No. 3/05.04.2011

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Both the appeal and MA application being No. 321/2010 are taken up for disposal in presence of the Appellant and Respondent No. 2.  Inspite of service of notice none appears on behalf of Respondent Nos. 1 & 3.  The brief fact of the complaint case is that he opened a share trading account with the O.P. No. 1 for trading in shares.  It has been proved in the complaint case that for such purposes a total amount of Rs.1,85,805/- was deposited with the said O.P. No. 1 during the period from 31.01.2004 till 13.04.2005.  It has been alleged in the complaint that the said O.P. No. 1 had traded in shares upon instruction of the Complainant but the profit, if any, earned thereby as well as the amount so deposited by the Complainant had not been returned to him on demand.  The O.P. No. 1 has neither furnished him the statement of account of his money that was deposited with him nor the demat statement of account of the shares traded by him.  Although such allegations have been made by the Complainant but he has miserably failed to prove that any trading of shares were held by the O.P. No. 1 on the instruction of the Complainant.  Since the deposit of the aforesaid amount by the Complainant with the O.P. No. 1 has been proved in the complaint case and further since the O.P. No. 1 has not contested the complaint case upon appearance so the same has been allowed with direction upon the O.P. No. 1 to return back the aforesaid amount of Rs.1,85,805/- with interest @ 8% per annum for the period from 29.08.2008 till realization with further direction to pay a sum of Rs.1,000/- towards litigation cost to the Complainant.. 

At the hearing of this appeal the Appellant has not been able to show that the Forum below in passing the impugned order has acted illegally or with perversity by not taking into account the materials on record.  The Complainant – Appellant has also not been able to prove that there was any trading of shares by the O.P. No. 1 on behalf of the Complainant after the aforesaid amount was deposited with the O.P. No. 1.  In the absence of such evidence it cannot be said that the impugned order has been passed illegally except that the aforesaid amount being in deposit with the O.P. No. 1 during the period from 31.01.2004 till 13.04.2005, the Complainant would be entitled to interest on the aforesaid deposit for the period from 13.04.2005 till realization.  We, therefore, dispose of this appeal by modifying the impugned judgement and order to the extent that the Complainant would be entitled to the aforesaid amount of Rs.1,85,805/- with interest @ 8% per annum for the period from 13.04.2005 till realization.  O.P. No. 1 is further directed to pay a sum of Rs.5,000/- towards litigation cost over and above the aforesaid amount as awarded the O.P. No. 1 will pay both the amounts as above by 30 days from the date of communication of this order.  All other directions made in the impugned order shall remain as it is. 

In view of disposal of the appeal as above and more particularly in view of the fact that the alleged agreement as above for trading of shares so entered into by and between the Complainant and O.P. No. 1 on the principle to principle basis and there being no involvement of O.P. No. 2 in any way in connection with the trading of shares, we hold that the O.P. No. 2 was rightly expunged from the complaint case by the Forum below.  The MA application being No. 321/2010 as filed by the Respondent No. 2 for deletion of his name from the Cause Title of the memo of appeal shall accordingly stand allowed.