DATE OF FILING : 21-03-2013. DATE OF S/R : 18-04-2013. DATE OF FINAL ORDER : 27-08-2013. Smt. Sumana Ghosh, wife of Sri Bisajit Ghosh, residing at 22/8, Brindaban Mullick Lane, P.O. Kadamtala, P.S. Bantra, District – Howrah, PIN – 711101.-------------------------------------------------------------------- COMPLAINANT. - Versus - 1. The Manager, Marwadi Shares And Finance Ltd., having its office at Marwadi Financial Plaza, Nana Mava Main Road, 150, Feet Wide Ring Road, Rajkot – 360005. 2. Sakshi Securities, registered franchises of Marwadi Shares and Finance Ltd., having its office at 47B, Nalini Sett Road ( 3rd floor ), P.S. Barabazar, Kolkata – 700007. 3. State Bank of India, Howrah Branch, Howrah.-------------------------------------------------------------OPPOSITE PARTIES. P R E S E N T President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS. Member : Shri P.K. Chatterjee. Member : Smt. Jhumki Saha. F I N A L O R D E R 1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the o.p. no. 1 & 2 to make payment of Rs. 1,04,166/- as remaining invested amount and to pay compensation to the tune of Rs. 1,50,000/- for causing physical and mental harassment and for litigation costs of Rs. 10,000/-. 2. The complainant opened a demat and trading account being no. KA 1892 to the o.p. no. 1 through the O.P. no. 2 and made payment of Rs. 400/- by paying a cheque in favour of O.P. no. 1. The O.P. no. 2 shall purchase the equity shares according to the choice of the complainant. With a view to invest and purchase the shares, the complainant made a payment of Rs. 1 lac by issuing a cheque dated 22-09-2011 through State Bank of India, Howrah Branch, and further invested Rs. 1,10,000/- through a cheque dated 13-10-2011 to the O.P. no. 1 through O.P. no. 2. But the O.Ps. did not ask, nor took the consent in which company the complainant would like to purchase the share violating the earlier assurance. The O.Ps. used to sell the shares according to their own choice and the profits derived was never disclosed to the complainant. They used such type of practice only to deceive the complainant. In spite of repeated requests or reminders to the O.P. no. 2, O.P. no. 2 never furnished the purchase and selling transaction of the invested money of the complainant. Lawyer notice was sent to the O.Ps. on 18-01-2012. No tangible result being achieved, the complainant sent a notice to the Regional Manager ( SEBI ) on 22-02-2012 praying for investigation for practicing fraud by the O.Ps. A meeting was held on 28-04-2012 at the office of the National Stock Exchange of India at 1st floor Park View Aparments, 99, Rash Behari Avenue, Kolkata. Before that meeting the O.Ps. sent a proposal on 17-04-2012 that if the complainant withdrew the complaint, O.Ps. would give compensation to the complainant. The complainant signed on an agreement for settlement and sent a letter for withdrawal of the complaint lodged before the SEBI. Being entrapped complainant signed in a stamp paper of Rs. 20/- and the O.Ps. only made payment of Rs. 90,000/- by cash. To get back the balance the complainant lodged a written complaint on 04-10-2012 against the O.Ps. and when it did not yield any fruitful result the complainant applied for arbitration on 21-01-2013 but the Arbitrator’s award was totally bad and was passed on the basis of perverse finding. 3. The O.Ps. in the written version challenged the maintainability of the instant case on the ground of arbitration and contended interalia that the complainant is not a consumer and the purchase of share does not involve the issue of livelihood, rather it is a commercial purpose ; that the complainant should go to the Civil Court for adjudication of the dispute and that all the allegations are denied. 4. Upon pleadings of both parties two points arose for determination : i) Whether the complaint is maintainable ? ii) Is there any deficiency in service on the part of the O.Ps. ? iii) Whether the complainant is entitled to get any relief as prayed for ? DECISION WITH REASONS : POINT NO. 1 5. In view of Section 3 of the Consumer Protection Act, together with opinion of the Hon’ble Apex Court as reported in 2000 ( 5 ) SCC 294, existence of an Arbitration Clause in the agreement cannot serve as a bar to the entertainment of the complaint by this Forum. Hence, we are of the view that the complaint is quite maintainable before this Forum. Accordingly, the point no. 1 is disposed of. POINT NOS. 2 & 3 : 6. Both the points are taken up together for consideration. In view of Section 2(1)(d)(ii) of the C.P. Act, 1986 the complainant by making requisite fees opened a demat account before the O.P. no. 1 and subsequently opened on good faith and trust invested Rs. 2,10,000/-. By such act, the complainant became a consumer under the O.Ps. The argument put forward on behalf of the O.Ps. that the complainant is not a consumer as she purchased the shares for commercial purpose, appears to us to be too fragile to merit acceptance. This is because huge amount of money was not invested before the O.P. company. On the contrary, only an amount of Rs. 2,10,000/- was invested. Furthermore, the complainant is a housewife having no knowledge regarding the business of the O.Ps. The O.Ps. by taking the advantage of her ignorance and innocence practiced fraud upon her which is not at all supportable from the point of view of law. Therefore, there cannot be any dispute that the complainant is a consumer. The O.Ps. after receiving the requisite fees and commission vide Section 2(1)(o) of the Consumer Protection Act, 1986 are liable to provide facilities and service. 7. Now let us examine how far the O.Ps. are guilty of deficiency in service and for unfair trade practice. At the time of making payment of Rs. 1 lac, the O.Ps. neither asked nor took the consent of the complainant in which company she would like to purchase the shares. This act of the O.Ps. are the gross violation of the agreement that the O.Ps. would seek prior consent and advice of the complainant before investment. On the contrary, the O.Ps. used to sell the shares according to their own choice without taking prior consent and instruction of the complainant and they themselves derive the profits by selling of the shares behind the back of the complainant. This conduct of the O.Ps. amounts to deficiency in service and can easily be branded as unfair trade practice as enjoined U/S 2(1)( r ) of the C.P. Act, 1986. 8. Therefore, in the light of above and after consultation of the enclosures we are of the clear view that the O.Ps. took recourse to unfair trade practice taking advantage of the ignorance and innocence of the complainant who is just a house wife having no knowledge of the complicated tit bits of the share market. We also trace gross deficiency in service in their conduct by not letting her know about the purchase and investment of her hard earned money. Therefore, this is fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of. Hence, O R D E R E D That the C. C. Case No. 76 of 2013 ( HDF 76 of 2013 ) be and the same is allowed on contest with costs against the O.P. nos. 1 & 2 and dismissed without cost against the O.P. no. 3. The O.P. nos. 1 & 2 be directed to refund Rs. 1,04,166/- together with interest @ 10$ since 13-10-2011 to the complainant within one month from the date of this order. The o.p. nos. 1 & 2 do further pay a compensation to the tune of Rs. 1,50,000/- to the complainant for causing mental pain and prolonged harassment to the complainant. The complainant is further entitled to litigation costs of Rs. 5,000/- from the O.P. nos. 1 & 2. The complainant is at liberty to put the decree into execution after expiry of the appeal period. Supply the copies of the order to the parties, as per rule. DICTATED & CORRECTED BY ME. ( T.K. Bhattacharya ) ( T.K. Bhattacharya ) President, C.D.R.F.,Howrah. President, C.D.R.F.,Howrah. ( Jhumki Saha ) ( P. K. Chatterjee ) Member, C.D.R.F.,Howrah. Member, C.D.R.F.,Howrah. | 
