Smt. Bandana Roy

          Fact of the case is that the Complainant, Sri Chittaranjan Bera, by an agreement with the OP No.1 Company has opened D-Mat –Account (Share Trading Account) after his retirement through OP No.2 who according to Complainant was the agent of OP No.1 Company and is also Head Master of one Teghari Primary School under Police Station, Tamluk.

          It is the Complainant’s case that the OP No.2 in addition to his profession as a School teacher asked the Complainant to be a member of the establishment of the OP No.1 Co. for investing the money which is kept idle in the bank Account of the complainant for lucrative monthly gain.

          It is further case of the complainant that being convinced at the handsome offer made by the OP No.2, for better livelihood after his retired life,  he handed over a Cheque amounting to Rs.1,000/- dt. 21.03.2015 as a subscription amount for enrollment in the OP No.1 Company vide Cheque No. 341229 dt. 21.03.2015 drawn on Durgachak Branch of S.B.I.

          It has been further alleged by the complainant that the aforesaid cheque was encashed by the OP No.1 Company on dated 25.03.2018 and on the same date the Complainant handed over another Cheque Vide No. 341230 dated 21.03.2015 amounting to Rs.2,00,000/- to the OP No.2 for the purpose of investment in the Company which was encashed on 24.03.2015 by the Company. Further Complainant has stated in his Complaint that he has received all relevant papers and the receipt and to that effect, vide client Code No.70540033 and the DP Client vide Code No.120463000154170.

          It is the Complainant’s case that the OP No. 2 had executed a bilateral agreement on a Rs.10/- Stamp Paper on 25.03.2015 accepting various terms and conditions that the OP No.2 shall take all responsibilities to operate the Code Vide No. 705540033 and Rs. 2000/- Per Lakh would be paid to the complainant every month till Complainant keeps his investment alive under the OP No.1 company and on further condition that he would give the complainant 50% of the bonus accrued during a financial year and OP No.2 would keep the other 50% as his labour and management.

          It has been alleged by the Complainant that for the first two months that is 5.5.2015 and on 02.06.2015, for the month of April and May the OPs deposited Rs.4,000/- each in the Complainant’s bank account and on 05.06.2015 the OP No.2 further approached the Complainant to invest another Rs. 1,00000/- on the same terms and conditions and on considering the earlier result, the Complainant handed over a Cheque amounting Rs. 1,00000/- to the OP N.2 on such pre text vide Cheque No.909028 drawn on S.B.I. Tamluk Branch and the same was encashed by the OP No.1 Company on 11.06.2015.

          It has been further alleged by the Complainant that in the third month a sum of Rs.6,000/- was accrued in his S.B.I. account on 07.07.2015 by any  NEFT HDFC….8 BMA WEALTH and also alleged that the OP No.2 has delivered the Complainant one statement only for the first month but did not issue any further statement as per verbal assurances.

          It is the case of the Complainant that no more amount of money was accrued in the said account of the Complainant. Thereafter complainant made several contacts with the OP No.2 regarding the irregularities. It is further stated by the Complainant that OP No. 2 assured the Complainant that he is facing some problems with the OP No. 1 Company and further assured to make payment of all dues.

          Complainant stated that in April 2016 the OP No.2 issued a Cheque Rs. 20,000/- drawn on P.N.B. Tamluk Branch, which the complainant duly encashed on 13.04.2016. Similarly the Complainant has also stated that in May 2016 and June 2016 the OP No.2 has also issued two cheques amounting to Rs.20,000/- each, which the complainant duly encashed from his bank account.

          It has been admitted by the complainant in the application under section 12 of the Act, that the OP had paid a total debenture amounting to Rs.74,000/- in favour of the complainant out of total dues of Rs. 1,92,000/- till the date of filing of the complaint.

          It is further stated by the Complainant that the OP No. 2 had issued a cheque Vide No.447302 drawn on P.N.B. Tamluk Branch amounting to Rs. 10,000/-. Thereafter Complainant duly posted the cheque in his S.B.I Account but presently, the said cheque was dishonored for “Fund insufficient.”

