BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt.  Case No :  724  of 2009

Date  of Institution:    20.05.2009

Date  of Decision  :    06.08.2010

Smt. Kanta, #5729/A, Sector 38(West), Chandigarh – 160 014.

……Complainant

V E R S U S

1]       The Regional Director, M/s Master Capital Services Ltd., SCO 22-23, Sector 9-D, Chandigarh.

2]       The Regional Manager, National Stock Exchange of India Ltd., 4^th Floor, Jeevan Vihar Building, Parliament Street, New Delhi – 110 001

3]       The Regional Manager,Securities & Exchange Board of India (SEBI), 5^th Floor, Bank of Board Building, 16, Sansad Marg, New Delhi 100 001

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.Om Prakash, Agent of complainant.

Sh.Neeraj Sharma, Adv. for OP No.1.

Sh.Varinder Arora, Adv. for OP No.2.

Ms.Kanwaljeet Kaur, Adv. proxy for Sh.Varun Sharma, Adv. for OP No.3.

PER MADHU MUTNEJA, MEMBER

                By this common order, we are disposing of i.e. the present complaint case as well as two other connected complaint cases, as detailed below, as all are having same controversy as well as similar question of facts and law.

2]             The facts are being taken from the present Complaint Case No.724 of 2009 – Smt. Kanta vs. The Regional Director, M/s Master Capital Services Ltd. & Ors.

3]             The instant complaint has been filed by Smt.Kanta, complainant under Consumer Protection Act praying for grant of penal charges of Rs.47,844/- and Rs.11,11,568.44 along with interest @18% p.a., as per the details given below:-

4]             The facts of the case are as under:-

                The complainant had opened a Trading Account Code No.CKA16 with OPs on 12.9.2006 through Mohali Branch of Op No.1.  As per terms and conditions of the Member Client Agreement, the OP had unilaterally fixed a higher rate of brokerage but later on reduced the brokerage and had even promised to refund the excess brokerage.  Subsequently, an amount of Rs.12,797/- on account of excess brokerage was credited to the account of the complainant on 27.7.2007. 

                The complainant realized that the OPs were indulging in unauthroised and fraudulent trading in her account since June, 2007 without the knowledge of the complainant and thereby causing her a direct loss of Rs.10,64,842.82.  Also the securities, purchased by the complainant worth lacs of rupees were lying in the common pool of the OP No.1 instead of the beneficiary account of the complainant.  

                The complainant thus requested OP No.1 to send all details regarding contract note, bills, statement of account and all other related documents from 1.4.2007 onwards but no documents were ever supplied.  The complainant also took up the matter with the Investor Services Cell of OP No.2 on 24.11.2007.  As per the complainant, the OP has stated to have dispatched all documents to her via UPC.   However, no documents were ever received. According to her all post office documents showing dispatch are forged and prepared unlawfully with the connivance of the postal authorities.

                The complainant alleges that OP No.1 (Share Broker) has even cheated OP No.2 – National Stock Exchange of India (NSE) by submitting forged documents/evidence in the name of the complainant.

                The matter is now under scanning at the level of NSE and therefore, it is in  the interest of OP No.1 to avoid any further legal complications.  For this OP No.1 should clear the debit balance in the account of the complainant and also settled her accounts.  The complainant states that her securities worth more than Rs.12.00 lacs are lying with OP No.1.  The complainant has also given multiple facts and figures of transaction details about various statements of account, and fraudulent charges of amounts by OP No.1. 

                The complainant also requested OP No.3 to hold an enquiry against OP No.1 and furnish their comments by treating her case as special from all other cases.

                Not satisfied with the compliance by either of the OPs with regard to her contentions and demands, the complainant has approached this Forum for redressal of her grievance.

5]             After admission of the complaint, notices were sent to the OPs.

6]             OP No.1 in their reply have stated that the complainant had a share trading account with their Mohali Branch and was regularly provided statements of account and  trade confirmation of all her transaction in a routine manner.  Anyone dealing in such quantum cannot do  so without regular updates.  Ever since the opening of account with OP No.1, the complainant along with her family members have trading transitions of over Rs.90 Crores. 

                Also as per Member Client Agreement, redressal of any complaint is with the Arbitrator. The complainant has already approached the Arbitrator where her application as well as  review petition was rejected on 5.2.2009 and 20.2.2009 respectively.  These documents have been placed as annexures to the reply.                       The complainant has also made a complaint to NSE (OP-2) on 24.11.2007.  the detailed required by OP No.2 was not submitted by the complainant, therefore, the complaint was deemed to have been redressed and closed.  The letter dated 3.4.2008 submitted by the complainant to NSE reads as under:-

“This is reference to my complaint dated 24/11/2007, copy of reply filed by trading member received from your end and subsequent discussion with the officer of the trading member:

Upon reconciliation of statements, account and securities, I found that the discrepancies were of very minor nature.  I am fully satisfied with my accounts of trading member.

                             I hereby request you to close the case.”

