PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) The is the complaint regarding the deficiency in service on the part of Opposite Parties as OppositeParties did not respond to his application under RTI Act, and did not provide the information required by the Complainant.
2) The facts of the case as alleged by the Complainant are that the Complainant had opened an account No.46177 with Opposite Party No.1 Bank of Dadar (W), for O.D. facility of Rs.2 Lacs against pledging of shares of the Complainant. The Complainant has stated that he had offered the Opposite Party No.1 to pay back their outstanding in full. (Here the Complainant has not mentioned as to actually how much amount the Complainant has borrowed from the Opposite Party and what were the actual outstandings dues and payable by him to the Opposite Party No.1. How much amount he had offered to pay back ?). The Complainant has further added that, the Opposite Party No.1 did not accept his offer. He has further added that, the Opposite Party No.1 was informed that if his offer was not accepted, the Opposite Party No.1 would not be entitled to any interest on the outstanding.
3) It is alleged by the Complainant that the Opposite Party No.1 has been forcefully keeping his shares with them and charging the interest on the outstanding balance amount.
4) The Complainant has further stated that the Opposite Party No.1’s Dadar (W) branch vide, its letter dtd.26/05/08, demanded a sum of Rs.5,40,945.35 towards their dues without mentioning the actual principal amount and interest thereon. The Complainant refused to pay the above amount. Thereafter, the Opposite Party No.1’s Dadar (W) branch informed the Complainant vide letter dtd.27/11/08 that it sold the Complainant’s shares of NESCO at total amount of Rs.5,52,829.90 and adjusted this amount against the outstanding dues and still an amount of Rs.10,541.45 was due and payable by the Complainant.
5) The Complainant asked the Opposite Party No.1 branch to provide the copies of the relevant bills, contracts of the broker through which they had sold the shares. The Complainant also asked the Opposite Party No.1 as to why the Opposite Party No.1 did not sell more shares to clear all the outstanding dues and kept an amount of Rs.10,541.45 balance. The Opposite Party No.1 did not respond to the Complainant’s above request. Even Opposite Party No.1 did not respond to the application under RTI Act, in this respect.
6) The Complainant has further stated that in a reply to the Advocate’s notice, the Opposite Party No.1 Dadar branch has mentioned the name of Opposite Party No.2 through which Opposite Party No.1 had sold the shares. The Complainant submitted an application under RTI Act to Opposite Party No.2 seeking information from the Opposite Party No.2 but Opposite Party No.2 also not provided the required information. It is further alleged by the Complainant that not responding to his applications under RTI Act amounts to deficiency in service.
7) Finally it is prayed by the Complainant that the Opposite Parties be directed to provide the Complainant information/documents sought in his application under RTI Act. It is also prayed for the cost and compensation from the Opposite Parties as well as any other & further relief as this Forum may deem fit.
8) The Complainant has attached the xerox copies of the following documents in support of his case -
a) Letter from the Complainant addressed to Oriental Bank, Dadar (W) branch – dtd.12/08/97.
b)Application under R.T.I. Act, dtd.02/07/09 addressed to Opposite Party No.1.
c)Application under R.T.I. Act, dtd.22/10/09 addressed to Opposite Party No.2.
d)Order of the Hon’ble National Commission,dtd.28/05/09 in R.P. No.1975/05.
9) The complaint was admitted and notices were served on the Opposite Parties. Opposite Parties filed their written statements. The Opposite Party No.1 in its written statement has stated that the complaint is barred by the limitation provision U/s. 24 (A) of the Consumer Protection Act, 1986.
