Judgment : Dt.11.10.2017

Shri S. K. Verma, President.

            This is a complaint made by one Firoza Bibi, wife of Safiuddin Khan, son of Lt. Moharuddin Khan of Majherpara, Banhoogly, Sonarpur, Dist.-24pgs, PIN-700 103 against the Director, Unitrade Commercial Pvt. Ltd. of 370, Block K, Plot No.271, HSBC Bank, B.M.Sarani, New Alipore, Kolkata-700 053, OP No.1 and Unitrade Commercial Pvt. Ltd. of 370, Block K, Plot No.271, HSBC Bank, B.M.Sarani, New Alipore, Kolkata-700 053, OP No.2, praying for a direction upon the O.P. to refund the invested amount for the sum of Rs.1,20,000/- with statutory interest and a direction upon the OP for payment of compensation to the tune of Rs.5,00,000/- and litigation cost to the tune of Rs.50,000/-

            Facts in brief are that Complainant invested in the OP No.1 Company. OP agreed to the Complainant that before investment the Company will obtain a written permission which OP failed to do so. Complainant did not receive any such request from OPs. Complainant states that it was agreed by and between Complainant and OP that OP shall make payment of interest @3% per month of the amount as invested during the period taken by the OPs. But, all such assurances failed by the OP. Complainant did not receive any interest or dividend. Complainant in the meantime requested several times to give proper ledger of his account  as well as interest. But the requests of the Complainant went in vain. Complainant finding no other alternative asked the OP to refund the invested amount by a letter dt.7.9.2015. In reply, OP failed to refund the amount. But, on the contrary OP asked Complainant to deposit a sum of Rs.7,260.73/- with a note that the said amount is Debit Margin. Complainant submits that in the above premises, Complainant requested the OP through a letter dt.21.1.2016 issued by the Ld. Advocate of the Complainant to refund the invested amount of Rs.1,20,000/- with statutory interest within 7 days. OP replied to the letter denying the allegations. Complainant has stated that he issued a legal notice to the OP. But of no use. So, Complainant filed this case.

            OP filed written version and denied all the allegations of the complaint. Further, OP has stated that Complainant is not a consumer and so this complaint is liable to be dismissed. The transaction between the Complainant and the OP is a share trading and does not cover under the Consumer Protection Act. Complainant is a sub-broker. She herself deposited Rs.21,000/-. So, OP prayed for dismissal of this complaint.

Decision with reasons

            Complainant filed affidavit-in-chief to which OP filed questionnaire and Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for refund of Rs.1,20,000/- with statutory interest and compensation of Rs.5,00,000/- and litigation cost of Rs.50,000/-.

            Further, on perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply, it appears that Complainant made a share trading by paying Rs.1,20,000/-. It is settled principle that share trading is fraught with market risk. Complainant has not made out a case with the shares for which he made investment were valued either more than what he had invested or even as equal to what he had invested. Complainant has prayed for refund of Rs.1,20,000/- which he invested in shares.

            OP has taken a plea that Complainant is not a consumer which cannot be substantiated as Hon’ble National commission has made it clear that in a case M/s Indiabulls Financial VS Mr. Varghese Skaria. The judgment was delivered on 2.4.2012. In this judgment Hon’ble National commission has settled that a person invested money in share trading is a consumer and the complaint cannot be rejected on the ground that it was just share trading.

            Further, it is the binding duty of the Complainant to establish the fact as to how many shares Complainant had purchased by paying Rs.1,20,000/- and what was the value of the shares at the point when Complainant had made demand. If that is not done by the Complainant it reflects that Complainant did not approach this Forum with clean hands. It is because unless the Forum is aware about actual share trading how can it ascertain the nature of the trading and as to whether it was for earning livelihood or for commercial purpose.

            As such, we are of the view that Complainant did not approach this Forum with clean hands of the fact which he ought to have brought and for which it can be said that he did not come with clean hands. As such, Complainant failed to prove the allegations made in the complaint.

            Hence,

ordered

            CC/46/2017 and the same is dismissed on contest.