          Hence, the complainant has prayed for directing the OPs to pay the complainant the Principle amount of Rs.3,00000/- and to pay debenture (interest as per agreement) amounting to Rs. 1,18,000/-and bonus or Rs.25,000/- for the harassment of mental agony suffered by the complainant and litigation cost of Rs.10,000/-.

          OP No.1 & 2 contested the case by filing Written Version. OP No.1 has alleged the complaint as framed is bad in law and not maintainable in its present form. OP No.1 alleged that the complaint is barred under the law of arbitration because of contract between Opposite Parties No. 1 & 2 as arbitration clause has mentioned in the KYC which has been duly signed by the complainant and it was mentioned there that if any party of the contract aggrieved, for sorting out the problems, there should be appointment of an arbitrator to settle the matter. It is also alleged that knowledge of alleged contract between complainant and OP No. 2 and all the allegations as stated in the complaint also lies against OP No.2 and not against the OP No.1 and hence, the case is not maintainable against OP No.1. In para 13 of the Written Version of OP No.1, OP No.1 admitted that OP No.1 has a Share Broking Company and OP No.2 introduced complainant to OP No.1 and Complainant expressed his desire to invest money in Share Market through the OP No. 1. It is stated that any KYC it is clearly mentioned that the complainant shall make investment in the share and debenture in the Stock Market and it is also stated that in the said KYC there is a risk involved in the Stock Market and there is no secure profit in the Stock Market and as well and as they all know that the amount and complainant may earn profit or may earn loss as because there is no fixed guarantee and profit in the Share Market. OP No.1 also stated that booklet supplied to the complainant, which has been received by the complainant after signing the booklet. Accordingly, OP No.1 alleged that the Consumer Case is not maintainable against the OP No.1 and should be dismissed against OP No.1. OP No. 2 brought a stamp paper of Rs.10/-.

          OP No.2 alleged that the case is not maintainable under the provision of Consumer Protection Act. Complainant can’t get any benefit as per the specific terms what invested in Share Market that the Share Broker BMA WEALTH Creators of that BMA COMMODITIES PRIVATE LTD. who are the authorized Share Market Broker and the complainant invested his money with that Broker at his own risk in Share Market and there is no scope for the OP No.2 to compensate the complainant in respect of the investment.

          OP No.2 admitted in para 18 of the Written Version that OP introduced complainant in the Share Market and that the Share Broker BMA WEALTH and CREATORS of BMA COMMODITES PVT. LTD. for opening D-MAT Account with them as per own signed of the application form. OP introduced the complainant that Share Broker and the complainant invested his money with them directly by issuing cheque and when there was falling in the Share Market the complainant made illegal pressure upon the OP and forced to sign in the blank stamp papers or Rs.10/- . Subsequently, made it typed as per own words and now trying to use that paper as an agreement between the complainant and OP No.2 for getting illegal benefit. It is also alleged that complainant who was an employee in the Judicial Department of Govt. of West Bengal and so, posted at Tamluk Court for long time and also after his retirement he is working in the Forum has manufactured an illegal agreement and time to use this against the OP as there was a family friendship with the complainant and his stated Dilip Soutya. This OP denied the execution of such an agreement by the Complainant and OP. OP No.2 alleged that there was no deficiency in service on behalf of the OP No.2 and the case should be dismissed.

          On the pleadings of the parties the following issues were framed for the purpose of discussion.

1. Whether the case is maintainable?
2. Whether the complaint is entitled to get relief under the present law?

Decision with Reason

          Both the issues are taken up together for the convenience of discussion.        

We have perused all the materials on record filed by the complainant and the Opposite Parties. Both the Ld. Lawyer Opposite Party no. 1 and 2 submitted that the complaint is not maintainable in this Forum as because complainant paid the cheque by the OP No.1 has invested and the Client Code were delivered to the complainant by OP No. 1 for the purpose of the dealing with Share Trading in the Share Market knowing fully well as to the risk of investment in the Share Market Open the D-MAT again the Share Market on behalf of the complainant. It was argued that the complainant has not been regularly trading in the share business of lose incapable of understanding by that that the same is not commercial activity. More so, the complainant has alleged that the OP No. 2 the agent of OP No.1 who took responsibility in treating in charge of business and if so in accordance with Section 230 of Indian Contract Act, the agent can’t be held liable for the act, by the office manager. Complainant admitted that D-MAT Account was opened by the Complainant in OP No.1 Company.