OP No.1 alleges that the complainant has not given any details of her correspondence with NSE before this Forum.

                The OP No.1 has also laid reliance on Section 2(d)(ii) of the Consumer Protection Act, which defines “consumer” as under:-

“(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;” 

 In view of the above explanation, the complainant is not a consumer per The Consumer Protection Act. 

                Further, the OP No.1 has submitted that the case in hand involves such intricate questions of facts and law, which can only be adjudicated by conducting proper trial in the form of evidence and cross-examination of the witness.  The alleged dispute between the parties is purely of civil nature therefore the same can only be decided by a civil court of competent jurisdiction.

                OP No.1 has also given various details about the transaction and demands made/outstanding with regard to the account of the complainant.  They have denied any unauthorized trading in the complainants account and only because the complainant suffered losses over Rs.10.00 lacs, she has started taking the ground of harassment, so as to minimize her losses.  The complainant is a trader and has been trading in cash as well as in F & O segment of the market in NSE  and cash segment of BSE.   Shares and stocks have been purchased and sold with speculative motive.  The complainant along with her husband has always been maintaining meticulous accounts with regard to her transaction and now cannot level allegations of fraud or cheating.  The complaint made by the  complainant with NSE has already been settled.  After the Arbitrator of NSE rejected the application of the complaint, she has filed an appeal in District Court, Delhi. 

                Relying on all the above facts & circumstances, OP No.1 has prayed for dismissal of the complaint.

7]             In the reply filed by OP No.2-NSE, it is stated that the complainant has not made out any case or cause of action against NSE and thus no relief can be claimed against it. OP No.2 is a National Stock Exchange of India recognized by Central Government/Securities and Exchange Board of India (SEBI).  Its object is to support, promote and maintain a healthy market in the interest of the investor and general public and the economy.  They have submitted that the complainant has no proof of any negligence against them nor has he suffered any loss or injury from them.

                In view of the above, the complaint cannot lie against OP No.2 and their name should be deleted from the array of OPs.

8]             OP No.3 in their reply have submitted that they are only a proforma party in the complaint and no relief whatsoever has been sought against them.  There are no allegations made against them except that they have not taken any action against OP No.1. In this regard it is submitted that OP No.1 is a registered Stock Broker of OP No.2.  Placing reliance on the judgments of various courts, they have stated that the complainant is not a consumer as per the Consumer Protection Act.  OP No.3 has also stated that the NSE vide its status report dated 22.10.2008 submitted the following status of the said complaint:-

The complainant has filed case in arbitration department. The matter has been admitted Ref.No.F&O 205/2008.

Initial hearing was held on October 16,2008.  The matter has been schedule for hearing on November 21,2008.

The OP No.3 has, therefore, prayed for the dismissal of the complaint as no relief has been sought against them.

9]             We have heard the agent of the complainant and all ld.Counsel for the OPs; and have also gone through the voluminous record and evidence placed  on file by all the parties.

10]            The complainant alleges that excess commission has been charged from her account for the period starting from June, 2007 till the filing of this complaint.  In support of her allegations, she has relied upon the benefit of Rs.12,797/- credited to her account by OP No.1.  Accordingly, she has filed a claim against the OPs as per details already mentioned above.  This aspect has been denied by OP No.1 in its statement clearly stating that the complainant is not a consumer under Consumer Protection Act and the transactions referred to were of commercial transactions done with a motive of profit.  OP No.1 after denying the allegations has specifically stated that extensive evidence is required for each transaction to be proved, which is beyond the scope of Consumer Protection Act and the complainant should approach the Civil Court in case she has any grouse.  OP No.1 states that persons, who suffer losses in the stock exchange have a tendency to make allegations against their brokers to extract benefit/money from them.  Also, the complainant has preferred many other complaints before various other Forums including the Arbitrator; and the present complaint is another ‘Cog in the Wheel’  seeking to make good her loss in an indirect manner by invoking the provisions of Consumer Protection Act.  Copious documents have been attached with the reply by the complainant and OP No.1 to prove their points.  At the time of arguments also, the agent of the complainant kept on pointing out various transactions highlighting how the OP No.1 has defrauded the complainant.   It was contended by all OPs that all such transactions would not fall within the ambit of Consumer Protection Act.

11]            All transactions, as alleged by the complainant and OP No.1 are specific, and their acceptance and denial by either party would require copious oral and documentary evidence over each transaction to find out its validity and verification as per the Securities Contracts (Regulations) Act; as also the bye-laws framed by OP No.2,  which are statutory in character as held by the Hon’ble Supreme Court of India in Bombay Stock Exchange Vs. Jaya I. Shah & Anr., AIR 2004 SC 55

12]            In view of the above discussion and various allegations and counter allegations made by the parties upon each other at the time of arguments as well as in the complaint and replies, we feel that we cannot adjudicate upon the matter under the summary procedure available under the Consumer Protection Act. It will require detailed and extensive evidence to prove each and every transaction as to whether it was in accordance with the statute, rules and bye-laws or not.  OP No.1 has also alleged that the complainant has preferred many other complaint/cases against them in various other Forums/Courts for redressal of her grievance. 

