DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No  195 of 2015

Date of filing:  03.9.2015                                                                         Date of disposal: 30.9.2015

Complainant (s):         1. Sri Prasanta Ghosh, S/o. Shankar Chandra Ghosh, resident of Kalna Road, Jamtala, Hafi Jullah Berh, Burdwan – 713 101.

                                    2. Smt. Annapurna Ghosh, W/o. Prasanta Ghosh, resident of Kalna Road, Jamtala, Hafi Jullah Berh, Burdwan – 713 101.

-V E R S U S-

Opposite Party:           Sri Brijesh Kumar jaiswal (The Manager), TNS Finance Investment (P) Ltd., Central Market, Tinkonia, PO, PS. & District: Burdwan – 713 101.

Present:        Hon’ble President: Asoke Kumar Mandal.

           Hon’ble Member:  Smt. Silpi Majumder.

Appeared for the Complainants:     Ld. Advocate, Saurav Mondal.

Order No. 04, Dated: 30.9.2015

            This complaint is filed by the complainants u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP.

The fact of the complaint is that they are residing in the district of Burdwan and the OP is a Manager of TNS Finance Investment Pvt. Ltd., a share trading concern of that locality. The complainants are the holder of shares/debentures, which is a movable property and therefore the same can be termed as goods within the meaning of the Sale of Goods Act. The Op being broker is selling and purchasing shares in their own name and also in the name of the consumers like the complainants and there is a contract between the seller and the broker in respect of commission. Therefore the relationship by and between the seller and broker can be termed as service provider because he is working subject to receipt of consideration like commission. The complainants relied upon the representation made by the OP and thereafter cheated and lost their bonus shares and money, which can be termed as unfair trade practice and deficiency in service and for this reason the OP is solely responsible for the pecuniary damage of the complainants. The complainants for the purpose of earning money purchased shares and debentures for their livelihood by means of self- employment. The debenture so earned was credited to the complainants’ DPID Codes and the OP took commission for that purpose. So as per instruction of the OP the complainants paid money through cash as well as cheque on different dates to the OP against proper receipt. The OP had dealt with the complainants’ share through his own ‘D-Mat’ account. The complainants on several occasions approached before the OP for transferring their respective purchased shares through the OP in their above-mentioned respective ‘D-Mat’ account but the OPs did not pay any heed to his request and assured them that as and when required the same will be sent or transferred in the ‘D-Mat’ account of the complainants and there is nothing to be worried. The complainants believed such assurance as investors. Since 2003-2009 the transaction procedure was going on regarding purchase and sell of different company’s shares through the OP but during that period the complainants were the actual owners as well as holders of the schedule mentioned equity shares of different companies. Unfortunately, all on a sudden in the year 2010 the OP approached before the complainants stating the weak position of the share market and advised them not to deal with their respective schedule mentioned shares through the OP due to such precarious situation. If the OP thought better to trade with the schedule mentioned shares belonging to the complainants, the OP will inform the complainants for selling and purchasing the respective shares and on good faith the complainants put trust on the OP waiting for a long period. Unfortunately, on every occasion the complainants requested the OP to transfer their final deposited schedule mentioned equity shares in the respective ‘D-Mat’ account, otherwise the complainants are depriving from the actual dividend of the different company’s share as a shareholder from the very beginning, but to no effect. According to the complainants this is not only an unfair trade practice of the OP but also deficiency in service on his part. The OPs used to deprive the complainants in respect of making payment of actual dividend amount and bonus shares and for this reason the complainants had to face huge monetary loss from their trading business. The complainants thought that the OP is getting profit through the debentures lying with them as the price of the share market is hiking and they did not pay any heed to their request for transfer since five years. In this manner the OP had withheld the shares of the complainants amounting to Rs. 12,00,000=00 approximately arbitrarily and illegally and even today the same are still lying within the custody of the OP. Such retention of the complainants’ share by the OP is illegal, malafide and amounts illegal trade as well as deficiency in service. The complainants approached before the OP on several times requesting to allow them for trading the shares of them lying within the custody of the Ops but OP did not accede to their request. Be it mentioned that the livelihoods of the complainants solely depend on such trading in shares and therefore they were deprived for getting benefit due to unfair trade practice of the OP. For such wrongful act of the Op the complainants issued legal notices through the ld. Advocate but no fruitful result had been yielded. The OP did not bother to return back the scheduled shares or transfer in the ‘D-Mat’ account of the complainants and moreover did not make any reply with proper reason in respect of the legal notice. So finding no other alternative the complainants have approached before this ld. Forum by filing this complaint praying for direction upon he OP to return back the schedule mentioned equity shares to them lying within the custody of the OP, to return back the dividend of the schedule mentioned equity shares amounting to Rs. 1,05,000=00 lying in the custody of the OP, compensation to the tune of Rs. 12,00,000=00 due to wrongful detention of the shares, to pay damages for mental suffering and agony amounting to Rs. 2,00,000=00 and litigation cost of Rs. 10,000=00.

