opposite parties for such adjustment as scheme charges which amounts to deficiency in service.

7.     Further the contention of the complainant is that even after repeated requests and demands continuously, the 1^st opposite party made out 2 payments for a sum of Rs.2,000/- and Rs.1,000/- on 10.10.2012 and 09.11.2012 respectively as per Ex.A3 and Ex.B4 to Ex.B6 and continued to give pressure for further investment.   Further the contention of the complainant is that the opposite parties admittedly invested the said amount in National Stock Exchange and made “Stock Broker – client Agreement” with the opposite party.  But none of the document produced by the opposite party for such investment before the National Stock Exchange and the returns furnished by the National Stock Exchange. Further the contention of the complainant is that even after repeated requests, the opposite parties has furnished none of the details regarding the investment proves the unfair trade practice exercised by the opposite parties.  The statement of accounts, Ex.B4, Ex.B5 & Ex.B6 produced by the opposite party is apparently clear that the investment made by the complainant.  There is no iota of evidence on the part of the opposite parties to prove the returns on the investment from the National Stock Exchange.  Further the contention of the opposite party is that due complaint has been filed before IGRP which passed order as per Ex.A5 dated:24.03.2014 directing to approach the proper Forum particularly arbitration proceedings. The complainant is claiming the refund of the deposit amount of Rs.40,000/- and compensation of Rs.2,00,000/- towards mental agony, delinquency of service and punitive damages.

8.     The learned Counsel for the opposite parties 1 & 2 would contend that the complainant is an investor in the 1^st opposite party’s company in which, the 2^nd the opposite party is the Main Branch located in Mumbai.  The opposite parties are doing of business with regard to all matters of trading on the platform of the National Stock Exchange Ltd.  The complainant has  invested Rs.40,000/- in 3 occasions and entered into a “Stock Broker – client Agreement” dated:27.03.2012  and all the amounts were invested under stock exchange.   Every stock returns is subject to the market conditions and other credentials of the agreement which is entered into between the complainant and the opposite parties are bound by Rules, Bye Laws and Regulations of National Stock Exchange.   But the opposite parties has not furnished any Rules, Bye Laws and Regulations of National Stock Exchange to the complainant or produced before this Forum.   

9.     Further the contention of the opposite parties is that the National Stock Exchange is having  grievance redressal mechanism by way of arbitration proceedings.  The complainant without taking any arbitration proceedings and complying the arbitration clause filed this complaint in this Forum which has no jurisdiction.  But it is very clear from the records and pleadings that all transactions between the complainant and the opposite parties were taken place within the territorial jurisdiction of this Forum.   Equally, the law is well settled that the arbitration proceedings is not a bar to the consumer complaint.   The opposite parties also has not initiated the said Arbitration Proceedings. Further the contention of the opposite parties is that all the investments are subject to trade and market risk.   But no iota of evidence to prove such risk.   Equally, the opposite parties has not produced any evidence to prove the manner of investment or the amount invested by the complainant in N.S.E. and the returns or loss of the stock exchange authority.  On the other hand, the opposite parties paid a sum of Rs.3,000/- in two occasions without any rhyme or reason proves the deficiency in service and unfair trade practice.   Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally liable to refund a sum of Rs.40,000/- being the amount invested by the complainant and to pay a sum of Rs.20,000/- towards compensation for mental agony with cost of Rs.5,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to refund a sum of Rs.40,000/- (Rupees Forty thousand only) being the amount invested by the complainant and to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 03^rd day of July 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	23.03.2007	Copy of Saving Account Statement of Bank of India
Ex.A2	27.03.2012	Copy of Account Code No.CHE511, NSDL BO ID:11069532
Ex.A3	01.04.2012 to 05.09.2013	Copy of Accounts Statement of ID:11069532
Ex.A4	21.01.2014	Copy of legal notice
Ex.A5	24.01.2014	Copy of Order of the IGRP

 

OPPOSITE PARTIES 1 & 2’ SIDE DOCUMENTS:-  

Ex.B1		Copy of SMS & Call Logs between the complainant and opposite parties for the shares transactions
Ex.B2		Copy of SMS & Call Logs between the complainant and opposite parties for the shares transactions
Ex.B3		Copy of Daily Digital contract notes and the transaction Statements sent to the complainant
Ex.B4		Copy of Financial Statement of the complainant for the period 29.03.2011 to 31.03.2012
Ex.B5		Copy of Financial Statement of the complainant for the period 01.04.2012 to 31.03.2013
Ex.B6		Copy of Financial Statement of the complainant for the period 01.04.2013 to 31.03.2014
Ex.B7		Copy of Summary of the transactions in the Cash segment of the complainant for the year ending 31.03.2013
Ex.B8		Copy of Summary transactions in the Futures & Options segment of the complainant for the year ending 31.03.2013
Ex.B9		Copy of Summary transactions in the Futures & Options segment of the complainant for the year ending 31.03.2014

 

                              

MEMBER                                                                                PRESIDENT