Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant Sakuntala Basu w/o Kamalesh Basu opened a joint account No.11203718 on 23-09-2011 at the Branch Office at BMA Wealth Creators Ltd., but no trading was initiated because of lack of transparency/irregularities of the Account No.31230010 belonging to Kamalesh Basu for which compliant had already been made but later on they came to know about unauthorized and without consent trade, through a communication dated 28-12-2011 which was received on 1^st week of January, 2012 from National Stock Exchange as at Annexure – A.

          On finding a huge loss of Rs.3 lakhs they immediately took the help of Shri Soumen Datta to do the trading w.e.f. 09-01-2012 by telephonic instruction following the same way she used to do trades in her Account 31230010 as she is a senior citizen could not so far master the techniques of the online trades and also M/s. BMA knew very well that this joint A/c. had been operated by him on behalf of his wife Smt. Sakuntala Basu.  It is further alleged that the matter was brought to the knowledge of Branch Manager, Mr. John by Shri Soumen Datta followed by the letter dated 01-02-2012  and as their letter was not being received then complainant sent letter on 23-02-2012 by speed post to Branch Manager, to look into the matter of unauthorized trades.  But the Branch Manager did not care to look into the matter even after being aware that the matter has been brought to their notice by NSE.  On the contrary, the matter was suppressed while trying to mislead the complainant through his assistant Soumen Datta that the losses would be made good shortly to them.

          On being convinced about the false promises of Branch Manager and after knowing fully about the evil intentions of suppressing the facts, they intimated the entire case to the Director, M/s. BMA Wealth Creators, by a letter dated 02-06-2012 by Speed Post.  Immediately after that they registered their claim to National Stock Exchange on 08-06-2012.

          The trading member in spite of repeated letters from them did not care to reply and look into the matter for last 6 months and only submitted some seemingly fabricated documents at the IGRP meeting and after the trading member did not care to reconcile to the disputes, the matter was taken up for Arbitration vide application dated 11-12-1012 and revised one dated 30-01-2013 but after waiting for more than 6 months without any response and to expedite the matter the case is filed before District Redressal Forum for settlement of the claim and in the circumstances, complainant has prayed for redressal and for refund of the entire investment amount under law i.e. Rs.2,93,781-00 and also other relief.

          Fact remains notices of this complaint were sent to the OPs by registered post with A/D by Speed Post which was received by the OP on 22-11-2013 which is evident from the internet postal result in respect of the postal item no.CW338040719IN and that was received by the Branch Manager OP but they did not appear so, ultimately the case is heard ex parte.

Decision with Reasons

          After careful consideration of the entire complaint including the arguments as advanced by the complainant and also considering the documents it is found that complainants are involved in share trading(selling and purchasing of shares) and no doubt they are member of such trading and at the same time they are guided by Rules and Regulations of National Stock Exchange of India Ltd. and in all respect complainant got direct trade information on random basis from National Stock Exchange of India Ltd. and fact remains complainant used to involve in trade through BMA Wealth Creators Ltd. but anyhow complainants found that some unauthorized trade have been done from the account of Smt. Sakuntala Basu and that account was opened on 213-09-2011 but it is the case of the complainants that through that account the trade was made but when they got received information of settlement from investors sale of NSE about sale being done in respect of the above account they were astonished and thereafter, they enquired from Soumen Datta who opened the account and found there is substantial loss of capital since their transactions are absolutely unauthorized and there was no instruction on behalf of the complainants for trading and that matter was reported to Director, BMA Wealth Creators Ltd. through Branch Manager of the OP but they did not respond when complainant reported the matter to compulsory in charge National, Stock Exchange of India Ltd. at Kolkata and a complaint was also lodged against unauthorized trading in Account No.11203718 by trading members BMA Wealth Creators Ltd. on the basis of that the complaint was registered and, thereafter, arbitration proceeding was started and that is admitted by the complainant in their complaint at para 11 of the complaint.

          It is also evident from the complaint that complainants have filed this complaint on the ground that though the matter was taken up by the arbitrator in Arbitration Proceedings but arbitrator has not decided the matter as yet for which complainant has appeared before this Forum for relief.

          Considering the complaint it is found that share trading is one kind of money laundering and share trading means selling and purchasing of shares through certain market agents but as per agreement clause of NSE the persons who wants to invest money for share trading he or she must have to file an application initially where several conditions are given to the intended persons who are willing to invest money in share trading and that is mandatory and as per that first page of the agreement in NSE it is found that any loss is faced by any investors in share trading (selling and purchasing) it shall be responsibility of the investors because volatility of the market depends upon market fiscal policy of a country and financial loss to such investors is common and for which any agent of NSE or BSE are not responsible.  Further fact is that there is some other regulations and that is called Client Agreement NSE what complainant has not produced i.e. the copy of Client Agreement NSE but we have already handled so many cases where from we have gathered that share trading business run by any person cannot be a consumer under any circumstances and NSE is the authority to whom the complaint must be filed and NSE as its authority as per act to decide all disputes and for referring the matter for arbitration and particularly in this case complainant made complaint against the OP before NSE and NSE took up the matter and for dissolving the entire complaint of the complainants referred the matter to arbitrator and it is pending before arbitrator but fact remains complainant has not yet get result from that arbitration proceeding for which complainant has appeared.

          But in this regard it is to be mentioned very specifically that if in respect of any dispute any arbitration proceeding is started in that case when the arbitrator is in sesin other Forum or Civil Court cannot entertain similar complaint for disposal and when arbitration proceeding is pending in respect of the present dispute as Arbitrator is appointed by the NSE then complainant has no other alternative but to wait for the result of arbitration proceeding and if complainant is dissatisfied with the manner of work of arbitrator in that case complainant may move before the Hon’ble High Court who has authority to give further direction and in view of the provision of Section 8 of the Arbitration Act and also for continuation of arbitration proceeding in respect of the present dispute the present Forum has no jurisdiction to entertain such a dispute and it is completely barred under provision of Arbitration and Conciliation Act as per provision of Section 8.

          In the light of the above observation we are convinced to hold that the present complaint is not maintainable and this Forum has no jurisdiction to decide such dispute when the present dispute is already taken up by NSE by appointing arbitrator and arbitration proceeding is in progress. 

Thus this complaint fails.

Hence,

Ordered

That the case be and the same is dismissed ex parte as same is not maintainable in view of the fact the arbitration proceeding is pending regarding this dispute.

Dictated & Corrected

by me