Haryana

Panchkula

CC/632/2019

SH SURINDER KUMAR BANSAL. - Complainant(s)

Versus

THE BRANCH MANAGER,AXIS BANK. - Opp.Party(s)

Mr.SAURABH SINGLA.

29 Nov 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	632 of 2019
Date of Institution	:	05.12.2019
Date of Decision	:	29.11.2023

 

 

Sh.Surinder Kumar Bansal, aged 67 years, R/o H.No.709, Sector-7, Panchkula.

                                                                         ..….Complainant

Versus                                                                  

1.     The Branch Manager, Axis Bank, Sector-10, Panchkula, Haryana.

2.     Amitabh Chaudhary, Managing Director & CEO, Axis Bank,        Corporate Office, Bombay Dyeing, Mills Compound, Pandurang   Budhkar Marg, Worli, Mumbai-400025.

                                                                      ……Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Sh. Saurabh Singal, Advocate for the complainant.

                        Sh. Manmohan Saroop, Advocate for the OP No.1.  

                        OP No.2 already ex-parte vide order dated                                     17.02.2020.

                       

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint, are that the complainant is an old customer of the OP’s and the complainant along with his wife, Smt.Veena Bansal, are holding one DMAT Account bearing No.DMAT ID 11817719. It is stated that the complainant had invested some amount in certain Shares/Security and the same is lying in the said DMAT Account. The complainant wanted to redeem the shares/security; therefore, for the said purpose, he had to transfer the shares from one DMAT Account to the another DMAT and Trading Account bearing No.1201060003526966 for the purpose of sale and therefore, he(the complainant) had submitted two form no.15 dated 17.07.2019 with the OP’s Bank, after completing all the due formalities and the same were duly accepted and receipt with regard  to the same, was issued under the seal and stamp of the OP’s. It is averred that the Op’s official had failed to act upon the form no.15, which were submitted by the complainant on 17.07.2019, due to their negligence and due to which, he had to resubmit the two forms no.15 on 31.07.2019 again, which were finally given affect  by OP no.1 on 02.08.2019. It is averred that the complainant had to bear the loss due to the delay of 20 days on the part of OP No.1-bank. It is averred that the prices of shares had been fluctuating as the share market was of volatile nature and due to negligence of the staff of the OP-Bank, the complainant had suffered a loss amounting to Rs. 51,183.42 pertaining to which, the details of the calculations have been given in Para No.5 of the complaint. It is stated that the OP No.1 Bank had not transferred the shares as mentioned in the forms no.15 from one DMAT account into other DMAT account despite the fact that all the necessary formalities had been completed. A legal notice was sent to OPs on 17.08.2019 seeking the compensation for the loss. The OP No.1 vide its letter dated 15.10.2019 has refused to accede to the request of the complainant. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notice, the OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; no locus standi to file the present complaint; the complainant has not approached the Commission with clean hands; no cause of action has accrued in favour of the complainant; the Commission has no jurisdiction to entertain and try the present complaint; the complainant is estopped from filing the present complaint by his own act and conduct. It is submitted that the complainant had submitted two forms no.15 on 17.07.2019 and on the same very day, in the evening, the OP’s official, namely, Ms.Anu Mittal called  the complainant  on his mobile number 919814447070 from her  mobile no.917404270795 for 37 seconds at 19:32:10 and it was informed to the complainant that the forms, he has submitted were not filled up correctly as in the particular named as “reason code” nothing was mentioned  and in the next particular named  as “reason/purpose”, “4” was mentioned, which was supposed to be mentioned in reason  code. Then on the very next day, the forms were rejected with remarks, which are reproduced as follow:-

1.     Kindly mention REASON CODE IN PROPER PLACE REQUIRED      CLIENT AUTHENTICATION.

ii.      Kindly note that “DORMANT CLIENT” CONFIRMATION copy is     missing.

iii.     BACKDATED EXECUTION KINDLY RECTIFY UNDER CLIENT         AUTHENTICATION.

