DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C.CASE NO. 557/2014
Date of Filing: Date of Admission Date of Disposal:
26.9.2014 18.12.2014 22.6.2015
COMPLAINANT = Vs. = O.Ps.
Sri Subrata Ghosh, s/o, Bijoy 1.The Compliance Officer,
Krishna Ghosh, 528/5, (PL) Peerless Securities Ltd. 1 No.
Ashokenagar, P.O. and P.S.Ashokenagar,.Chowringhee Square, 2nd Floor
Dist North 24 Pgs, Kolkata- 743222 Kolkata - 700069
Client Id. No. 10178191. 2. The Branch Manager,
Peerless Securities Ltd., Barasat Branch, Colony More,
Krishnanagar Road, P.O.
Nabapally, P.S. Barasat
Dist North 24 Pgs.
3.Ranjan Rajbansi, One of the
Official Staff of Peerless Securities Ltd. Barasat Branch
ColonyMore,Krishnanagar Road P.O. Nabapally, P.S. Barasat Dist North 24 Pgs.
J U D G E M E N T
The complainant stated that he had purchased 100 units of IDFC shares @ Rs 167/-, 100 units of UCO Bank shares @ Rs 65/-, 250 units of J.P.Associates’ shares @ Rs 94/-, 50 units of Tata Motors’ shares @Rs 310/- and 200 units of Star Lite’s shares, totaling at the cost of Rs 85000/-, throughDemat Account No.S-2039 of OP No. 2.
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It was stated that OP No. 2 purchased or sold the stated shares after getting written authorization from the complainant. But one Ranjan Rajbanshi, OP No. 3 sold said shares in the name of the complainant which were purchased using the Demat a/c and made loss to the complainant keeping him in dark. The complainant came to know of this fact on inspection of OP 2’s office and he verbally intimated the Branch Manager who assured him of searching the matter from OP 3. Despite several enquries from the OP 2, no result came out, the complainant alleged. Then he sent a letter on 30.4.2013 to OP 2 on the matter.
The complainant stated that on 27.5.2013 he lodged a complainant to OP 1 through OP 2 regarding OP 3’s selling of shares from the Demat a/c without any authorization from him. But the concerned authority evaded the said matter on the plea on non-match of complainant’s signature. Then the complainant sent legal notice on 04.6.2014 through his lawyer to OP 1 seeking compensation from the authority for illegal, unethical and malafide misappropriation of complainant’s Demat a/c. It was stated that the OP 3 replied on 04.6.2013 by a letter to OP 2 depicting the complaint a frivolous, concocted and imaginary story to save his skin. On enquiry by the complainant to OP 2 regarding reply of OP3, the OP 2 evaded the responsibility for taking proper steps and the complainant alleged that OP 3 did all such acts and deeds in connivance with OP 2.
The OP 1’s Advocate sent a reply to the letter of complainant’s Advocate, as stated in the complaint, which was contradictory as deemed to the complainant. On one side, OP 1 said that the complainant had no such Demat a/c number, on the other side, they stated that the complainant had authorized OP 3 to sell shares. But the complainant denied issuing any such authorization, as per proforma supplied by the authority concerned.
The complainant prayed to the Ld. Forum for direction on the Opposite Parties to pay litigation cost of Rs 10000/-, original amount including compensation of Rs 170000/-, Rs 50000/- for mental agony and sufferings and interest @ 12% upon original holding amounts.
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*WRITTEN VERSION OF OP1 Dated 03.02.15:The OP1 stated the complaint to be not maintainable and it is barred by law of Limitation, question of jurisdiction of Ld. Forum has been raised. Ridiculing the complaint, the OP questioned who the complainant is.
At Para-8 of the WV (page 2), it is stated that the complainant is not at all a consumer as he had been using the services of OPs for commercial purposes for making profit through buying and selling shares and so, the dispute is not a consumer dispute. It is stated that the complainant’s Demat a/c No. is 10178191 and not S 2093 as claimed in the complaint (para-9, page 2). At para 9a and 9b, page 2 of WV, it is stated that the complainant’s purchase turn over during FY 2011-12 was Rs 13.60,544/- and sale turn over amounted to Rs 14,31,504/- and he had traded in shares of 24 different companies. During FY 2012-13, complainant’s purchase turn over amounted to more than Rs 2.19 crores (mistakenly stated to be Rs 2.90 crores) and his sale turn over amounted to more than Rs 2.18 crores of which delivery based trading amounted to Rs 61,54,219/- and trade based amount was Rs 3,76,45,854. It is stated that he traded in shares of 127 different companies during the stated FY.
