ORDER
SH. RAKESH KAPOOR, PRESIDENT
The complainant is a senior citizen and during the month of September 2011 , she had invested different sums with OP1 . The details of which are as under;
- FDR No. 9345 dated 27.09.2012 of a sum of Rs. 40,000/-for a term of 24 months (Maturity Date : 26.09.2014) with interest @ 12.25% per annum payable quarterly;
b)FDR No. 9518 dated 05.10.2012 of a sum of Rs. 40,000/-for a term of 12 months (Maturity Date : 04.10.2013) with interest @ 11.75% per annum payable quarterly;
c)FDR No. 11024 dated 03.01.2013 of a sum of Rs. 40,000/-for a term of 12 months (Maturity Date : 02.01.2014) with interest @ 11.75% per annum payable quarterly; and FDR No. 11025 dated 03.01.2013 of a sum of Rs. 40,000/-for a term of 12 months (Maturity Date : 02.01.2014) with interest @ 11.75% per annum payable quarterly.
It is alleged by the complainant the aforesaid FDRs were purchased through OP2 being the managers of OP1 with regard to the amount deposited. It is also alleged by the complainant that the OP have given Post Dated Cheques for payment of the interest which was payable quarterly as well as for the principle amount as well. It is further alleged that OP1 had defaulted in payment of the interest as well as the principal amount as the Post Dated Cheques issued by it were dishonoured on presentation to the bank. The complainant had taken up the matter with OP1 who had issued fresh cheques in lieu of the old ones. However, these cheques were also dishonoured. Rather, OP1 has unilaterally renewed the FDRs without any authority / consent from the complainant. It would be of benefit to reproduce paras 9 and 10 of the complaint which carries the averment of the complainant in this regard :-
9. That it is submitted that inspite of the fact that out of the abovesaid 4 (four) Fixed Deposits, 3 (three) Fixed Deposits have matured, yet the opposite party has not honoured the payment of a single Fixed Deposit and on the contrary, the opposite party has suo moto renewed them and sent fresh FDRs to the complainant without knowing or finding out or asking for the complainant's wishes or requirements in this regard. The details of the FDRs renewed by the opposite party are as under: -
- FDR No. NLL / 16190 dated 05.10.2013 of a sum of Rs. 42,339/- for a term of 6 months (Maturity Date : 04.04.2014) with interest @ 11.50% per annum payable quarterly in lieu of FDR No. 9518 dated 05.10.2012 of a sum of Rs. 40,000/- for a term of 12 months (Maturity Date : 04.10.2013) + Interest;
FDR No. NLL / 16326 dated 03.01.2014 of a sum of Rs. 42,339/- for a term of 6 months (Maturity Date : 02.07.2014) with interest @ 11.50% per annum payable quarterly in lieu of FDR No. 11024 dated 03.01.2013 of a sum of Rs. 40,000/- for a term of 12 months (Maturity Date : 02.01.2014) + Interest; and
(iii) FDR No. NLL / 16327 dated 03.01.2014 of a sum of Rs. 42,339/- for a term of 6 months (Maturity Date : 02.07.2014) with interest @ 11.50% per annum payable quarterly in lieu of FDR No. 11025 dated 03.01.2013 of a sum of Rs. 40,000/- for a term of 12 months (Maturity Date : 02.01.2014) + Interest;
A copy each of the aforesaid 3 new FDRs is annexed herewith and marked as
FDR No. NLL / 16190 dated 05.10.2013 of a sum of Rs. 42,339/- for a term of 6 months (Maturity Date : 04.04.2014) has matured, yet the opposite party has not paid the matured amount to the complainant till date.
The complainant request for payment of the amount due has not yielded any positive result. This despite the fact that that the complainant had served a legal notice dated 14.2.2014 which had remained uncomplied with. The complainant had , therefore approached this forum with this complaint alleging deficiency in service on the part of the OPs.
Despite service , OP1 has chosen not to contest the complaint and has been ordered to be proceeded with ex-parte. The complaint has been contested by OP2 who has filed a written statement and has claimed that the complaint against it is not maintainable. Preliminary objections nos 2 to 7 of the written statement filed by OP2 are relevant and are reproduced as under:
2. That the O.P. No.2 has been falsely arrayed as opposite party/ respondent in the present complaint. The O.P. No.2 is a registered broker and Member of the National Stock Exchange of India Ltd. (NSEIL) and Bombay Stock Exchange Limited (BSE) and registered with the Securities & Exchange Board of India (SEBI) for both Cash Segment and for Derivatives segment. The O.P. No.2 is also a member of Central Depository Services Limited (CDSL) and National Securities Depository Limited (NSDL).
3. That the role of the O.P. No.2 in the process of the investment
in the fixed deposit scheme is very limited. The present
Complaint is devoid of any merit against the answering O.P. and has been made simply to give colour to unfounded allegations. The Complainant is well aware of the role of the answering O.P. in the investment of Fixed Deposits. The same is once again summarily narrated for knowledge of this Hon'ble Forum. The Complainant does not come under ambit and scope of definition of "Consumer" defined U/s 2(d) of the Consumer Protection Act, 1986 hence, the present complaint filed under the consumer protection act is not maintainable and deserves to be dismissed out rightly.
