Hon’ble Mr. Subhas Ch. Guin, Member.
The complaint petition in a nutshell is that Mrs. Mousumi Dutta who is a resident of village Mahisbathan, P.O. Mahisbathan under the district of Cooch Behar purchased one certificate from Sushil Financial Services Pvt. Ltd., 12 Hoonji Street Fort, Mumbai-400001(O.P. No.1) through one Mr. Debasish Chakraborty (O.P. No.2) agent of O.P. No.1 amounting to Rs.5,00,000/- having client code No.DA01230 and Reference No.11BR41 for maturity period of five years. On purchasing the said certificate O.Ps assured the Complainant of premature withdrawal of the investment amount if required. On need being arisen the Complainant went to the Office of the O.P. No.2 for premature withdrawal of the investment amount in the month of January, 2019. But despite repeated request the O.P. No.2 did not provide the Complainant with the premature amount of his investment. The O.P. No.2 was dilly-dallying with the Complainant for which the Complainant was facing hardship and an irreparable loss although the Complainant was entitled to get the premature amount as assured by the O.P. No.2. This act of the O.Ps tantamounts to deficiency in service which causes mental pain and agony to the Complainant. Being compelled, the Complainant filed this instant case before this Commission for redressal of her grievances. The cause of action arose when the Complainant submitted a prayer before the O.P. No.2 in the month of January, 2019 with all relevant documents for withdrawal of premature amount out of her investment. The Complainant prayed to the Commission for a direction to the O.Ps to return the surrendered amount of the said policy with interest a sum of Rs.2,50,000/- for mental pain, agony and unnecessary harassment, Rs.2,00,000/- for deficiency in service and Rs.15,000/- for litigation cost.
On receipt of summons for the Commission O.P. No.2 did not turn up at the Commission to contest the case. So the case was decided to be heard ex-parte against him. But the O.P. No.1 contested the case by filing written statement, evidence on affidavit and written argument. The O.P. No.1 in his all statements and documents denied each and every allegation labelled against them by the Complainant. He stated that they were share and Stock Broker having SEBI Registration No.INZ000165135 and also a trading member of Bombay Stock Exchange Limited and National Stock Exchange of India Limited and also a Depository Participant duly registered with Central Depository Services(India) Limited(In short CDSL). During course of business of the O.P. No.1, the O.P. No.2 was registered as authorised person of the O.P. No.1 and as such the role of the O.P. No.2 was only to provide services to the clients of the O.P. No.1 only in respect of the business activities carried out by the O.P. No.1. Therefore it is the condition that ha the O.P. No.1 cannot beyond the broker authorised person relation as laid down in the broker authorised regulations. If the O.P. No.2 acted beyond the broker authorised relation or carried out any business activity which was not at a business of this O.P. No.1, then the O.P. No.1 is not at all responsible for any such act of the O.P. No.2. Moreover, the O.P. No.1 has terminated the registration of the O.P. No.2 as an Authorised person vide its letter dated 13.12.18. In addition to that the O.P. No.1 stated that the Complainant opened a Trading and Demat account with this O.P. No.1 in the month of January, 2011 and he was allotted a client code having No.DA01230 by the O.P. No.1. The O.P. No.1 never received such amount of money from the Complainant as claimed by the her in her complaint petition. In fact the Complainant’s trading account with the O.P. No.1 was dormant since February, 2017 and no transaction of any sort was taken place in her trading account with the O.P. No.1 since then. The copies of Complainant’s financial statements reflecting all the transactions done in her trading account from 01.04.11 to 31.03.18 was annexed by the O.P. No.1 and it is evident from such financial statement that the O.P. N.1 had not received such alleged payment from the Complainant. It was apparently a case of private dealing / independent transaction between Complainant and the O.P. No.2 with their mutual understanding. So the O.P. No.1 cannot be held responsible for such private dealing between Complainant and the O.P. No.2. The O.P. No.1 also stated that the whole complaint of the Complainant was against the O.P. No.2 and was related to some certificate/ policy issued by the O.P. No.2 to the Complainant. On receipt of Xerox copy of Annexure mentioned in the complaint(Annexure-A) from the Complainant the O.P. No.1 verified it and declared it forged, fabricated and not issued by them at all. The O.P. No.1 was not aware of such certificate/policy till the time they received the document from the Complainant. The O.P. No.1 was not authorised by SEBI to offer and provide such services and as such denied the receipt of such payment from the Complainant though the O.P. No.2. The O.P. No.1 also argued that the Complainant alongwith the O.P. No.2 hatched a conspiracy against the O.P. No.1 to extract huge money by filing the present complaint before the Commission. The O.P. No.1 stated that the present complaint was filed by the Complainant who had allegedly invested in some policy/certificate issued by the O.P. No.2 to make profits and hence the same was for commercial purpose and as such outside the ambit of the term “consumer” in the CP Act. Thereafter, this O.P. No.1 cannot be held liable for any transaction if dome by the Complainant directly and in its individual capacity with the O.P. No.2. So, the O.P. No.1 submitted that there was no merit in the complaint and the complaint is liable to be dismissed and the Complainant is not entitled to any claim as prayed in the petition.