          It is prima facie reflecting that the D-MAT Account in OP No.1 Company was formed due to the formed in the parties of trading in shares in view to make profit but has ended up under West Bengal and had retired on 31^st January 2015 and whereas, the agreement was entered by the complainant and the OP No.1 Company on 23.03.2015.

          It appears that the bilateral agreement that the OP No. 2 was entered on 25.03.2015 the agreement was entered between the complainant and the Opposite Parties after his retirement and hence, he invested amount of money for transaction from his savings account. It is argued by the Ld. Lawyer of the complainant that in term of Section 3 of the Act, provision of the Act shall be in addition to provision of any law for the time being in force whatever may be the reason.  This Ld. Lawyer for the OP No.1 and 2 submitted that forum is bound by the decision in Goutam Das vs. Sun Pharmaceutical Industries Ltd. reported in 2010 4 CPR 1 “A Share Holder can’t be the Consumer and therefore the Complainant is not maintainable”. Admittedly the Complainant invested Rs.3,00000/- and Rs.1,000/- as fee which was encashed by the OP No. 1 Company.

          OP No.2 in his Written statement stated in paragraph No. 18 that he has introduced the complainant through OP No.1 and as such it can’t be presumed that the OP No.2 had knowledge and scope of business of the OP No.1 Company as the OP No. 2 has admitted that there is introduction that the complainant, complainant had opened the D-MAT Account un the OP NO. 1 Company further the OP No.2. Further admitted that the complainant had issued cheque in favour of the OP No.1 Company and upon the file of Share Market the complainant started creating pressure upon the OP No.2 for his payment and had forced OP No.2 to sign on a blank Stamp Paper of Rs.10/- and as such the complainant had subsequently, typed the contents on the said blank Stamp Paper and is using the said document as alleged agreement between the complainant and OP No.2 for illegal benefits.  Upon scrutinizing the document it reveals that the same was purchased by OP No.2 in his name written on the back sheet of the alleged Contract Form.

          In the written version the OP No.2 also denied the agreement between complainant and the OP No.2, OP No.2 sometimes made payment to the complainant that assurances of returning the same and in this regard the OP No.2 had issued Rs.2,0000/- Vide  a cheque in favour of the complainant.  When subsequently the complainant disclosed the existence of a bilateral agreement prepared on the blank signed stamp paper the OP2 did not allow the complainant to encash the above stated cheque. 

          Prima facie it appears that OP No.2 admitted that OP NO.2 had introduced the complainant to the OP NO.1 Company and has also further admitted that a document of 10,000/- non-judicial stamp paper in another was signed by made whereas, it is also the case of OP No.2 that he issued a cheque Rs. 20,000/- in favour of the complainant which collectively draw presumption that the OP No. 2 was well aware with OP No.1 Company and in his investment, the complainant had entered into an agreement with the OP No.1  by executing the agreement Kit and whereas the said Kit also bears the name of OP No.2 under the heading “introduction details” and the same was executed 23.03.2015 and whereas the alleged contract Form was executed on 25.03.2015 and OP NO. 1 Company in his Written Statement or written version has denied in para 13 that the OP No. 2 was its agent rather has stated that the OP NO.2 the relative friend/well-wishers/ of the complainant and has also stated that the OP NO.2 introduced the OP NO. 1 Company to the complainant and only thereafter complainant expressed his desire to spent money in the share Market.

          OP No.2 in the written copies of argument has also admitted in para 3 that the role of OP No. 2 was only to  introduce the complainant with the company and the OP No.2 was the client of OP No.1 company and has also further admitted in para 3 D that he has signed the said in Judicial Stamp Paper and further agreed  in para 3 F that he has also issued a cheque of Rs. 20,000/- and of this admission Account through aware in the light of same allegation made by OP NO.2 that the same was under forced made by the complainant.