4. That when any Company requires funds forlits business then it offers various modes of schemes to raise the monies from thepublic at large such as IPO/ShareSubscription/Debentures/Bonds etc. but not limited there and extended to. Fixed Deposits Scheme also. The pre-printed APPLICATION FORM FOR FIXED DEPOSIT is made available to public free of cost, (in the instant case) through Advisors i.e in this case the Fixed Deposit Scheme has been managed through one of the answering O.P. No.2 i.e. Brokers/Mangers, i.e. SMC Global Securities Ltd, and are made available on public places. People who desire to invest in any schemes including Fixed Deposits are to fill up the application and submit as per terms and conditions and instructions given in the form along with Cheque/D.D. The applicants are free to submit their application directly with the investment companies, registrar, advisors or brokers to the scheme etc. The RTA, Company and the Advisors to the scheme decide the issue the scheme, approve, accept, issue the FD receipt, release of interest and repayment of principal as well interest etc. The RTA may reject the application on various grounds as given in the application forms. The Brokers/Mangers acts to introduce the FD Scheme to the prospective investor. There is no role of the broker after a form reaches a prospective investor. Similarly a collection Centre/brokers/ has no role after the relevant form is sent to the collecting bank/other designated agency and thereafter reaches to the RTA/Advisors/Company and thereafter the issuing company issued the Fixed Deposit Receipt containing all the relevant terms and conditions regarding repayment of interest as well as principal etc. The whole process follows as when the broker receives a form, whether from the intending investor or from any one of his confidence with Cheque, the broker sends it to the Advisors/RTA/Company and its job is over. The Advisors/RTA/Company clears the Cheque and issues necessary documentation directly to the person on the address given on the application form. Once the form is received by a fund house, the fund house and the investor come in direct contact with each other and the broker has no further role. The fund house sends the relevant certificate/statement of account/interest/repayment etc. to the investor directly without any information to the broker. Any change in investment, i.e. amount, change in scheme, renewal, address or others are made by the fund house on the application of the investor only and the two directly correspond with each other. The broker has neither any knowledge nor any role after submission of the application form to the fund house and issue acknowledgment by the fund house to investor. The broker and collection Centre are not vicariously liable for acts or omissions, if any, of the other functionaries nor have any control over them.
5. That the answering Opposite Party has wrongly been impleaded as there is no suggestion or averment nor there is any active role in the process of acceptance of fixed deposit of the O.P. No.2 . and refund of the maturity amount as well as the payment of interest thereon. The answering Opposite Party is a Broker/Manger whose name is pre-printed on the application Forms, which are then made available to the public from numerous places. The role of the answering Opposite Party is limited to forwarding the application form, to the concerned RTA, or Issuing company. The answering O.P No. 2's active role on part of deficiency in service has not been complained against in the whole complaint and hence the answering Opposite Party needs to be deleted from the array of parties and the complaint is liable to be dismissed on ground of mis-joinder of necessary parties.
6. That the op no.2 is a duly registered company under the Companies Act, 1956 having its registered office at 11/6B, Shanti Chamber, Pusa Road, New Delhi - 110005 and one of the branch office located at Daryaganj is engaged in the business - of stock broking services including as syndicate/manager in the fixed deposit scheme of the various issuing company being represented through its authorised representative Mr. Ram Kumar. The copy of the authorization letter accompanying the board resolutions are annexed herewith as Annexure — R/1.
7. That answering Opposite Party no.2 has never rendered its services for the Complainant to accept her if-heed—Deposit¬ Application and never forwarded the same for acceptance and issuing of the fixed deposit receipt by the issuing company/its advisors/its registrar as the same was never been deposited with the O.P.No.2. Further, it should be noted that the answering Opposite Party does not charge any amount for above said alleged services to any person who deposits the duly filled form to the company through O.P.No.2 and therefore the complaint deserves to be dismissed on this ground alone.
We have heard arguments advanced at the bar and have perused the record.
As already stated ,OP1 has not contested the complaint and has been ordered to be proceeded with ex-parte. We , therefore, first take up the question as to whether the complaint is maintainable against OP2 who has claimed that he has been unnecessarily arrayed in this case. The learned counsel appearing for OP2 has forcefully contended that the complainant is not a consumer qua OP2. He has contended that OP2 had not rendered any service to the complainant. He has further contended that OP2 had not received the FDR applications from the complainant nor had forwarded them for acceptance by OP1. It is also contended that OP2 does not charge any amount for the services ,if any, rendered to any person nor had charged any amount for any services rendered to the complainant.
We have considered the contention of the learned counsel appearing for OP2 with which we tend to agree. There is nothing on record except for the bald statement by the complainant that the application for purchase of FDs was routed through OP2. But be that as it may, there is no averment or evidence that OP2 had charged any fee or money for the alleged service. Section 2(i) (d) of the Consumer Protection Act defines “Consumer” and reads as under:-
2 (i) (d) Consumer means any person who
- 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 purposes;
It is, therefore, clear that the complainant is not a “consumer” qua OP2 when no service of OP2 was taken for consideration. We, therefore, hold that the complaint against OP2 is not maintainable and is liable to be dismissed. We order accordingly.
As regards the complaint against OP1 ,there is enough evidence on record that it has been guilty of deficiency of service towards the complainant. The complainant who had purchased FDRs from OP1 was handed over PDCs which included cheques for the interest amount payable quarterly as well cheques for the maturity amount. These cheques on presentation to the bank were dishonoured. Instead of making payment of the amount due OP1 had unilaterally renewed the FDRs without the consent /authority of the complainant. This also amounts to unfair trade practice on the part of OP1 . We, therefore , direct OP1 as under:
- Pay to the complainant a sum of Rs. 128408/- along with interest @ 12% p.a. from the date of deposit till payment.
- Pay to the complainant a sum of Rs 50,000/- as compensation of pain and agony suffered by her.
- Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.
The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum. IF the OP fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on.....................