13]            The jurisdiction of The Consumer Protection Act is very limited. It does not allow taking of evidence to ferret out contentious issue of facts and transactions. 

                The Hon’ble Supreme Court of India in Standard Chartered Bank & Ors. vs. Directorate of  Enforcement & Ors, 2005(4) SCC 530, at Para No.61 has held:-

“A number of arguments were addressed by learned counsel as to what is the true function of the court in interpreting a statute.  We would prefer to tread the conventional path that the maxim “judicis est just dicere, non date” best expounds the role of the court.  It is to interpret the law, not to make it.  The court cannot act as a sympathetic caddie who nudges the ball into the hole because the putt missed the hole.  Even a caddie cannot do so without inviting censure and more.  If the legislation falls short of the mark, the court could do nothing more than to declare it to be thus, giving its reasons, so that the legislature may take notice and promptly remedy the situation.  This is precisely what has happened in the present case.”

                We cannot do justice to a case where extensive numerical calculations are involved and thus would not even like to try.

14]            Also the complainant as alleged by the OP’s and admitted  by her agent at the time of argument is a government employee.  The transactions between the parties relate to commercial activity carried out with the sole motive of earning profit.    The contract of service between the complainant and OP No.1 is not exclusively for the purpose of earning livelihood by means of self employment.  It is only an additional occupation by the complainant to get extra earning beyond what she earns in her govt. job.  

15]            In view of the above, without expressing any opinion whatsoever on the merits of the complaint, we deem it appropriate to dismiss the complaint as it is beyond the scope of the Consumer Protection Act. It requires detailed oral as well as documentary evidence, extensive calculations, cross-examinations of witnesses etc. and as such cannot be decided summarily under the Consumer Protection Act.  Accordingly, the present complaint as well as the two connected complaint No.725 of 2009 titled as Om Parkash Vs. The Regional Director, M/s Master Capital Services Ltd. & Ors. and Case No.726 of 2009 titled as Vandana Vs. The Regional Director, M/s Master Capital Services Ltd. & Ors., are dismissed with liberty to the complainant(s) to approach the appropriate Civil Court for redressal of her/their grievance(s). 

16]            Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

06.08.2010                                                             Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                      Sd/-

                                                             (MADHU MUTNEJA)

MEMBER

‘Om’

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Complt.  Case No : 725 of 2009

Date of Institution:   20.05.2009

Date  of Decision :   06.08.2010

Om Parkash, #5729/A, Sector 38(West),Chandigarh – 160 014

……Complainant

V E R S U S

1]       The Regional Director, M/s Master Capital Services Ltd., SCO 22-23, Sector 9-D, Chandigarh.

2]          Mrs.Neelam Sharma, Prop. M/s Nivi Cap, Cabin No.108, SCO No.58-59, First Floor, NISE Building, Sector 17-D, Chandigarh

3]       The Regional Manager, National Stock Exchange of India Ltd., 4^th Floor, Jeevan Vihar Building, Parliament Street, New Delhi – 110 001

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Complainant in person.

Sh.Neeraj Sharma, Adv. for OP No.1 &2.

Sh.Varinder Arora, Adv. for OP No.3.

PER MADHU MUTNEJA, MEMBER

1]             For the reasons stated in our detailed order of the even date, passed in Complaint Case No.724 of 2009– ‘Smt.Kanta Vs. The Regional Director, M/s Master Capital Services Ltd. & Ors.’, this complaint also stands dismissed in terms of that order.  A copy of said order be placed on the record of this file, which shall form part of this order.

2]             Copy of this order be sent to the parties free of charge. The file be consigned.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Complt.  Case No : 726 of 2009

Date of Institution:   20.05.2009

Date  of Decision :   06.08.2010

Vandana, #5729/A, Sector 38(West),Chandigarh – 160 014

……Complainant

V E R S U S

1]       The Regional Director, M/s Master Capital Services Ltd., SCO 22-23, Sector 9-D, Chandigarh.

2]          Mrs.Neelam Sharma, Prop. M/s Nivi Cap, Cabin No.108, SCO No.58-59, First Floor, NISE Building, Sector 17-D, Chandigarh

3]       The Regional Manager, National Stock Exchange of India Ltd., 4^th Floor, Jeevan Vihar Building, Parliament Street, New Delhi – 110 001

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.Om Prakash, Agent for Complainant.

Sh.Neeraj Sharma, Adv. for OP No.1 &2.

Sh.Varinder Arora, Adv. for OP No.3.

PER MADHU MUTNEJA, MEMBER

1]             For the reasons stated in our detailed order of the even date, passed in Complaint Case No.724 of 2009– ‘Smt.Kanta Vs. The Regional Director, M/s Master Capital Services Ltd. & Ors.’, this complaint also stands dismissed in terms of that order.  A copy of said order be placed on the record of this file, which shall form part of this order.

2]             Copy of this order be sent to the parties free of charge. The file be consigned.