10) It is admitted by the Opposite Party that the Complainant was granted over draft facility of Rs.2 Lacs for one year only against the pledge of shares with 50% margin interalia of 600 shares of NESCO Ltd. as per letter dtd.17/05/95. The Complainant was called from time to time to clear the dues in A/c. No.46177. Statement of accounts was sent to the Complainant but the Complainant committed breach of the terms of the letter dtd.17/05/95. The main contention of the Opposite Party is that there were dues payable by the Complainant and he was not clearing these dues. Therefore, it sold 550 shares of NESCO Ltd. in 2008 (para 9) at the available quoted price and appropriated the proceeds of Rs.5,52,523/- towards the dues. It is further averred by the Opposite Party No.1 that this sale of shares of the Complainant was as per the norms of the Opposite Party and as per guidelines issued by the Reserve Bank of India. However, in this respect also the Opposite Party No.1 has not produced any norms in writing as claimed by the Opposite Party No.1 and the guidelines of the R.B.I.
11) The Opposite Party No.1 has averred that the Opposite Party No.1 is fully justified in the sale of the shares of the Complainant pledged with it and appropriation of the proceeds thereof towards the dues payable by the Complainant. Therefore, it is contention of the Opposite Party No.1 that there is no violation of any norms or terms or law. The Opposite Party No.1 has further submitted that the above facts were brought to the notice of the advocate of the Complainant by giving replies to his notice but inspite of the above facts the Complainant has filed the complaint and hence, the Opposite Party No.1 denied each and every claim of the Complainant and relief prayed by him in his complaint.
12) The Opposite Party No.1 has admitted that the Complainant in 1997 had offered to settle the dues but inspite of several requests during 1997 to 2006, he did not pay the dues as per his offer. As per letters dtd.20/03/06 & 20/10/06, the Complainant was called upon to settle the dues in all at 92,000/- but Complainant did not pay the same. Then the Opposite Party No.1 by its letter dtd.26/05/08, called upon the Complainant to clear the total outstanding of Rs.5,40,945.35 as on 30/04/08 further apprising the Complainant that the Opposite Party No.1 shall sell & dispose off the pledged shares at the available market price as per terms of the O.D. facility given to the Complainant. As the Complainant did not respond to the letter of Opposite Party No.1, it sold the 550 shares and appropriated the proceeds against the dues payable by the Complainant as mentioned in para 10 above, as per the bill dtd11/08/08 and 07/08/08. And this was intimated to the Complainant vide its letter dtd.27/11/08 and also the Complainant was called upon to pay the sum of Rs.10,541.45 still due from him.
13) The Opposite Party No.1 has further stated that there was no any request from the Complainant about the details of shares nor did he make any inquiry about shares. The Opposite Party No.1 has also denied the contents of para 5 & 6 containing that the Complainant asked the Opposite Party No.1 to provide copies of relevant bills/contracts of concerned broker through which the Opposite Party No.1 sold those shares and also the query as to why Opposite Party No.1 did not sell further more shares to clear the balance amount due from the Complainant (Rs.10,541.45). The Opposite Party No.1 has further stated in para 10 of the reply that the application under RTI Act had been duly replied by the Opposite Party No.1 as well as Head Office vide letter No.HO/P & D TRI/AP/116/2007/9737 dtd.19/10/07.
14) The Opposite Party No.1 has finally submitted that the transactions done by the Complainant with Opposite Party No.1 are to b tried by the Civil Court & this Forum does not have the jurisdiction to entertain this complaint & hence, it is proved that this complaint be dismissed with cost. The Opposite Party No.1 has attached the xerox copy of Form No.103 dtd.17/05/05 i.e. letter of sanctioning over draft facility to the Complainant.
15) Thereafter, the Opposite Party No.2 also filed its written statement wherein it has stated that it has searched in its computer system to trace the relevant information. But it has not been found in the data available with Opposite Party No.2. The Opposite Party No.2 has further submitted that it is ready & willing to give required information if the Complainant gives correct details of DEMAT Account and correct name of the Complainant appearing in the record of Opposite Party No.2. The Opposite Party No.2 has further stated that apparently the dispute is between Opposite Party No.1 & the Complainant and hence, it may be discharged from the complaint or the Complainant be directed o cooperate in giving complete information.