Perused the pleadings of the Complainant and the documents in the case record. Heard the argument advanced by the Ld. Advocates for the Complainant and the O.P. No.1. The statements made in the evidence on affidavit are absolutely in consonance with the averments made in the complaint petition. Hence in order to proper adjudicate the case, the following points are required to be determined.
Points for determination
- Is the case maintainable under the CP Act, 2019?
- Is the Complainant entitled to get relief?
Both points are taken up together for discussion as they are interlinked with each other and for brevity. The Complainant Mrs. Mousumi Dutta deposited a sum of Rs.5 Lakhs (Annexure-A) to the Sushil Financial Services Private Limited(O.P. No.1) through her agent of O.P. No.1, Mr. Debashis Chakraborty (O.P. No.2) for which the O.P. No.1 issued a “Receipt Advice” with seal and signature of authority of the O.P. No.1. The said receipt reveals that a sum of Rs. 5 Lakhs was invested in capital market of Bombay Stock Exchange in favour of the Complainant with the name of Mr. Debashis Chakraborty as Franchisee.
The O.P. No.1 filed a financial statement reflecting all transactions done in Complainant’s trading account from 01.04.11 to 31.03.18 which she opened with the O.P. No.1 company in the month of Jan, 2011. It is evident from said statement that the O.P. No.1 had not invested the sum in share market after receiving the payment from the Complainant on the other hand it is an admitted fact by the O.P. No.1 that the O.P. No.2 is the authorised person of the O.P. No.1 whose role is to provide services to the clients of the O.P. No.1. But the O.P. No.1 categorically stated that they have terminated the registration of the O.P. No.1 as an authorised person vide its letter dated 13.12.18. But no such letter is annexed with documents filed by the O.P. No.1. Moreover, the O.P. No.1 clearly denied the allegation brought against him stating the said transaction as a private dealing between Complainant and the O.P. No.2 which is related to issuance of a receipt certificate by the O.P. No.2 to the Complainant. The O.P. No.1 claimed the said receipt as fake, fabricated and not issued by them about which they came to know from the Complainant. So this is an act of conspiracy between the Complainant and the O.P. No.2 to extract huge money from the O.P. No.1. On the contrary, the said receipt advice bears signature of authorised signatory with seal of the O.P. No.1 company on a revenue stamp of Re-1 and logo of Sushil Finance Services Pvt. Ltd. Hence it is crystal clear that the O.P. No.1 has received the said amount from the Complainant through the O.P. No.1 but not allotted shares after taking consent from the Complainant. At the same time the O.P. No.1 has not refunded the said amount on demand by the Complainant in her urgent need of money. Thus there is gross deficiency in service on the part of both O.Ps. The Ld. Advocate for the O.P. No.1 argued that investing money in stock market does not come under the purview of C.P. Act as this is a commercial transaction for which the instant case is liable to be dismissed for which he cited two case law of Hon’ble State Commission wherein cases of investing money in share market have been dismissed by the Commission on ground of non-maintainability under the C.P. Act. But Hon’ble National Commission, New Delhi is of opposite view wherein it clearly states that investing money in share market by an investor is a maintainable case under C.P. Act which is reflected in its order in a case of Revision petition No.1692 of 2001 of M/S Kirti Consultant Vs Sukhadev Savitra Salve wherein money paid by the Complainant but shares were not allotted by the OP. The District Commission directed the OP to refund the amount to the Complainant with interest. The State Commission upheld the order of the District Commission but it modified the award of rate of interest from 24% to 15 % per annum. Hence Revision petition- wherein the same was dismissed by the Hon’ble National Commission under jurisdiction clause.
By placing reliance on the case law of Hon’ble National Commission cited above the Commission is of the view that there is gross deficiency in service on the parts of both O.Ps which in turn cause mental pain and agony to the Complainant. So the Complainant is entitled to get relief as prayed for in the complaint petition.
Hence, it is
Ordered
That the instant case be and the same is allowed on contest against O.P. No.1 and ex-parte against O.P. No.2. So the O.Ps are directed to refund Rs. 5 Lakhs to the Complainant jointly and /or severally with interest @ 6% per annum from the date of receipt till its realisation. They are also directed to pay Rs.50,000/- for mental pain, agony and harassment, Rs.50,000/- for deficiency in service and Rs.15,000/- for litigation cost to the Complainant jointly and / or severally. The awarded sum of money is payable within 45 days from the date of passing this order failing which the same amount shall carry an interest @ 6% per annum till its realisation.
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.
Note the trial Register.
Dictated and corrected by me.