That OP 3 sold the shares in the name of the complainant has been denied at para-10, page 3 of WV and that the complainant had given verbal instructions to sell the shares is substantiated from “ order placement Instructions” signed by the complainant as annexed as ‘A’. Moreover, the “Power of Attorney” dated 28th Nov., 2011 signed by the complainant clearly indicates at point no.1 that “all acts done by the OP 1 and 2 shall be deemed to be acts done by on our behalf”, annexed as “B”. The complainant’s going to OP 2’s office for enquiries has also been denied. At para-12, page 3 of WV, it is stated that “no employee of Peerless Securities including Branch Manager is authorized to trade on your behalf”. Photocopy of Client Registration Kit is annexed as “C”.
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In reply to para 5,6 and 7, the OP 1 stated denial at para-13, page 3-4 of WV and told that complainant’s Bengali signature in letter dated 30.4.2013 did not match with that kept in the OP 1’s data base. Moreover, the complainant all along mentioned the UCC (Unique Client Code, S 2093) as Demat a/c which is 101789 (mistaken for 10178191). The two are completely different as UCC is connected with NSE and used for trading of shares but Demat a/c is connected with NSDL and used for holding the shares.
At para-14, it is stated that as per Terms & Conditions (Do’s and Don’ts), the complainant cannot come to Consumer Forum for redressal of his grievances and he should have gone to Stock Exchange and if not satisfied, then to SEBI. Photocopy is annexed as “D”. For mental harassment as alleged, the complainant did not register e-complaint and so, he cannot agitate his claim for mental agony, compensation etc under the Consumer Protection Act, 1986. A format copy of e-complaint is annexed ax “E”.
At para-16, page 5 of WV, the OP1 stated that the complainant was satisfied with the credibility of OP1 and as per standard practice, all transactions are made on instructions of a/c holder and all documents are forwarded to such a/c holder. So, question of misappropriation of share trading of the complainant does not arise at all.
At para-17, the OP1 cited the case of Unit Trust of India-Vs-Sabitri Devi Agarwal by the Hon’ble National Commission, New Delhi, 2000 CPR-2, page 51, where it was held “The C.P.Act is not for entertaining or compensating speculative transactions or losses.” It has, therefore, been prayed for dismissal of the complaint in limini
Evidence on Affidavit filed by OP1 on 25.02.2015: The said Evidence is almost similar to the WV filed by the Compliance Officer of Peerless Securities Ltd. Even the mistake of 2.90 crores at para-11b of Evidence as was detected in the WV remained the same.
Affidavit-in-Chief filed by on behalf of the Complainant on 19.3.2015:
The complainant repeated the same mistake of Demat a/c no. to be S 2093.
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At para-9, page 5 and 6 of A/Chief, the complainant denied OP1’s version reg. holding a/c nos.and figures of transactions during the stated FYs. At para-10, the complainant denied any verbal instruction given over phone to sell the shares, denied signing any “order placement Instructions” but admits giving “Power of Attorney”. All other versions of OP1 in WV and Evidence on Affidavit have been denied with the refrain starting with“Not a fact”.
Questionnaires filed by OP1 through Advocate on 17.4.2015:
Thirteen questions were made to the complainant to answer. All questions were from the contents already reflected in the WV and Evidence-on-Affidavit.
Reply to Questionnaires by Advocate of Complainant on 18.6.2015:
In reply, the complainant admitted that he took the Demat no. as S-2039 since no other no. was supplied by the OP1. Only from W/O filed by the OP1, he came to know the Demat no. to be 10178191. At para-5, it is stated that without written instruction of the complainant, no transaction relating to Demat a/c can be made as per agreement dated 23.11.2011.
In the written brief notes of argument, the OP1 certified at page 4 that Demat a/c no. of Subrata Ghosh (complainant) is 108191 and not S 2093. This is mistakenly stated by OP1 and it should have been 10178191 (as stated in WV). The Advocate of OP1 relied on the following judgements during argument:
1) Ramendra Nath Basu-VS-Sanjeev Kapoor & Anr by the Hon’ble West Bengal Consumer Disputes Redressal Commission, Kolkata, 2009(3) CPR 92 decided on 12.01.2009;
2) Sudhangsu Bhusan Dutta-VS- The Jt. Managing Director, Mansukh Securities & Finance Ltd. & ors by the Hon’ble National Commission, New Delhi, 2014(2) CPR 572 (NC) decided on 16.4.2014.
3) Duggirala Prasad Babu-VS-M/s Skoda Auto India Pvt. Ltd. by the Hon’ble National Commission, New Delhi, 2014(1) CPR 576 (NC) decided on 04.3.2014.
4) Mithuna Developers & Builders Pvt. Ltd. & Ors-VS-Ramanand TV by the Hon’ble National Commission, New Delhi, 2014(1) CPR 625 (NC) decided on 26.02.2014.
