JUDGEMENT

          Complainant by filing this complaint has submitted that he opened an account no. SR 6295 with Rs.500/- on 16.08.2010 through their Relationship Manager Equity Business, Sh. Vijay Prakash Hazari who is the Relationship Manager of Equity Business and as per his persuasion, complainant opened the above account with an assurance that daily average income of Rs.750/- will be received by the complainant if he deposited Rs.50,000/- instantly by depositing the transaction in share and also assured to compensate him any loss arising out of share trading.

          In obedience to his promise of the said Vijay Prakash Hazari and in anticipation of a steady income after retirement from service, complainant deposited Rs.50,000/- on 25.10.2010 through the said V.P. Hazari.  But it was specifically mentioned by the complainant as pre-condition that neither transactions can be made in the account of the complainant with the company nor the complainant would order any trade or otherwise without the authorized of the complainant said Hazari agreed to such conditions.

          Since, opening of the same Mr. Hazari withheld executed documents on some pretext or the other and same are KYC form, copy of member constituent agreement, copy of risk disclosure document and statement of accounts for fund/securities and practically some are never delivered to the complainant by the company.  Further it was subsequently detected that the said Hazari was an employee of A.M. Ltd. of Belurmath, Bally, Howrah and complainant found that the company operated his trading and depository account arbitrarily since 26.10.2010 without taking any authorization from the complainant. Also the complainant detected subsequently that the margin requirement exceeded from one day i.e. since 26.10.2010 and the complainant further detected that the company used his fund of Rs.50,000/- for financing their own trades.

          Complainant further found that access to browsing his account was denied and delayed by the company till 09.11.2010.  Fact remains that complainant never placed any order whether online, telephonic or personally with the said company and each and every trade as appearing in his account was made by the said Vijay Prakash Hazari of the complainant who did not hold any authority.

          Further complainant never authorized the said Hazari or the company to trade on his account nor the complainant approached Ms Poonam Sheth an authorized dealer of the company for trading in his account nor did she ever communicate the complainant for any trading in his account.

          Thereafter complainant made several requests to the ops relating to transaction dated 16.11.2010 and client margin information for trade dated 16.11.2010 and in such a manner several letters were sent but none of the said contract notes were digitally signed and incidentally shares of different companies, such as Bank of India, Central Bank of India and got unauthorized distressed sale incurring a total loss of Rs.31,887.43 paisa  between 23.11.2010 and 26.11.2010.  So, the complainant requested the company to refund his deposit of Rs.50,000/- on 29.11.2010 and the company paid no heed and for the above circumstances, complainant being cheated and for adopting unfair trade practice by the op filed this complaint for relief.

          On the contrary op by filing written statement submitted that complainant is a consumer as there is no existence of relationship of buyer and seller between the complainant and the op u/s 2(1) (d) of the Act.  It is further submitted that complainant was trading and dealing in securities, for generating profit by purchase and re-sale depending upon various dynamics and therefore complainant is not entitled to avail benefits under this Act.

          Further it is submitted that relationship between the complainant and the op is not that of a buyer and a seller as defined in the Act because the complainant is claiming compensation for the losses incurred by complainant in speculative trades which are commercial in nature and in this regard op submitted that a consumer under C.P. Act is not for entertaining or compensating speculative transactions or losses and in view of the settled position of law.  So, the present complaint should be dismissed and practically complainant is bound by the Member Client Agreement and it is Byelaws, Rules and Regulations of Exchanges and moreover in that byelaws and client registration form Member Client Agreement will prove the entire fact and fact remains the present complaint is barred by limitation in view of the fact, the above cause of action arose on 29.11.2010 whereas this complaint was filed on 07.11.2012.  So, it is also time barred.  It is further submitted that complainant got all papers after opening such account but he has suppressed all those facts and for which the present complaint should be dismissed.

                                                   Decision with reasons

          On hearing the argument as advanced by the complainant and the Ld. Lawyer for the op and after proper meticulous study of the complainant’s written statement, it is found that the complainant opened the share trading account and entered into an agreement by executing the said agreement for trade and that was done by the complainant himself.

          Further from the document it is proved that as per contract there is basic risk involving in the trading on stock exchange (equity and other instructions) and as per said agreement the Brochure cannot be held accountable for profit and loss made therein and as per regulation of combination Risk Disclosure Document (NSE/BSE) purchase and sells of security are executed into instructions and authorizing of the complainant and in all cases the amount for consideration for selling shares has been deposited in the complainant bank account and statement of account confirmed the same and complainant after receiving the amount of the shares and enjoyed the benefit no doubt and practically complainant has failed to deny that he received the statement of account regularly.  So, considering that fact, it is clear that complainant was informed about the transactions which are also filed by the complainant.