16) Thereafter, on 10/11/2010, the Opposite Party No.2 filed its affidavit of evidence wherein it is clarified that before the filling of its written statement. Opposite Party No.2 was not in a position to find the details of transactions sought by the Complainant. But after having personal meeting with the Complainant and after receiving the copy of the written statement of Opposite Party No.1, Opposite Party No.2 found the details of 550 shares of NESCO Ltd. debited from the demat account of Opposite Party No.1 being client ID No.10727965.
17) The Opposite Party No.2 has specifically stated that Opposite Party No.1 had wrongly mentioned in its written statement that it had sold 550 NESCO Ltd. Shares for Rs.5,52,895.90 through Opposite Party No.2 on two different dates. It is vehemently clarified by the Opposite Party No.2 that it is not a stock broker and hence, it did not sell any shares. It is only a depository participant of shares. It has kept only the relevant shares in dematerialized form in the account of Opposite Party No.1 and the said shares were debited after having executed the valid instructions. It has nothing to do with the value of the shares. From the transaction it is seen that only 550 numbers of shares were debited from the account of the Opposite Party No.1. The Opposite Party has vehemently averred that it is only a custodian of the shares of the account holder and it has acted upon the valid instructions of Opposite Party No.1 and accordingly debited 550 NESCO Ltd. shares on 06/08/08. These shares were not sold by Opposite Party No.2. The Opposite Party No.1 also filed its affidavit of evidence and reiterated the facts and points mentioned in its written statement. The Opposite Party No.1 has attached the following documents as stated below alongwith the affidavit of evidence.
(1) Letter dtd.17/05/95 (over draft order), Xerox copy dt.16/08/06, Letter dtd.18/04/2000, Letter dtd.20/03/06, Letter dtd.26/10/06, Letter dtd.05/12/06, Order dtd.09/01/07, Letter dtd.27/07/07, Letter dtd.26/05/08, Letter dtd.18/08/08, Letter dtd.14/02/09, Reply dtd.02/03/09, Letter dtd.18/05/09.
18) Thereafter, the Opposite Party No.2 filed additional affidavit of evidence incorporating new point that, in view of judgement dtd.03/09/07, passed by the Central Information Commission, it is held that Opposite Party No.2 i.e. M.G. Director, Stock Holding Corporation of India Ltd. is not covered under the term “Public Authority” within the provision of RTI Act, 2005. The Opposite Party also attached the copy of the judgment with this affidavit.
19) It is very strange that in para 3 of the additional affidavit dtd.17/01/2011 and filed on 09/02/2011 Opposite Party No.2 has averred that “I repeat, reiterate and confirm all the statements and submissions made in the written statement, previously filed affidavit of evidence as if the same are set out herein seriatim and same be treated as part and parcel of this affidavit. Further in para 4, it is stated by the same person, making the affidavit that, “Opposite Party No.2 crave leave of this Hon’ble Forum to treat this additional affidavit of evidence and the said affidavit of evidence dtd.22/12/2010 stands withdrawn being void in nature for reasons above.” Thus, the two averments are quite contradictory & even not grammatically correct. To add to it, there is no affidavit dtd.22/12/2010. The affidavit on record is dtd.20/12/2010 & filed on 21/12/2010.
20) Again there is a discrepancy in para No.6 & 7 regarding the party who transferred the shares. However, it is seen that the Opposite Party No.1 has sold these shares through a stock broker viz Senator Securities Pvt. Ltd., on 08/08/08 and 12/08/08 (as per Exh.‘C’ attached to the additional affidavit). The Opposite Party No.2 has reiterated in this additional affidavit that it has acted only as a Demat account operator and nothing more than that. The Opposite Party No.2 has finally prayed that it may be discharged from the proceeding. The complaint be dismissed with cost.