          So the merit of the case is following

1. The OP No.2 admitted that he introduced the complainant with the OP No.1 Company but has not rebutted by producing evidence is concerned to introduce the complainant to the OP No.1 Company.
2. The OP No.2 has not disputed his signature on the non-judicial stamp paper which was also purchased in his name.
3. OP No.2 has also not disputed that he issued a cheque in favour of the complainant amounting of Rs.20,000/-
4. OP No.2 has also admitted in his WV that he is also a client of OP No.1.
5. The complainant on prima facie satisfied that his entire life was serviced under Govt. of West Bengal till his retirement and it can be safely presumed that he is never been engaged in a business-like share trading.

We have also scrutinized the questionnaire and reply filed by the OPs and we hold that OP No.2 was the agent of OP NO.1 OP & NO.2 introduced complainant with the OP NO.1 and the stamp paper was purchased in the name of OP No. 2. It will be presumed that OP No.2 was very much aware of the agreement which was entered between the complainant and OP No.2. The terms of the contract was that 1^st party well take the responsibly to the Code No. 70540033 of the 1^st party well take all the responsibilities to deal with code No. 70540033 of 2^nd Party well take rest 2,000/- per month from the concerned company at the risk of 1^st party per lakh. If any bonus is accrued in the said code No. 50% thereof will be given to the 1^st party that is OP NO.1, remaining 50% to the 2^nd party that is the complainant will have the liberty to withdraw the deposited money subsequently, at any time. From the statement it appears on the basis of such agreement on 11.06.2015 complainant paid Rs.2,00000/- and subsequently paid Rs. 1,00000/- . It appears that, complainant without having knowledge that it is a share trading agreement, entered into an investment business with the OP No. 1 at the instance op No.2 and the act of the OP No.2 tantamount to deficiency of service in terms of the conditions of the investment when he stopped payment to the complainant as per the agreement between him and the complainant. So complainant is entitled to get refund of the money by deducting the amount of Rs.74,000/- which admittedly he received from the OPs. In this case we do not prefer any compensation to the complainant and he is only entitled to get litigation cost of Rs.2,000/-. OP no.2 is also liable to refund Rs.20000/- to the complainant.

In summing up entire materials on record we find that the OP no.2 persuaded the complainant to invest in the OP No. 1 company at the own risk of OP no.2 and the complainant with utter belief upon the OP no. 2, who is also Head master of a Primary School agreed with the OP no. 2 notwithstanding the nature and merit of the investment. The OP no. 2 and complainant entered into an agreement by which the OP no. 2 took all the responsibility to deal with the OP no. 1 on behalf of the complainant as the complainant unequivocally admitted in the complaint that he was not aware of nature of the investment. The cheques for investment were issued in favour of the OP no. 1 and the dividends were also allowed in favour of the complainant through OP no. 1 and sometimes by the OP no. 2 by cheques. In the above circumstances this Forum is convinced that both the Ops are liable to pay the complainant the principal amount of his investment in equal share.

Regarding the claim of the complainant for Rs. 1,18,000/-( Rs. 1,92,000/- (-) Rs. 74,000/- already paid we hold that considering the nature of the investment, the complainant is not entitled to get any more dividend from the OPs baring what has been received by him i.e Rs. 74,000/- in all. However, the chqeue amount of Rs. 20,000/- which had been issued by the OP no. 2 and bounced, is to be paid by the OP no. 2 in addition to the amount as above.

                             Hence, its                     

Ordered

            That the case No.CC 1/2018 be and the same is allowed in part on contest against both the Ops.

                Both the OPs are directed to pay a sum of Rs 2,26,000/- ( Rs. 3,00,000/- (-) Rs. 74,000/-)  in equal half share each i.e sum of Rs. 1,13,000/-  along with litigation cost of Rs. 2,000/-and the OP no. 2 is further directed to pay further sum of Rs. 20,000/- to the complainant within one month from the date of this order, failing which the OPs will be liable to pay 9% interest per annum on the awarded amount till final realization of the full amount.

Copy of the judgement may be given to the parties free of cost.