This complaint was filed by the complainants on 03.9.2015 and accordingly on 21.9.2015 the complaint was fixed for its admission hearing. During hearing the ld. Counsel for the complainants was present by filing hazira. It is evident from the record that the allegation of the complainants is that the OP being a broker of shares and debentures had kept the shares and debentures of different companies of the complainants within his custody since five years. Not only that the OP used to transact the scheduled shares and debentures through his ‘D-Mat’ account. In this respect several requests were made by the complainants for transferring those items in the ‘D-Mat’ account of the complainants but to no effect. It is stated by the complainants that since 2003-2009 the transaction procedure was going on regarding purchase and sell of different company’s shares through the OP, though the complainants are the actual owners and holders of the said items. It is argued by the ld. Counsel for the complainants during hearing that the questioned shares and debentures are still lying within the custody of the OP and the same are in running condition. From the documents filed by the complainants it is evident that till May 2008 the dividend amount were received by the complainants but thereafter no dividend amount was received by them and only on 31.3.2009 some dividend were received by the complainants in cash by the OP. So as after May 2008 no dividend amount was credited in the account and the complainants did not get the dividend amount from the OP, hence question should be cropped up in the mind of the complainants as to why they were debarred from getting dividend through the account in respect of the shares and debentures. Admittedly, some written correspondences were made by the complainants and the same was received by the OP on 27.7.2014, 11.5.2014 etc. But there is no averment as to why the complainants kept themselves silent over the matter since 2009-2014. No explanation has been given for long five years. According to the complainants the cause of action of this complaint arose on and from 27.7.2014 because the OP had received the legal notice with acknowledgement on 28.7.2015. In this respect we are to say that written correspondences cannot save the limitation and there are plethoras of judgments passed by the upper Courts/Forums. No explanation is forthcoming on behalf of the complainants for long five years. In the C.P. Act there is a specific Section, namely, Section 24A of the C.P. Act, 1986 wherein in the sub-Section (1) of the said section it has been stated that the limitation period of a complaint wherein it is stated that the District Forum, State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the case in hand the complainants got knowledge in the year 2009 and having regard to the above-mentioned section it can safely be said that cause of action arose in the year 2009 but this complaint is filed by the complainants in the year 2015. It was the obligation of the complainants to prefer this complaint within 2011. So there is a delay of long six years in preferring of this complaint. Moreover, no explanation has been made out by the complainants for long six years delay.

The complainants has filed some Rulings in support of his argument, namely, 1993 (2) CPR 463 passed by the Hon’ble Gujarat SCDRC, 1992 (1) CPR 222 passed by the Hon’ble Gujarat SCDRC and 2000 (2) CPC (NC) 275 passed by Hon’ble NCDRC. We have carefully perused the said judgments an and in our opinion the said judgments are not applicable in the case in hand because the said judgments were passed on the factual aspects of the respective complaints but as in the case in hand we are to adjudicate at the very outset as to whether the complaint is filed within the statutory period of limitation or not and adjudicating this point it is noticed by us that as this complaint is not filed by the complainants within two years from the date of cause of action, hence we are not inclined to explain the judgments as relied on by the complainants.

In this respect we can refer to a very recent judgment passed by the Hon’ble National Commission reported in 2015 (2) CPR 658 (NC) wherein it has been held that there must be some cause which can be termed as sufficient cause for purpose of delay condonation. The said judgment was passed by the Hon’ble National Commission based on the view as taken by the Hon’ble Apex Court in the cases of RB Ramlingam Vs. RB Vhuvaneshwari reported in 2014 (4) CPR 785 (SC), Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd & Anr reported in 2013 (3) CPR 622 (SC), Ramlal and Ors. Vs. Rewa Coal Fields Ltd. reported in AIR 1962 SC (361), Bikram Dass Vs. Financial Commissioner and Ors. reported in AIR 1977 SC (1221) and Anshul Aggarwal Vs. New Okhla Industrial Development Authority reported in Vol-IV (2011) CPJ (63) SC. Therefore having regard to the settled legal proposition as settled by the Hon’ble Apex Court as well as Hon’ble National Commission we are of the view as no explanation has been made out by the complainants in respect of delay for long six years in the complaint and moreover as no separate petition have been submitted by the complainants praying for condonation of delay we are not in a position to admit the complaint.

Going by the foregoing discussion hence it is,

O r d e r e d

 that the complaint being no. 195/2015 is hereby dismissed without admitting the same  being barred by limitation.

Let a plain copy of this order be supplied to the complainants free of cost as per provisions of law.

                     (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                    President       

                                                                                                           DCDRF, Burdwan

                     (Silpi Majumder)

                            Member

                    DCDRF, Burdwan

                                                                                (Silpi Majumder)

                                                                                      Member   

                                                                               DCDRF, Burdwan