(|Delivered on  07/03/2017)

Per Smt. Jayshree Yengal, Hon’ble Member

1. The original complainant Shri Omprakash Khobragade has preferred this appeal being aggrieved by the order dated 31/03/2010 passed by the District Consumer Forum, Nagpur, dismissing the consumer complaint bearing No. 575/09.
2. Appellant Mr. Omprakash Khobragade is referred as complainant and respondent India Infoline Ltd. through its Director and Divisional Manager are referred as OP for the sake of convenience.
3. Facts in brief as set out by the complainant in his consumer complaint are as under.  

1. OPs India Infoline Ltd are doing the business of shares. The complainant  had purchased 187 shares of Reliance Group of Companies 20 years ago. The details of which being 60 shares of Reliance Company, 60 shares of Reliance Communication, 3 shares of Reliance Capital, 4 shares of Reliance Infra Ltd.  and 60 shares of R.N.R.L.  Reliance Company is one of the leading business company of India. The complainant also opened a demat account bearing No. 1204470003307165 with ID as “Omprabhu” which is mandatory under the terms and condition of SEBI. It is the contention of the complainant that as he had opened the demat account and as the OP No. 2 is rendering service in respect of monitory transaction in shares, it is obligatory  on the OP to inform the complainant the monthly and quarterly status of the shares which the complainant  had purchased. It is also obligatory on the part of the OP to advice the complainant  about the sale purchase or transaction to be proposed in the business of shares. The OP No. 2 not only failed to advice the complainant but also when complainant visited the office of OP No. 2 to cheque the port folio, he  was shocked to see debit balance in complainant’s account.
2. It is the contention of the complainant that the OP without any instruction or authority  from the complainant  and without informing the complainant, opened the complainant’s demat account and   dealt with shares and  also sold them. It is further contended by the complainant that approximately there should have been a credit balance of Rs. 2,00,000/- in his demat account. However the complainant had incurred loss  because the OP No. 2 failed to render proper service and transacted in the complainant’s demat account without the complainant’s knowledge, instruction and  authority. The complainant alleging deficiency in service prayed for restoration of his demat portfolio to the presale stage that is 187 shares of the company and cash  Rs. 2,555/- in credit of demat account.  The complainant also prayed for Rs. 2,00,000/- to be paid  to the complainant by OP No. 2 towards the 187 shares of Reliance Company which were sold by him.

4. The OP India Infoline Ltd. resisted the complaint by filing its written version and denied all the adverse allegations of the complainant. The OP has specifically submitted that the complainant is not a consumer as he had opened the demat account to earn profit from the business of shares. All the transactions undertaken were  for commercial purpose and therefore the complainant  does not  fall under the definition of consumer as per Section2 (1)(d) of the Consumer Protection Act, 1986. The OP therefore sought for dismissal of complaint on this preliminary ground.  The OP on merits has specifically submitted that there was an agreement of Broker-Client executed  between the complainant and OP and in pursuance to the aforesaid agreement, the complainant had given his consent for sale-purchase transaction and dealings on behalf of the complainant.  The OP  has not committed breach of  any terms and conditions of the agreement. The OP denied to have rendered any deficiency in service and sought for dismissal of complaint.
5. The complainant by filing rejoinder to complaint has alleged   in support of his contention that the OP had sold 187 shares  unauthorizedly  and caused loss to him.  One Mr. Amar Dipak Bankar, employee of the OP had  given in writing on Rs. 50 Non judicial stamp paper admitting that   he had sold the shares  of  the complainant without the complainant’s permission and therefore he is liable and ready to compensate the complainant  and therefore he had issued four blank signed cheques of HDFC bank to the complainant.  
6. The Forum after hearing both the sides and perusing the documents on record, dismissed the complaint as aforesaid. The Forum in its order has specifically held that the complainant has failed to prove that the OP had rendered deficiency in service  or committed breach of the terms and conditions of the agreement executed between them.
7. The complainant has challenged the dismissal of the complaint by filing appeal on the ground that the Forum in its order has failed to see that the OP had rendered deficiency in service by unilaterally selling  the shares of the complainant from time to time and instead of showing credit balance,  due to deficiency in service the demat account of the complainant reflected debit balance.
8. Both the parties have filed written notes of arguments. We  have perused the same. We have perused copies of the complaint, written version and other documents filed on record. The respondent has relied on the citation as enlisted below.

1. Vijay Kumar Vs. Indusind Bank, 2012 (2)CPJ 181 (NC)

It is observed that appellant is not a consumer as trading in shares.

2. Morgan Stanley Mutual Fund Vs. Kartick Das, 1994 AIR SCW 2801

It is observed that dispute relating to share transaction cannot be entertained by Consumer Forum.

3. State Bank of Travancore Vs. Kingston, 2011 AIR SCW 1948

It is observed that document executed without authority of company is not binding on the company.

          In aforesaid case of VijayKumar Vs. Indusind Bank, 2012 (2)CPJ 181(NC), the Hon’ble National   Commission has held that petitioner nowhere pleaded in entire complaint that he is doing share trading business by way of self employment to earn his livelihood. The dispute between the parties is relating to commercial purpose are excluded under the Consumer Protection Act, 1986. Regular trading in purchase  and sale of shares  is a commercial transaction and the only motive is to earn profit. The complainant cannot be  a consumer as defined under Section 2(1)(d) (ii) of Consumer Protection Act, 1986. We find that the ratio laid down in the aforesaid judgments falls squarely applicable to the facts  and circumstances of the present complaint and the complaint deserves to be dismissed on this preliminary count. However the Forum has proceeded to decide the complaint on merits and held that the complainant has failed to prove breach of terms and conditions of the agreement. We find no illegality or infirmity in the impugned order and hence the appeal deserves to be dismissed being devoid of merits. In the result, we pass the following order.

ORDER

1. The appeal is dismissed.
2. The impugned order dated 31/03/2010, passed by the District Consumer Forum, Nagpur in consumer complaint bearing No. 575/09 is confirmed.
3. No order as to costs in appeal.
4. Copy of order be furnished to both the parties, free of cost.