          After considering the argument of the complainant and Ld. Lawyer for the op, it is found that in this case there is an agreement and no doubt share selling and purchasing is trade for benefit but question is whether they are liable or not.  So, in this regard we have gone through the agreement wherefrom clause 2B it is specifically mentioned that he shall be the wholly responsible for all his investment decisions and trades and as per clause 2C -  the failure of the client to understand the risk involved shall not render a contract as void or voidable and the client shall be and shall continue to be responsible for all the risks and consequences for entering into trades in the segments in which the client chose to trade.

          Moreover as per agreement it is specifically mentioned in clause-1.3.11 that in case of any complaint member of register share broker the client (complainant) should address to the complainant as may be to NSE and BSE from time to time and as per clause 6 such a complaint shall be decided as per rules of laws under the claim under investigators protection found power is vested to the said authority for settlement of the claim and fact remains that the complainant cannot go beyond control and as per agreement complainant must have to place his dispute or grievance before Security Exchange Board but complainant has not adopted that procedure.

          Moreover considering the SEBI the rules and act dispute shall be always decided by their authority for redressal and the grievances of the client in all respect.  So considering all the fact and materials and clause of the contract it is clear that complainant was wholly responsible for all investment decisions and at the same time complainant as investors was well aware of the fact about the risk of investment in the said share trading because it bears upon protection of the market and also other factors.

          Moreover as per clause 1.1 and 1.2 of the combined risk disposal document for capital market it is specifically stated that there is no high risk volatility and risk of lower liquidity and also risk of wider spreads or risk of reducing orders and everything were know to the complainant when he executed the same as per contract so the complainant should be aware of the risk factor also.  Further from the said rules and regulations it is clear that the risk factor is always in such case client should undertake if he understands the nature of the direct relationship into which complainant is entering and understand of his risk and in the contract it is specifically mentioned that they are varying ailment of risk and client should therefore carefully considered whether such trade is stable for him.  In the light of his financial condition if any client invest in some trade profit and loss he shall be wholly responsible for the gaining whatsoever though risk factor remains with such trade.

          Another factor is that more and more occasions clauses are in the contract.  So considering that fact we are convinced that complainant are entitled to in share trade in purchasing and selling shares knowing fully well risk factor and it is specifically mentioned that chance of loss in share because there is market volatility. So, by investing money (selling and purchasing) it has its risk so under any circumstances the NSE or BSE or agent are not responsible.  So, considering that we are convinced to hold that the present trade is a commercial trading and complainant is member of such share trading what he cannot ignore.

          Further considering the ruling reported in II (2002) CPJ 4 (NC) and also III (2006) CPJ 350 we have gathered that C.P. Act is not for entertaining to compensate speculative transaction or loss and as because the complainant’s present complaint is related to speculative purchase and sale of shares and about his loss of share.  But fact remains the complainant cannot claim deficiency of service against the op.  Moreover after considering the above ruling and present fact and circumstances and also considering the definition of service hired as enumerated in the present C.P. Act we have gathered that complainant did not hire service of SEBI NSE or BSE.  But op only to maintain the details of the transaction in such a trade made by the complainant for such maintaining such account some commission is paid to the agent and there is no relationship between the complainant and op as consumer and service provider.  Moreover in view of the clause of agreement it is specifically mentioned that facility may vary from NSE or BSE where the detailed of trade may be verified by the customer or the client day to day.  Moreover general clause is in the 3.1 that before beginning the client should obtain knowledge of all facts within and other charges for which he shall have to pay those charges even if net profit may increase his loss or decrease.

          Fact remains that as per agreement document segment and ventures and option scheme are also found signed by the complainant.  So, considering all the above fact and circumstances we are convinced to hold that it is not a banking business but it is a business of share trading and complainant knowing fully well about clause agreed that, so he is responsible for such trading for his loss or and agent of NSE or BSE are not responsible.  So, we are confirmed that as per agreement there is no assured authorization for giving proper  result to the complainant.

          Further relying upon the ruling reported in 2010 CTJ 1198 and III 2007 CPJ 316 (NC) we are confirmed that complainant has failed to prove the negligency and deficient maner of the service on the part of the op and fact remains complainant is not a consumer to the op and for which the complaint fails.

          Hence, it is                            

                                                        ORDERED

          That the complaint be and the same is dismissed on contest against ops without any cost.  But SEBI/NSE/BSE are advised to decide the dispute of the complainant at once as per Laws as enumerated in SEBI’s Act and Rules what is the legal duty of SEBI/NSE/BSE.