Hon’ble Mrs. Rumpa Mandal, Member.

The fact of the complaint of the instance case in brief is that O.P. No.1 projecting himself to be a Business associate of O.P. No.2 allured the Complainant to invest  money with O.P. No.2 with the assurance that he would take entire responsibility for secured payment on such investment i.e. “Port Folio Management”. Complainant had invested Rs. 2 Lakh on 01.01.16 with the assurance of repayment of Rs. 4,000/- per month to be paid on yearly basis and the receipt was given to the Complainant by O.P. No.1 in his personal letter head which was signed and sealed by him. He was also assured by O.P. No.1 about supply of other documents of his investment later on receipt of such documents from O.P. No.2. It was told that the said investment would be for a period of 18 months. But subsequently it was found that O.P. No.1 avoided payment assured to him despite visiting the Office of O.Ps several times. O.Ps failed to repay the entire investment of the Complainant with statutory interest. Thereafter, a demand notice was issued through the Advocate of the Complainant which was duly served upon O.P. No.1 but despite receipt of the notice no reply nor any initiative was taken by O.P. No.1 for repayment of the money. Thus, the Complainant alleged unfair trade practice upon the Complainant causing mental pain and agony and pecuniary loss. So, Complainant filed this case praying for several relief as made in the petition of complaint.

O.P. No.1 did not appear to contest the case and the case was heard ex parte against them whereas O.P. No.2 entered appearance, filed written version and also evidence in chief.

O.P. No.2 contested the case by filing a written statement and evidence denying the material contentions and allegations of the Complainant. It is admitted that O.P. No.2 is share and Stock Broker and Trading member of Bombay Stock Exchange and National Stock Exchange of India limited and also a Depository participant duly registered with CDSL. O.P. No. 1 was registered as Authorised person of O.P. No.2 and his role was only to provide services to the clients of O.P. No.2 only in respect of business of activities carried out by O.P. No.2. However, the O.P. No.2 terminated the registration of O.P. No.1 as an Authorised person by a letter dated 13.12.18. It is stated that O.P. No.2 had never any license to carry out or provide any Portfolio Management Services and O.P. No.1 being the Authorised person could not provide any such Services to any clients including the Complainant also was not registered with O.P. No.2 as its client. No money was received by O.P. No. 2. Further, O.P. No.2 raised a dispute that the Complainant is not a Consumer within the meaning of the term under the Consumer Protection Act as the alleged transaction between the Complainant and O.P. No.1 does not come under the preview of the Consumer Protection Act. So, O.P. No.2 prays for dismissal of the instance case as there is no merit in the complaint.

POINT FOR CONSIDERATION

1. Is this case maintainable under the C.P. Act 1986?

2. Is the Complainant is entitled to get any relief?

DECISION WITH REASONS

On going through the materials on record and contentions of the parties, it is found that the O.P. No.2 raised dispute regarding the invested amount of Rs. 2 Lakh on 01.01.16 with the assurance of repayment of Rs.4,000/- per month to be paid on yearly basis.

In support of the said contention on behalf of the O.P., one decision of Haryana State Commission Anup Saini vs Indus Portiolio Pvt. Ltd., has been cited. In the said decision Hon’ble Appellate Court observed that the share trading is a Commercial activity and the services availed for that purpose are obviously to be considered for Commercial purpose and as such the Complainant cannot invoke the jurisdiction of the Consumer Protection Act. Reference in this regard is made to case law cited as Anand Rathi securities Ltd. And others Vs Smt. Rayshri Verma and another, 2010 CTJ 1194( Chhattisgarh SCDRC). In that case, the aggrieved Complainant pending disposal of the dispute may under protest, invest the amount of Rs.2 Lakh with the assurance of repayment of Rs.4,000/- per month to be paid on yearly basis. But the Complainant had invested the money for Commercial purpose. Transaction between the parties do not come under the purview of Consumer protection Act, 1986. He is not a Complainant under the provision of section 2 (1)(d)(ii) of C.P. Act. Investor investing money is share trading with expectancy of earning profits, also undertakes huge risk of loss for which no one could be held responsible.

As against this complaint, O.P. No.2 filed his written version & filing written argument and he vehemently objected that the Complainant is not consumer under the Consumer Protection Act, 1986. But the Complainant did not submit any reply against this. The dealings between the parties as revealed in this case amount to Commercial transaction and not for earning his livelihood. As such he would not be a consumer as per section 2(1)(d)(ii) of the Consumer Protection Act, 1986. That being so, we hold that the instant complaint is liable to be dismissed and the case is not maintainable under the C.P. Act.

Hence for ends of justice, it is

                                                            Ordered

That the instant Case No. CC/31/2019 be and the same is dismissed on contest against O.P. No.2 & ex parte against O.P. No.1. No order as to cost.

Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.

The copy of the Final Order is also available in the official website: www.confonet.nic.in.

Dictated and corrected by me.