PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2011
Filed on :09/12/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.209/2008
Between
Mr. T.S.Radhakrishnan, : Complainant
S/o. late Sankaran Nair, (By Adv. George Cherian
Thudinayil house, Karippaparambil, H.B. 48,
Kaipattoor (P.O) Panampilly Nagar, Kochi
Arakunnam Via 682 313. Pin-682 036)
And
1. V. Surendran, : Opposite parties
S/o. late V. Kannan, (1st O.P. absent)
Valiaparambil Veedu,
Manalodi, Nilambur,
Malappuram-678 329.
2. M/s. JRG Securities Ltd., (2nd O.P. by Adv. Joseph Sebastian,
JRG House, Ashoka road, Purayidam, IInd floor, Power
Kaloor, Ernakulam-682 017. house road, Kochi-18)
rep. by Managing Director.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is a retired Head Master from Government U.P. School, Parampa, Malappuram District. First opposite party was the franchisee of the 2nd opposite party. The 2nd opposite party is a limited company. On the basis of the complainants application through the 1st opposite party. The 2nd opposite party informed the complainant his Account No. and ID Number. Accordingly the complainant has demated his shares and thus it comes to the complainant’s account with the opposite parties. In September 2007 there were certain complaints that the 1st opposite party colluding with the officials of the 2nd opposite party has adopted unfair trade practice and committed deficiency in service. In September 2007 the shares of his 8 companies have not come to the account of the complainant for the deficiency of the opposite party. On 12-09-2007 the officials of the opposite party agreed to transfer the shares to the account before 13-09-2007. In the mean time about 40 clients of the opposite party formed a Protection Council and on mediation the residential property of the first opposite party was transferred in the name of the Convener of the protection council Thereafter the 2nd opposite party agreed to discharge the entire liabilities of its 40 clients and accordingly the property was transferred in favour of one of the higher officials of the 2nd opposite party . The 2nd opposite party compelled the complainant to execute an undertaking in stamp paper for an amicable settlement of the loss incurred by the complainant. The complainant refused to sign the same. Thus the complainant is before us seeking the following reliefs against the opposite parties.
i. to pay Rs. 35,750/- with 12% interest from 17/01/2008 till payment.
ii. Credit in the account of the complainant with the 2nd opposite party the shares of 8 companies along with the accrued bonous and shares and dividends.
iii. To pay Rs. 1 lakh towards compensation.
2. The version of the 2nd opposite party.
The complaint is not maintainable in this Forum, since the transaction between the parties are purely commercial in nature. The 1st opposite party is not the franchisee of the 2nd opposite party and the application was submitted by the complainant directly to the 2nd opposite party. The complainant has never opened a trading account with the 2nd opposite party and he had only a depository account which is intended for keeping shares in electronic form. The complainant never paid any amount to the 2nd opposite party for the purpose of buying and selling shares. The 2nd opposite party is not responsible for the transactions if any the complainant had done with the 1st opposite party. The officials of the 2nd opposite party did not collude with the 1st opposite party to defraud 40 clients. The 2nd opposite party never compelled to execute any agreement as averred by the complainant. There is neither unfair trade practice nor deficiency in service on the part of the 2nd opposite party. The 2nd opposite party requests to dismiss the complaint.
3. Despite service of notice from this forum the 1st opposite party opted not to contest the case for his own reasons. The complainant was examined as PW1 and Exts. A1 to A9 were marked. The witness for the opposite party was examined as DW1. Exts. B1 to B3 were marked on their side. The counsel for both the parties filed argument notes. Heard the respective counsel.
4. The points that arose for consideration are
i. Whether the complaint is maintainable?
ii. Whether the complainant is entitled to get a sum of Rs.
35,750/- with interest from the opposite parties?
iii. Whether the complainant is entitled to get the shares of 8
companies together with accrued bonus shares and
dividends?
iv. Whether the opposite parties are liable to pay compensation
of Rs. 1,00,000/- to the complainant?