21) The Opposite Party No.2 has attached the xerox copies of order of the Central Information Commission dtd.31/07/09 stating that the Opposite Party is not a ‘public authority’ within the meaning of Section 2(h) of the RTI Act, 2005 as the management of the Opposite Party No.2 is entirely private.
22) Thereafter, the Complainant filed a letter which is named by him as affidavit of evidence cum written argument wherein he reiterated the facts mentioned in complaint and denied the points raised by the Opposite Parties. However, this document is actually cannot be treated as his affidavit as it is not before any magistrate/notary or a registrar of this Forum. It is a simple singed statement by the Complainant.
23) The Complainant told the Forum that said signed statement should be treated as an affidavit and also as an written and oral argument. Both the Opposite Parties are absent.
24) We perused all the papers submitted by the Complainant, Opposite Party No.1 & 2 and our findings are as follows –
Although the Complainant has not averred in the complaint regarding his occupation, from the perusal of entire complaint it is clearly seen that the Complainant has availed the services of Opposite Party No.1 for over draft facility after pledging shares of different companies. Thus, it is obvious that he is dealing in share business. From the list of the shares the following shares were kept with the Opposite Party No.1 by the Complainant.
1. |
Bhageeratha Engineering Ltd. Company |
400 shares |
2. |
Bharat Gears Ltd. |
50 Shares |
3. |
Aurangabad Paper Mills Ltd. |
50 Shares |
4. |
JCT Ltd. |
200 Shares |
5. |
Vivid Chemicals Ltd. |
500 Shares |
6. |
---------------“--------------- |
500 Shares |
7. |
Kabra Extrasiontecknic Ltd. |
200 Shares |
8. |
Adhikari Brothers – Television Network Ltd. |
400 Shares |
9. |
---------------“---------------- |
500 Shares |
10. |
Samkarg Piston Ltd. (Piston & Rings Ltd.) |
500 Shares |
11. |
Nesco Ltd. |
50 Shares (600 before the disputed transaction |
12. |
Kalyani Forge Ltd. |
500 Shares |
13. |
Bharat Gears Ltd. |
250 Shares |
14. |
Elpro International Ltd. |
600 Shares |
15. |
Graphite India Ltd. |
2100 Shares |
16. |
Somkarg Piston Ltd. (Samkrg Piston & Rings Ltd.) |
100 Shares |
17. |
Bharigath Engineering |
600 Shares |
25) From the above list of shares owned by the complaint it is seen that the Complainant is dealing in the shares. He has availed the O.D facility from Opposite Party No.1. This facility has been availed of by the Complainant as a part of his share business. Nowhere in this complaint he has mentioned that this was done for earning his livelihood by self employment. Therefore, in our candid view, the services availed of by the Complainant from the Opposite Parties are for his share business which amounts to commercial activities. Thus, the service rendered by the Opposite Parties are for the commercial purpose and hence, the Complainant is not a consumer within the meaning of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986.
26) Opposite Party No.1 i.e. the Oriental Bank of Commerce, Dadar (W) Branch, Mumbai is situated in Dadar West which does not fall in the jurisdiction of this Forum. Therefore, this Forum has no territorial jurisdiction to entertain this complaint against Opposite Party No.1.
27) Opposite Party No.2 is the Director Stockholding Corporation of India Ltd. It is a private body and as per the order of the Central Information Commissioner dtd.31/07/09, it is held that “SHCIL is also entirely private.” SHCIL is not a public authority within the meaning of Sec.2(h) of RTI Act and hence, does not fall under the purview of RTI Act, 1905.
28) In view of the observations mentioned in para at 24 to 27 above we are of the candid opinion that this compliant is not tenable before this Forum and this Forum does not have jurisdiction to entertain this complaint. Hence, we pass the order as follows -
O R D E R
i.Complaint No.45/2010 is hereby dismissed for the reasons mentioned in para 24 to 27 above.
ii.There is no order as to cost.
ii Certified copies of this order be furnished to the parties.
