Order No. 27 Dt. 11.01.2012
Complainant’s grievance is that relying on the lucrative offer and the assurance of good return by the Opposite Parties, he submitted a draft of `49,000/- at their Malda Branch to open a demat account in November, 2006 for trading. The opposite parties obtained signatures of the complainant in some papers without supplying the copies thereof. He had no opportunity to go through those documents. O.P. Nos. 1 and 2 received the demand draft at the Malda Branch. The transactions with Parasram Holdings were done through the complainant’s S.B. Account No. 5224 of the Indian Overseas Bank, Malda Branch. O.P. No.1 used his email ID for the complainant and signed along with O.P. No.2 as a witness to win confidence of the complainant. The opposite parties sent Client Master List bearing the date 14.12.2006. At the time of opening the demat account the complainant had instructed orally the opposite parties not to operate his account for trading without his instruction. Ignoring the said instruction and without consent of the complainant, the opposite parties, in their own interest to maximize brokerage, continued to trade from the bank account of the complainant according to their sweet will and siphoned in the process about `7,80,000 from his account and thereby caused him suffer heavy loss and exhaustion of his balance. Complainant lodged written complaint with the opposite parties on 26.10.2008, 14.11.2008 and 29.12.2008 but they remained indifferent. Finding no alternative the complainant sent a complaint to National Stock Exchange India Ltd. against the opposite parties on 09.07.2009 but to no effect. Deficiency in service on the part of the opposite parties and their sinister machination to usurp wealth of the complainant by unauthorized trading led to the pecuniary loss and mental agony of the complainant, hence, this case.
Opposite party No. 1 has contested the case by filing a written version. Challenging the maintainability of the case on various technical grounds and denying the material allegations of the complainant the opposite party has contended that he was just an employee of Parasram and not involved in any monitory transaction of the firm. He used to look after I.T. related work of the firm. So he is not liable for any malfeasance done by the complainant. The complainant has implicated him in this case to achieve his sinister goal. He has prayed for dismissal of the case.
Opposite party No. 2 has also contested the case by filing a written version. He has also challenged the maintainability of the case on various technical grounds and denied the material allegations of the complainant as embodied in the complaint. His stand is that he was just an employee of Parasram and not involved in any monitory transaction of the firm and used to look after I.T. related work of the firm. Hence, he is in no way liable for any malfeasance done by the complainant. He has also prayed for dismissal of the case.
Opposite party No. 4, Director, Parasram Holding Pvt. Ltd., Delhi has contested the case by filing a written version through Prabodh, Gupta, Vice President of Parasram Holding Pvt. Ltd. an authorized signatory on behalf of O.P. No.4. Challenging the maintainability of the case and the status of the complainant as a ‘Consumer’ within the meaning of Sec 12 of the C.P. Act, 1986 as amended the O.P. has contended that the complainant entered into a business agreement with O.P. No. 4 for trading in share and he did business of buying and selling of shares to make speculative gains. Citing the decision of the Hon’ble Supreme Court in the case of Morgan & Stanley it was added that a company do not trade in share, floating shares in the market is to gather capital for business, therefore, by purchasing a share of a company the purchaser does not become a consumer by any stretch of imagination. The complaint deliberately suppressed the agreement and tried to mislead the Forum by making false statement to the extent that he was made to sign various documents forcefully by the opposite parties. Such allegation amounts to criminal act on the part of the O.Ps which the Forum should not adjudicate with regard to the contentions of paragraph nos. 1 to 3 and 18. It has been stated as per the agreement, disputes, if any, between the parties are subject to the jurisdiction of the Courts in Delhi. With regard to Paragraph No. 15 it has been stated that this complaint is barred by the principles of res judicata. The National Stock Exchange India Ltd. adjudicated the self-same complaint lodged by the complainant and it was established therein that trading was done with the consent of the complainant. The stock exchange further directed to divulge various specific information and documents for further adjudication of the matter as reflected from the Stock Exchange Letter dt. 07.01.2010. The complainant suppressed the said letter to avoid exposure of the frivolity of his complaint. Dismissal of the case with exemplary cost has been prayed for.
Complainant, Kshitish Chandra Ghosh went to trial by submitting evidence-in-chief on affidavit for himself as PW-1 and relied on some documents which have been marked Exbts. 1 to 9.
Opposite party Nos. 1 and 2 and 4 who contested the case, did not adduce evidence for themselves and relied on the cross-examination of PW-1.
Pleadings of the parties demand decision on the following issues:-
- Whether the case maintainable;
- Whether there has been any deficiency in service as alleged and
- Whether the complainant entitled to get the relief / reliefs as prayed for?
::DECISION WITH REASONS::
Issue Nos. 1 and 2
The above two issues are found closely related. They are taken up together for convenience of discussion.
This is a case of unauthorized trading in shares. Unshaken Evidence of PW-1, is that Parasram Holdings opened a Branch at Station Road and Utpal Basak and Ashim Risi used to run that office. Ext. -8 is a list of branch network of Sri Parasram Holdings Pvt. Ltd. bearing the name of Malda Town. The address of O.P. No.1 Utpal Basak and O.P. No.2 Ashim Risi bear the addresses under English Bazar P.S., P.O. & Dist Malda. Thus, it is established that Parasram Holdings have a branch on Station Road Malda Town, wherefrom the business of the the business of the firm would be carried on by O.P. Nos. 1 and 2. It is also in the evidence of PW-1 that on the representation of O.P. Nos. 1 and 2 he opened a demat account at their branch by paying a draft of `49,000/- and he was given a Client Master List (Ext.-5). It is also in the evidence that he instructed the office bearers orally not to operate the account without his approval but they ignored and siphoned out about` 7,80,000/- from his account in high frequency trading to increase their brokerage. He protested against such unauthorized trading by letters dt. 26.10.2008, 14.11.2008 and 29.12.2008 but the opposite parties remained silent. The complainant then wrote to the National Stock Exchange of India on 09.07.2009 stating his grievance but no positive reply. Then he brought this case.
Opposite Party Nos. 1, 2 and 4 cross-examined PW-1 separately but failed to make any capital out of it. Evidence of the complainant on materials point remained unaffected.
Complainant’s case is found to have been brought home successfully. The allegation of deficiency in service against the opposite parties is found established.There being no adverse material on maintainability of the case and the principal allegation of unauthorized diversion of funds from the demat account of the complainant having been established, both the issues are answered in favour of the complainant.
Issue No.3
In tune with the foregoing findings, the complainant is entitled to an award of refund of ` 8,29,000/- and interest accrued thereon @ 9% from the date hereof till recovery.
Complainant is also entitled to get an award of litigation cost of Rs. 2000/-
Issue is answered in favour of the complainant thus.
Complaint succeeds in part.
Proper fee paid.
Hence, ordered
that Malda D.F. Case No.25/2010 is allowed in part on contest against the opposite parties.
The complainant do get an award of `8,29,000/-towards the refund of the deposited amount and `2000/- towards litigation cost, totalling `8,31,000/-(Rupees Eight Lac Thirty One Thousand Only) against O.P. Nos. 1,2 and 4 who are individually and collectively liable to satisfy the award within 30 days from the date hereof, in default, they will be liable to pay interest @ 9% on the entire awarded amount till recovery.
A copy of this order be given to each of the parties free of cost.