5.Point No. i. According to the 2nd opposite party the disputed transaction between the parties are commercial in nature and the complaint is not maintainable in this Forum. The learned counsel for the 2nd opposite party relied on the decision rendered by the Hon’ble National Consumer Disputes Redressal Commission in Amarnath Ramnath Javle Vs. Karvy Stock Broking Ltd & Anr (R.P.No. 3915 of 2010) which is as follows:
“Heard the petitioner who is present in person. The petitioner had already availed the remedy of arbitration and the Fora below have held that in view of the judgment of the Apex Court in Haryana Deveopment Authority & Anr. Vs. Satish Hans (2009) 7 SCC page 282, the complaint cannot be entertained by fora. In addition we find that the petitioner is trading in shares which is for commercial purpose and consumer complaint for commercial purpose cannot be entertained. We do not find any merit in this revision and the revision is, accordingly dismissed, with no order as to cost.”
However the Hon’ble National commission in Unit Trust of India Vs. Sri. Sankar Das (National Commission and Supreme Court on Consumer Cases 1986-2005 Part VI page 9306 FA No. 465/1995 decided on 13-02-2002) held in Para 4 reads as follows:
“Aggrieved by the order of the State Commission, appellant has come before us. It was submitted by Mr. Ghosh learned counsel for the appellant that since complainant was only prospective allottee of master shares and moreover he wanted to resell the master shares and moreover he wanted to resell the master shares, he could not be termed as a consumer. His further submission was that the complaint was barred by limitation as the allotment of shares closed on 29-05-1989 to the knowledge of all concerned. We are unable to accept any of these three contentions. It was not the case of new allotment of shares but that of right shares to which complainant was entitled to on the strength of his holding original shares, he would certainly be a consumer and the dispute raised would be consumer dispute. The objection that the respondent was to resell the shares would appear to be irrelevant as there is nothing on the record to support this contention. Even otherwise it is not the case of the appellant that complainant was indulged in sale and purchase of shares. Complainant came to know about non-allotment of shares to him by letter of the appellant on 9-7-1991 from which date he would have a cause of action to file the complaint. It was within the limitation.”
The latter decision has been rendered by the Hon’ble National Consumer Disputes Redressal Commission consisting of 4 members which overruled the decision in the Unit Trust of Inida Vs. Sri. Shakar Das (Supra). In view of the above authority we are of the opinion that this complaint is maintainable in this Forum.
6. Point No. iii. Ext. A1 dated 23-01-2003 goes to show that the complainant has opened an account with the 2nd opposite party and the client ID No. 10052242 and DP 1D are IN 301895. Ext. A2 receipt goes to show that the complainant has paid a sum of Rs. 34,000/- to the 1st opposite party. Ext. A3 is the list of shares allotted to the complainant by the 1st opposite party.
7. According to the 2nd opposite party they have absolutely no connection with the 1st opposite party. However DW1 the witness for the 2nd opposite party deposed that there was complaint from 40 clients to the effect that the Nilampur franchisee cheated and defrauded the customers. He further stated that the landed property of the mother of the 1st opposite party was transferred in favour of the leader of the action council and subsequently it was transferred in favour of the territory manager of the 2nd opposite party. So the contention of the 2nd opposite party that they have no connection with the 1st opposite party is unsustainable especially so because Ext. A6 agreement would show that they have settled the disputes between their clients and the 1st opposite party. The schedule to Ext. A6 agreement goes to show that the complainant is entitled to get Rs. 2 lakhs from the 2nd opposite party. The complainant is entitled to get the said amount mentioned in the schedule appended to Ext. A6 agreement which primarly the liability of the 1st opposite party. The complainant has failed to establish the genuineness of Ext. A3 list of shares, so we are only to direct the 2nd opposite party to pay Rs. 2 lakhs as per the schedule in Ext. A6.
8. Point No. iv. Since the primary grievance of the complainant having been met adequately no order as to compensation.
9. In the result we partly allow the complainant and direct that the 2nd opposite party shall pay a sum of Rs. 2,00,000/- to the complainant together with interest at the rate of 9% p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of December 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : E-mail dated 23-01-2003
A2 : Receipt dt. 04/08/2003
A3 : Copy of statement dt. 30/09/2007
A4 : Copy of demand pay
dt. 17-01-2008
A5 : Amicable settlement
dt. 24-01-2008
A6 : Copy of amicable settlement
dt. 18/01/2008
A7 : Copy of CD Premium dt. 17/01/08
A8 : Copy of agreement
dt. 22-05-2008
A9 : Agreement dt. 25/05/2008
Opposite party’s Exhibits :
B1 : Copy of bank statement
B2 : Copy of bank statement
B3 : Copy of DLF Limited-Public
issue-R
Depositions:
PW1 : T.S. Radhakrishnan
DW1 : Sanjayan S
