Complainant by filing this complaint has submitted that complainant was approached by the ops and was requested to open a commodity and foreign exchange trading account with the op as it was giving an opportunity to trade in commodities like Oil, Gold, Silver, Zinc, Copper, etc. as well as all tradable foreign exchange.  The complainant being lured with the new opportunity agreed to open a trading account with the op no.1 and as such a trading account with the op no.1 having client Id. No.NMV0422 was opened.

          It is further alleged by the complainant that complainant was actually approached by one Mr. SubrataTrafdarwho persuaded the complainant to open a forex and commodity trading account with the op and it was represented by the said S. Tarafdar that there are existence of a huge opportunity in commodity and foreign exchange trading and accordingly the account will augment his income and being persuaded by the sweet talks and the rosy picture depicted by S. Tarafdar and his associates the complainant had principally agreed to start trading in commodity market through op.

          Practically as senior citizen the complainant was misled and misrepresented at all material times since opening and subsequently during the operation of the account.  On receipt of the account statement by the complainant it was noticed that numerous tradings were done on the very first day of opening of the account and even before that complainant received no information about opening of the account that numerous trades were done by the ops without any instruction and or authorization and these trades were done only by the sub brokers who were working for the op to earn commissions and office bearer of the op trading company namely Mr. S. Tarafdar and Mr. Upadhyay and a few others.  The complainant had thereafter vehemently protested to such trades and the op admitted their responsibility and as such a refund was made with regard to the loss made on the opening day.

          Complainant had thereafter made a payment of Rs.1,50,000/- by several installments by cheques what the op had acknowledged in the statement of accounts provided by it and complainant instructed ops several times that only trades authorized by him in writing would be done by the ops and the complainant had thereafter went to Canada to spend a few months and the complainant again instructed the ops not to carry on any trades without his written instructions.  It is stated that on returning to Kolkata from Canada the complainant noted that there were several trades which was executed at the sweet will of the opposite parties and as such the deposit of Rs.1,50,000/- which was made by the complainant had been exhausted by losses and service charge and there was a balance of only Rs.3,172.66/- which was remaining with the account.

          The complainant had instructed for very few trades when he was in Kolkata and was ready to accept the loss or profit arising due to such trade and had offered for an actual settlement based on true order which the ops fail to do and the complainant had written several emails to the op complaining about the unauthorized trades but the same was never replied properly and so subsequently by a legal notice dated 04.05.2012 complainant asked the op for refund of his amount which has been used by the op illegally for trade.  But op had failed to provide the refund amount and as they have given no answer against his such payment and in fact by executing the trades without any instruction of the complainant and raising bill for the same is a deficiency in service on the part of the op and in the above circumstances complainant has prayed for relief as a consumer.

          On the other hand op nos. 1 & 2 by filing their written statement submitted and rather admitted that complainant opened his trading account with answering op after completion of all the formalities and he signed the Client Registration Form (CRF), and “Know Your Client” Form (KYC) and Member-Client Agreement (MCA) and has provided all the relevant documents as required to be a registered as client for dealing in commodities market.  Accordingly Unique Client Code (UCC) NMV0422 was allotted to him and the same was uploaded with the exchange too.  It is not out of place to mention here that all the trades have been executed in his account only based on the instructions delivered by him either telephonically or personally.  He also used to visit the answering ops office to execute the trades from time to time as and when he desired.

          Further it is submitted that the complainant was associated with the answering op nos. 1 & 2 with intention to deal in commodities to earn profit, but this is also a truth that profit and loss is not in the hands of Trading Member/Stock Broker rather it depends on the volatility of the market.  He was buying and selling commodities from time to time in his account and also against the same issued various cheques, and entries of such cheques duly reflect in his account statement which is already supplied to the complainant from time to time.

          The complainant also issued cheques against the margin call and transactions with full knowledge and conscience and it is only possible when he is aware of the exact status of his ledger which is reflecting the position of his credit and debit balances and as per the normal practice of the answering ops, all relevant documents – like contract notes and account statements etc. are being forwarded to the complainant on regular basis from time to time and besides this, the digitally signed contract notes are also being sent on the E-mail ID i.e. strehan@bell.net as given by the complainant himself at the time of signing the agreements and it is also fact that he executed most of the trades either personally or telephonically and further in addition to that electronic contract the answering ops have also sent the contract summary on the mobile number of the complainant and the relevant SMS log is also sent and complainant was doing the intra day trading with an intention to earn profits on daily basis and these transactions were of commercial in nature and do not fall under purview of the C.P. Act, 1986 and it was not for domestic purpose and so the present case does not fall under the purview of C.P. Act and complainant has filed frivolous complaint against the answering ops and complainant was doing transactions which was commercial in nature and the present complaint obviously is filed with an intention to grab undue benefits and in the above circumstances the complaint should be dismissed.

          Decision with reasons

          After hearing the Ld. Lawyer for the complainant including the complaint and also the argument of the Ld. Lawyer for the ops we have gathered that it is admitted by the complainant in the complaint that he opened a trading account with the op and it was given an opportunity to the complainant to trade in commodities like Gold, Silver, Zinc, Copper as well as delivery foreign exchange and no doubt complainant opened it and continued.

          So, it is clear that the complainant did not open that account as consumer but for the purpose of trading he opened that account and fact remains he did not deposit Rs.1,50,000/- at a time but first on 19.05.2011 he deposited Rs.11,000/-.  Thereafter he day to day used that account for trading for profit.  After that again he deposited Rs.10,000/- on 20.06.2011 when the first deposited amount of Rs.11,000/- was exhausted after trading.  Thereafter on 21.06.2011 he deposited Rs.20,000/- and thereafter trading was continued.  Subsequently, on 23.06.2011 he deposited Rs.30,000/- and thereafter trading was continued. 

          After that he deposited Rs.25,000/- on 02.07.2011 thereafter the trading was continued and ultimately after considering the statement of account from 01.04.2011 to 08.06.2012 it is found that complainant continued the said trading for profit from 19.05.2011 to 09.07.2011 and from the said statement of account it is also found that time to time complainant got profit by investing money in the trade.  So, it is clear that complainant invested money for the period from 19.05.2011 to 09.07.2011 only for trade and for profit and that amount was not deposited for any interest and the present op is not an investor, not even banking authority or non-banking authority, not even any financial institution.  But completely op is a trading concerned and complainant deposited it for the purpose of trading that has been admitted by the complainant.  So, question of loss of money at the time of trading depends upon the market volatility.

          So, considering that fact it is found that it was completely a commercial trade for profit and in trade if any person invests any money there is no certainty of profit always but loss and profit is subject matter of any trade and practically the complainant is a very renowned person having his different types of knowledge about trade in the market and he opened trade account only for the purpose of trading and during trade he failed to earn desired profit.  But somehow he faced loss and filed this case.  But in view of the fact and circumstances it is found that complainant is not a consumer to the op.  but complainant is bona fide investor of the said foreign exchange trade and that is admitted by the complainant and for which we are convinced to hold that present complaint is not maintainable in the eye of law in view of the fact that complainant is not a consumer and in fact complainant’s entire business was completely for the purpose of foreign exchange trade and for the above reasons we are convinced to hold that complainant is not a consumer and as his trade is for commercial purpose for his daily profit and any where in the complaint it is not submitted that the op is service provider.  But on the contrary it is proved that complainant is one of the member of the op in respect of trading and it is no doubt a commercial trading and for which the complainant is not entitled to get any benefit from this Forum because his entire complaint does not attract the status of the complainant as a consumer as per provision of C.P. Act 1986 under the op.

          In the result, the complaint fails.

          Hence, it is

ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the ops.