In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087.
CDF/Unit-I/Case No. 48 / 2011.
1) Swapan Kumar Mukherjee,
1, Subhas Palli, Kolkata-700092. ---------- Complainant
---Versus---
1) Standard Chartered STCI Capital Markets Limited,
Shree Manjari Building (1st Floor),
8/1, Sir Williams Jones Sarani, Kolkata-700016. ---------- Opposite Party
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member.
Smt. Sharmi Basu, Member
Order No. 14 Dated 05/06/2012.
The petition of complaint has been filed by the complainant Swapan Kumar Mukherjee against the o.p. Standard Chartered STCI Capital Markets Ltd. The case of the complainant in short is that complainant is a small investor carrying investment portfolio in share trading (delivery and intraday) to earn in keeping livelihood for his family.
Further case of the complainant is that he has entered into an agreement with o.p. on 4.10.02 to carry trading of shares (both buying and selling) on his behalf and for the purpose of rendering service an amount is to be deducted from each leg of trading as brokerage apart from Service Tax and other Govt. Taxes as applicable (as mentioned in clause 13 of the agreement). Reviewing the trading ledger with the transactions and contract notes, it is found that o.p. neither arranged pay out with in due time nor they transferred shares to demat account in time.
Further case of the complainant is that o.p. has confirmed that they had stopped trading since 11.3.09 but is found that 800 units of Axis Bank, 700 units of ICICI Bank and 1500 units of Sesa Goa have been sold on 13.3.09 without complainant’s order and consent and accordingly complainant has not issued any delivery instruction in this regard to debit his demat account under clause 12 of the agreement. On 18.2.09 o.p. had received and encashed a cheque of Rs.10,000/- towards non-refundable brokerage by a written assurance of offer that o.p. will provide broking service for next six months w.e.f. 18.2.09 to 17.8.09 but without any notice or intimation the trading account of complainant (Code : 07S068) was stopped by o.p. since 11.3.09 till date. O.p. did not transfer the same within due time and due to non-compliance on the part of o.p. with regards to agreement dt.4.10.02 has resulted in absolute breach of contract which caused damaging age old investment portfolio and financial loss by unauthorized selling of shares as mentioned in the para no.4. Hence the case filed by complainant with the prayer contained in the prayer portion of the petition of complaint.
O.p. had entered its appearance in this case by filing w/v and denied all the material allegations labeled against it and prayed for dismissal of the case. O.p. in its w/v has stated that the complaint is not maintainable on the ground that the complainant is not a consumer within the meaning of Consumer Protection Act. The said act specially states that, person who purchases any goods or hires any service for commercial purpose is not a consumer.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular and we find that complainant is not purchasing any goods or hires any service from o.p. and the transaction being carried by complainant is for commercial purpose and it hardly falls within the definition of ‘consumer’ as defined in the C.P. Act, 1986. It is further observed that complainant holds an offline trading account no.07S068 with o.p. at Camac Street Branch, Kolkata and it is also evident from the record that owing to some other dispute between the parties to this case the matter was referred to Arbitrator of the National Stock Exchange of India (NSE) and it is clearly evident from the record that there is an arbitration provision between the parties and in that event the instant case cannot be entertained in a Forum like Consumer Forum whilst specific relief is there elsewhere in view of the above position particularly whilst the case of complainant is for commercial purpose.
In view of the findings above we are of the strong view that complainant is carrying on business for commercial purpose and the instant case cannot be entertained by this Forum.
Hence, ordered,
That the instant case is not maintainable in this Forum and the same stands dismissed on contest with a liberty to complainant to agitate the issue before appropriate forum on the self same cause of action.
Supply certified copy of this order to the parties.
_____Sd-_____ ______SD-______ ______Sd-______
MEMBER MEMBER PRESIDENT