                Therefore, the official of the OP No.1-bank named Sachin Pal, who had given the acknowledgment to the complainant, called him on his mobile number 919814447070 from his mobile number 918570003525 at 10:58:16 on 18^th July, 2019 and the conversation lasted for 130 seconds and informed him about his both forms 15 being rejected. Then the complainant came on 31.07.2019 and submitted  two correctly filled forms no.15 and the same were processed  on that very  day and then the shares  were transferred on the very same day  and the demat account was debited and again in this regard, phone call was made by bank official  named Sachin Pal at 14:44:44, which lasted for 245 seconds and it was conveyed that the two forms no.15 had been processed and as per complainant’s instructions, the shares were transferred to his another demat account with another broker. Since there was no negligence and delay on the part of the OP No.1 Bank, the complainant did not bear any loss.  Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint is liable to be dismissed.

3.Notice was issued to the OP No.2 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide its order dated 17.02.2020.

 4.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No.1 has tendered affidavit as Annexure R-A along with documents as Annexure R-1 to R-9 and closed the evidence.

5. We have heard the learned counsels for the complainant and OP No.1 and gone through the entire record available on file including written arguments filed by the complainant as well as OP No.1, minutely and carefully.

6.During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) contended that the two forms no.15, seeking the transfer of certain shares from one Dmat account to another, were submitted by the complainant on 17.07.2017 in OP No.1 Bank-branch, which were accepted by OP no.1 official without any objections. It is contended that the shares were not transferred, as requested vide two forms no.15, by OP No.1 due to the sheer negligence on the part of its official, because of which, the complainant had to submit two forms no.15 again on 31.07.2017. The learned counsel contended that there was delay of 20 days on the part of OP No.1 in transferring the shares, which had caused a loss of Rs.51,183.42 to the complainant  and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

7.On the other hand, the learned counsel on behalf of the OP No.1, during arguments, disputed the maintainability of the complaint on the ground that the complainant is not a consumer as defined under the Consumer Protection Act,1986/2019.

8.On merits, the learned counsel reiterated the averments as made in the written statement as also in the affidavit(Annexure R-A) and contended that the two forms no.15 as submitted by the complainant on 17.07.2019 seeking the transfer of shares were found lacking qua certain necessary particulars. It is contended that the complainant was duly conveyed on his mobile no.919814447070 about the errors/omissions in the forms no.15 by the official of OP No.1, namely, Ms. Anu Mittal from her mobile no.917404270795 at 19:32:10 and she had conversation with him for 37 seconds. The learned counsel further contended that the complainant was again conveyed qua the omission/errors in the form no.1 no.15 on his mobile no.9814447070 by Sh. Sachin Pal, who had given the acknowledgment of the forms to the complainant, from his mobile no.8570003525 at 10:58:16 on 18.07.2016 and he had conversation for 130 seconds with the complainant and that the complainant was again informed by the said Sachin Pal on 31.07.2019, when the correctly filled up forms no.15, submitted by the complainant on 31.07.2019, were processed. The learned counsel argued that there were no lapses and deficiencies or negligence on the part of the OP’s official; thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

9.Before  going into the respective contentions as raised  by the learned counsels for both the parties qua the merits of the case, it is necessary to dispose of the objection as raised by the learned counsel for the OP No.1, whether the complainant falls under the category of the consumer or not.

10.The learned counsel for the complainant has contended that the complainant falls under the category of consumer as defined under Section 2(1)(d) of the Consumer Protection Act,1986/Section 2(7) of the Consumer Protection Act, 2019 and in support of his contention, he has placed reliance upon the case law titled as ICICI Bank Ltd Vs Manjeet Singh  reported in 2016(2) CLT 104 (NCDRC).

11.On the other hand, the learned counsel for the OP no.1 controverting and rebutting the contentions of the learned counsel for the complainant qua the status of the complainant as a consumer contended that the transactions made by the complainant qua sale of shares fall under the category of commercial transactions, which are exempted from the category of consumer as per definition given in Section 2(1)(d) of the Consumer Protection Act,1986/Section 2(7) of the Consumer Protection Act, 2019.The learned counsel argued that the complainant, as per legal notice sent by him dated 17.08.2019 (Annexure C-3) is a businessman, who had invested the amount in shares. It is also contended that the investment in the shares by the complainant, was not made by him exclusively for earning his livelihood by way of self employment and thus, it is argued that the complainant does not fall under the category of consumer as defined under the Consumer Protection Act. Reliance has been placed on the following case laws:-