CRITICAL ANALYSIS AND DECISION WITH REASONS
From the very beginning the complainant has been found to be casual. Until show-cause notice was issued, the complainant did not attend the Ld. Forum for Admission hearing. During proceedings, he did
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not take steps as were asked. The complainant himself started the complaint with “my client”. Demat a/c no. wasconsistently stated as S 2039 which was wrong. In the 2nd para of complaint, it was stated that shares were sold by OP2 and there after by OP3—it was confusing.
At para-10(1st sentence) of A/Chief, complainant admitted that Rajbansi(OP3) sold complainant’s share is not a fact. This is confusing and contradicts para-2 of complaint where it is stated that OP3 sold shares in the name of the complainant. The complainant admitted that he took S 2093 as Demat a/c no. from the WV of OP1 as no other Demat no. was supplied by the OP. But even after submission of WV, the complainant mentioned in Affidavit–in-Chief (para-2, page2) the Demat a/c to be S 2093. This is sheer carelessness.
Whatever claim the complainant does, the Order Placement Instructions reveal that the complainant authorized verbal order, inter alia, to execute transactions in spite of knowing the risks of consequences, which would not be disowned by the complainant.
3rd paragraph of clause 6.1 of Power of Attorney states: All such acts done by PSL shall be deemed to be acts done by on our behalf….
WHETHER THE COMPLAINT IS MAINTAINABLE OR NOT:
If we rely on and discuss the citations made by the Advocate of the OP1 as discussed at page 5, it comes as below:
For citation 1), “…..In our opinion the transactions, which took place between the parties, can never be attributed to be a transaction which comes under the purview of the Consumer Protection Act. As we all know that investors who do invest their good money in share trading with the expectancy of earning some favourable profits, at the same time undertake a huge risk of loss for which no one could be held responsible…..”
For citation 2), Share transactions do not come within the ambit of C.P.Act.
For citation 3), If subject goods are purchased for resale or for any
commercial purpose, purchaser of such goods is excluded from definition of consumer.
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For citation 4), Commercial transactions cannot be subject-matter of consumer complaint.
A transaction of the complainant being of speculative nature does not entitle him to be a consumer qua the Ops.
From discussions in the foregoing paragraphs and from speaking judgements of above stated higher Forums/Courts, it is clear that if a person investing money in share trading with expectation of profits, taking risks for which none can be held responsible if the person loses, then the person (here complainant) cannot be a consumer as defined under sec 2(1)(d)(ii) of the Consumer Protection Act,1986 and the complaint is not Maintainable.
Whether this is self-employment:
The complainant, as discussions reveal, underwent commercial transactions but he failed to take the benefit of exclusion clause (vide Explanation w.e.f. 15th March, 2003) of commercial transaction, i.e. self-employment as enumerated in the said sec 2(1)(d)(ii) of the Consumer Protection Act,1986. Neither he claimed in the four corners of complaint and A/chief that he lives on self-employment nor he submitted any evidence in this regard. So, the complainant cannot be treated as ‘consumer’ in the shield of Self-employment. Limitation:
The complaint, as the evidences reveal, is not barred by Limitation as the letter sent by complainant’s Advocate on 04.6.2014 was replied by the OP1’s Compliance Officer on 25.6.2014. Details are not necessary for the reason stated in the preceding paragraph.
Other Merits:
The complainant alleged that the OP3 misappropriated his fund of shares but he failed to prove such allegation with documentary evidences. If it is the fact that the OP3 sold the shares of the complainant without his written instruction (though there is sufficient safeguard of the OPs as shielded by Order Placement Instructions signed by the complainant), the matter comes within the jurisdiction not to be dealt with by this Ld. Forum.
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We are not meant to assess the so stated misappropriation, alleged to have been adopted by either party.
It may not be, perhaps, out of place to mention that this Ld. Forum decided a case bearing no. 506/2014 on 22.5.2015 regarding a dispute on share trading and it was held that the complainant was not a consumer and the complaint was not maintainable.
In the circumstances of what have been analytically detailed above, it appears clear that the instant complaint is not maintainable and the complainant is not a consumer under sec. 2(1)(d)(ii) of the Consumer Protection Act, 1986 amended so far and therefore, is not entitled to any relief as prayed for and we proceed to pass
ORDER
1) That the complaint be and the same is dismissed on contest against OP1, OP2 and OP3.
2) That the complainant is at liberty to seek redressal of his grievances at the IGRP (Investor Grievances Redressal Panel) set up by the Exchange or at any other appropriate court of law, as deemed fit by him.
Parties are to bear their own costs.
Let a copy of this order be supplied to the parties when applied for.
Member Member President
Written & Typed By me.
