PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer complaint is as under –
That the Complainant is an advocate by profession. The Opposite Party is a Stock Broker. The Complainant is regular buyer and seller of the securities on NSE as well as BSE through the Opposite Party.
2) The Complainant bought 100 Shares of Gujarat Ambuja Cement Ltd. on 08/03/06 alongwith other securities of different Companies under Settlement No.N/2006045 for an amount of Rs.42,560.4 and paid the consideration amount by cheque which have been debited from Complainant’s account on 14/03/2006 and credited into the account of Opposite Party. Inspite of the payment, the Opposite Party did not credit the 100 Shares of Gujarat Ambuja Cement Ltd. into the Complainant’s account. This fact was brought to the notice of Mr. Santosh Sharma on 16/03/06 and was requested to credit into the Complainant’s account but he neglected to do so. The Complainant approached him on the next day i.e. 17/03/06. He asked the Complainant for enquiry in the Demat account where the same was not credited. The Complainant regularly approached Mr. Sharma for credit of aforesaid shares into the Complainant’s account but for the reason best known to the Opposite Party Complainants grievance was not redressed. The said shares were not credited in the Complainant’s account till 03/04/06. The Complainant met with officer of the Opposite Party Head Office by named Mr. Vishal but his problem is not solved. So the Complainant lodged his complaint on 17/04/06 in writing to the Opposite Party and asked Opposite Party to pay compensation. Thereafter on 17/04/06 the Opposite Party credited aforesaid shares Gujarat Ambuja Cement Ltd. into the Complainant’s account. According to the Complainant, due to the negligence on the Opposite Party Complainant has suffered financial loss and mental agony. The Opposite Party refused to pay compensation to the Complainant so Complainant lodged complaint to SEBI on 03/07/2006/-. SEBI referred the Complainant to NSE. NSE showed its helplessness in taking action against Opposite Party. Therefore, the Complainant has filed this complaint. The Complainant has requested to direct the Opposite Party to pay to the Complainant an amount of Rs.20,000/- for the loss due to non credit of 100 shares of Gujarat Ambuja Cement Ltd. He has further requested to direct Opposite Party to pay him Rs.43,300/- for professional loss and mental agony and cost of this proceedings. Alongwith complaint, the Complainant has produced xerox copies of documents.
3) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending that there is no deficiency in service on the part of Opposite Party and therefore, complaint deserves to be dismissed with cost.
4) It is admitted by the Opposite Party that Opposite Party is a Stock Broker and act in Security Transactions on behalf of its client on NSE as well as BSE and bearing SEBI Registration. It is admitted that the Complainant is a client of Opposite Party having the Client Code No.PBBB007. The Complainant opened his account with Opposite Party on 12/01/06. The Opposite Party used to purchase and sell the shares as per order placed by the Complainant. It is submitted by the Opposite Party that during the month of March, 06 i.e. on 08/03/06, the Complainant’s account was running into debit for an amount of Rs.1,18,367.88 paise. The Complainant was informed about the same. Then on or about 08/03/06 the Complainant asked the Opposite Party to purchase 100 Shares of Gujarat Ambuja Cement Ltd. alongwith other Security of different Companies for total amount of Rs.42,960.4. The Complainant deposited cheque for the said amount and the amount of said cheque was credited into the Complainants account on 11/03/06. Even after giving credit to the said cheques, Complainants account was still running into debit i.e. Rs.75,407.40 paise. The Opposite Party in good faith purchased 150 shares of Gujarat Ambuja Cement Ltd. and 200 shares of Reliance Natural on 17/03/06. After purchase of shares, Complainant account was running into debit of Rs.99,832.50 paise. The Complainant was asked to clear the outstanding debit and was further informed that shares will not be transferred to his Demat Account till clearing of his bills.
5) At the request of the Complainant Opposite Party sold some shares and credited the sale price of Rs.24,312/- in Complainant’s account. Cheque for the said amount was issued to the Complainant. As per the provision of SEBI Act, it was not mandatory on Opposite Party to transfer shares in the Complainant’s Demat Account and the Opposite Party can retain the shares till the client clear the amount. As per the provision of Sec.171 of the Contract Act, Opposite Party has General lien over all forms and securities and negotiable instruments deposited by or on behalf of Customer in the ordinary course of banking business.
6) The Opposite Party has denied allegations made in the complaint and submitted that the Opposite Party is entitled to withhold the amount in order to settle the account which was running into debit. Inspite of assurance the Complainant has not cleared his account within considerable period. As per Opposite Party there is no deficiency of service on the part of Opposite Party and therefore, complaint shall be dismissed with cost.
7) The Complainant has filed rejoinder and thereby denied allegations made in the written statement. Opposite Party has filed affidavit of evidence. The Complainant has filed written argument. The Opposite Party has also filed written argument.
8) Heard oral submissions of Complainant and perused document produced on record. Ld.Advocate for the Opposite Party was absent on 19/07/2011. The Opposite Party has filed written argument, so complaint was closed for order.
9) Following points arises of our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a ‘consumer’ as defined under 2(1)(d)(ii) of the Consumer Protection Act, 1986 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for compensation and cost of this proceedings ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted fact that Opposite Party is a Stock Broker and acts in Securities Transactions on behalf of its client on NSE as well as BSE. The Complainant is a client of Opposite Party. It appears that the Complainant had opened his account on 12/01/06. It is averred in the complaint that Complainant is an advocate by profession and he is regular buyer and seller of security on NSE as well as BSE to Opposite Party. According to the Complainant on 08/03/06 the purchased 100 Shares of Gujarat Ambuja Cement Ltd. alongwith other securities for total amount of Rs.42,560.4 paise and paid the aforesaid consideration by different cheques. The amount of said cheque was debited into the Complainant’s account on 14/03/06. According to the Complainant, it was mandatory on the part of Opposite Party’s to credit 100 Shares of Gujarat Ambuja Cement Ltd. in his Demat Account immediately after receipt of payment by the Opposite Party but inspite of his repeated requests Opposite Party filed and neglected to credit the said shares in his account. He made complaint to BSE and NSE but there was no response. Lastly on 17/04/2006, Opposite Party credited the said shares in the account of the Complainant but neglected to compensate the Complainant. It is alleged that due to the deficiency in service of Opposite Party, the Complainant has suffered financial loss and mental agony.
In the complaint itself it is specifically stated that the Complainant is a regular buyer and seller of securities on NSE as well as BSE and for the said purpose the Complainant has opened an account with the Opposite Party who is Stock Broker. The Complainant has availed services of Opposite Party for sale and purchase of securities of various Companies. Regular purchase and sales of shares and securities is a commercial transaction. The Complainant has availed services of Opposite Party for commercial transaction. By the Amendment Act of 62/2002 Sec.2 of the Consumer Protection Act, 1986 is amended w.e.f.15/03/2003. By the aforesaid amendment a person who avails services for any commercial purpose is excluded from the definition of consumer given in Sec. 2(1)(d)(ii). In the instance case, the Complainant has availed services of Opposite Party on 08/03/06 for the purchase of securities including 100 shares of Gujarat Ambuja Cement Ltd. The Complainant has availed services of Opposite Party for commercial purpose and therefore, in view of amended provision of Sec.2(1)(d)(ii), the Complainant is not a ‘consumer’, therefore, we answer point no.1 in the negative.
Point No.2 :- As discussed above, the Complainant is not a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 and therefore, present complaint is not maintainable before this Forum. As such, Complainant is not entitled to recover any compensation, cost or any other relief. Hence, we answer point no.2 in the negative.
For the reasons discussed above, we pass the following order –
O R D E R
i.Complaint No.77/2007 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