1. Shrikant G.Mantri Vs. Punjab National Bank reported in 2022(2) R.C.R. (Civil) 403(SC).
2. Sanjay Chandra Agarwal Vs. India Bulla Securities Ltd. reported in 2015(16) R.C.R(Civil) 143(NCDRC).
3. Steel City Securities Ltd. Vs. G.P.Ramesh & Anr. reported in 2014(43) R.C.R.(Civil) 676 (NCDRC)
4. Baidyanath Mondal Vs. Kanahaya Lal Rathi & 2 ors. in Revision Petition no.3286 of 2016 decided on 29.04.2022(NCDRC)

               

12.We have perused the legal notice dated 17.08.2019 (Annexure C-3), wherein the complainant has been described as businessman, who had invested the amount in shares. In the entire complaint, no such averments have been found that the complainant had indulged into the transaction, pertaining to sale of shares, for earning his livelihood, by way of self employment. Even otherwise, it is not the case of the complainant that the investment in the shares was made by him exclusively for earning his livelihood by way of self employment; thus, the complainant, by no stretch of imagination, can be stated to fall under the category of consumer as defined under the Section 2(1)(d) of the Consumer Protection Act, 1986/Section 2(7) of the Consumer Protection Act, 2019. The ration of law laid down by the Hon’ble Apex Court in the case titled as Shrikant G.Mantri vs. Punjab National Bank 2022(2) R.C.R.(Civil) 403(supra) is fully applicable to the facts of the present case. The relevant part of the judgment delivered by the Hon’ble Apex Court, for the sake of clarity and convenience, is reproduced as under:-

1. Consumer Protection Act, 1986, Section 2(1)(d)-Dismissal of complaint on ground of maintainability-Whether consumer complaint filed by appellant seeking direction to Bank to return shares was maintainable-Whether services of the Bank were availed by appellant for a ‘commercial purpose’ and whether such services were exclusively availed for earning livelihood by means of self-employment? –Held, No-Relation between appellant and Bank was purely “business to business” relationship and transactions were for ‘commercial purpose’ thus, cannot be said that services were availed “exclusively for purposes of earning his livelihood”, “by means of self-employment”-Hence, consumer complaint not maintainable as appellant not consumer.

 

13.The law laid down by the Hon’ble NCDRC in the cases (supra), as relied upon by the learned counsel for the OP No.1, is fully applicable to the facts of the present case. In the recent judgment, the Hon’ble NCDRC in the Revision Petition No.3286 of 2016 titled as Baidyanath Mondal Vs. Kanahaya Lal Rathi & 2 ors. in para no.12 has heldas under:-

12.Reading of the above makes it clear that a consumer is a person who buys goods or hires or avails of services for a consideration. The section, however, carves out an exception by providing that the person who purchases goods or hires/avails services for commercial purpose, shall not be included in the definition of Consumer. Explanation to Section 2 (1) (d), however, provides that if such services are availed exclusively for earning livelihood, he will be considered as a "Consumer." It is not the case of the Complainant that he had invested the money in share market exclusively for earning his livelihood. In this regard the State Commission observed as follows: -

"The above facts and circumstances clearly indicate that the transactions involved in the case on hand are commercial activities and such commercial activities are not exclusively for the purpose of self-employment of the Appellant/Complainant and thus the Appellant/Complainant is not covered by inclusive explanation appended to Section 2 (1)(d)of the Consumer Protection Act, 1986 and hence, the Appellant/Complainant does not fall within the definition of "Consumer" as defined u/s 2 (1) (d) of the Consumer Protection Act, 1986." 

14.As per well settled legal position, it is amply clear that the complainant is not covered under the definition of consumer as defined under Section 2(1)(d) of the Consumer Protection Act,1986/Section 2(7) of the Consumer Protection Act, 2019 and thus, the present complaint is not maintainable and accordingly, the same is hereby dismissed with no order as to cost. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 29.11.2023

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                         Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.632 of 2019

Present:             Sh. Saurabh Singal, Advocate for the complainant.

                        Sh. Manmohan Saroop, Advocate for the OP No.1.  

                        OP No.2 already ex-parte vide order dated 17.2.2020.                     

                        Arguments heard. Now, to come upon 29.11.2023 for orders.

Dt.20.11.2023

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Sh. Saurabh Singal, Advocate for the complainant.

                        Sh. Manmohan Saroop, Advocate for the OP No.1.                           OP No.2 already ex-parte vide order dated                                  17.02.2020.

                                                       

                                Vide a separate order of even date, the present complaint is hereby dismissed with no order as to cost.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt. 29.11.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President