M.C. Rana Vs. Vijay Kumar - Court Judgment

Chander Shekhar Sharma, Presiding Member:

This appeal is directed against the order of District Forum, Mandi, passed in Complaint Case No.227/2007, dated 29.9.2007. In the present case the complaint was dismissed by holding that there is no merit in the complaint since it was held that this is not a consumer dispute. Parties are hereinafter being referred to as per their status in the complaint.

Facts of the case within the narrow compass are that the opposite party who had been dealing in sale and purchase of shares under the name and style of Sidhartha Capital Investment at Mandi and the complainant had paid a sum of Rs.38.921/- to the opposite party on 15.1.2004 through cheque of Punjab National Bank for the purchase of shares in his name and the opposite party was also requested to transfer the share in the name of the complainant. As per allegations made in the complaint, it is alleged that instead of purchasing the shares and transferring them in his favour, the opposite party had pocketed his funds. When the complainant had asked the opposite party about his funds, the latter had silenced him. The complainant had been informed that the share market had not been in full swing. The opposite party was to purchase the shares for the complainant at appropriate time. The opposite party did not purchase the shares compelling the complainant to serve him with notice dated 11.1.2007 and 17.7.2007. The opposite party had controverted the notice of the complainant. The opposite party had stated having purchased the shares of Global Trust Bank in favour of the complainant. The complainant says that the opposite party did not purchase the shares. In case, the opposite party had purchased the shares, the same were required to be transferred in favour of the complainant. Hence deficiency of service had been claimed on the part of opposite parties. In this background, present complaint under Section 12 of the Consumer Protection Act, 1986 was filed, wherein prayer had been made for the recovery of Rs.38,921/- with interest @ 18% per annum and litigation cost has also been claimed to the tune of Rs.5,000/-.

This complaint was resisted and contested by the opposite party on the ground of maintainability, estoppel and non joinder of parties and it was also stated that the complainant was not a consumer under the Consumer Protection Act, 1986 and the dispute is within the exclusive jurisdiction of SEBI and on merit, opposite party had denied having paid a sum of Rs.38,921/- by the complainant through cheque, however it has been stated that Sidhartha Capital Investment had been a partnership firm duly registered with the Registrar of Firms and had been carrying business of sale and purchase of shares and opposite party had not been dealing in sale and purchase of shares in his individual/personal capacity in the firm to whom the complainant had paid an amount of Rs,.38,921/- through cheque had gone in liquidation and the aforesaid firm had purchased 1,000 shares of Global Trust Bank for the complainant and the complainant had been duly informed of the purchase of shares and as such the complainant has leveled false allegations of pocketing of funds against the opposite party. It was also submitted that the complainant had served two notices to the opposite party, dated 1.2.2007 and 17.7.2007 and in the first notice the complainant had claimed the purchase of 1,000 share of Global Trust Bank in his favour by the opposite party and in the second notice, dated 17.7.2007 the complainant had made false allegations of pocketing of funds against them and it was also stated that the premises of Sidhartha Capital Investment was in the building where the complainant had been working and the Global Trust Bank had run into bankruptcy and the value of the shares had come down to a very negligible amount. It was also alleged that the complainant was required to put his shares in his account so that he could be paid the value thereof and the complainant had failed to do so. As such, unredeemed shares of Global Trust Bank had been purchased by the Oriental Bank of Commerce and thousands of thousands of investors had lost funds when Global Trust Bank had turned bankrupt and cases of Parminder Kaur and Vijay Kumar have also been cited as instances who also lost their funds. Hence, it was alleged that there was no deficiency of service on the part of the opposite party and complaint has filed a false complaint under Section 12 of the Consumer Protection Act, 1986 against them and complainant is not entitled to any relief.

We have heard learned Counsel for the parties and have gone through the record of the case minutely. Mr. Abhishek Lakhanpal, learned Counsel for appellant argued that the order of the Forum below is not legally sustainable and the complainant does fall within the definition of a ‘consumer as defined under Section 2(i) (d) of the Consumer Protection Act and finding of the Forum below to the effect that the opposite party had not duped him is not legally sustainable.

Mr. Lokesh Kapoor, learned Counsel for the respondent had supported the order of the Forum below. As per him, the complainant does not fall within the definition of consumer under Section 2(i)(d) of the Consumer Protection Act, 1986.

After hearing the learned Counsel for the parties and going through the record of the case we are of the considered view that there is no merit in the present appeal and order of the Forum below does not suffer from any infirmity. Forum below had rightly concluded that the complainant in the present case does not fall within the definition of consumer under Section 2(i)(d) of the Consumer Protection Act, 1986, since the definition of a ‘consumer as given under Section 2(i) (d) of the Consumer Protection Act clearly exclude the person who avails of such services for any commercial purpose. In the present case the purchasing of shares is on large scale for the purpose of making profit as he had invested a sum of Rs.38,921/- in the share market with a view to earn profit, as such he has indulged in speculative trade and as such he cannot be treated as consumer under the Consumer Protection Act, 1986 since they were purchased for commercial purpose and there is no averment in the complaint that they were purchased for earning his livelihood by the complainant.

It is also evident from the evidence on record that the complainant in the first notice served to the opposite party, which is dated 11.1.2007, he had admitted the purchase of 1,000 shares of Global Trust Bank in his favour by the opposite party and in the second notice, dated 17.7.2007 complainant had made allegations of pocketing of his funds against the opposite party which is quite contrary stand and this fact is also evident from the record that the complainant remained silent for about 3 years and even the complainant had not even remotely stated that prior to 15.1.2004 and thereafter shares purchased by him used to be transferred in his favour. Forum below had passed a reasoned order which is clearly evident from paragraphs 6 and 7 of the order passed by the Forum below. Our view is supported by the decision of the State Commission, Chhattisgarh, Raipur, given in the case of Anand Rathi Securities Ltd. and others Versus Smt. Rajshri Verma and another, 2010 CTJ 1194 (CP) (SCDRC), wherein it was held that it is a matter of common knowledge that share trading is a commercial activity and services availed for that purpose would obviously be considered to have been availed for commercial purpose.

No other point was urged.

In view of the aforesaid discussion and facts and circumstances of the case , there is no merit in the present appeal and as such it is dismissed. No order as to costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Copy of this order be sent to the parties free of cost as per rules.