State Consumer Disputes Redressal Commission
Satyendra Trehan vs Smc Comtrade Ltd. on 16 November, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
First Appeal No. FA/331/2014
(Arisen out of Order Dated 07/01/2014 in Case No. CC/230/2012 of District Kolkata-II)
1. Satyendra Trehan
South City Tower 2, Flat 28L, 375, Prince Anwar Shah
Road, Kolkata - 700 068. ...........Appellant(s)
Versus
1. SMC Comtrade Ltd.
18, Rabindra Sarani, Poddar Court, 4th Floor, Gate 4,
Kolkata - 700 001, P.S. Hare Street.
2. SMC Comtrade Ltd.
11/6B Shanti Chamber, Pusa Road, New Delhi - 110 005. ...........Respondent(s)
BEFORE
HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER
HON'BLE MRS. MRIDULA ROY MEMBER
For the Mr. Abhik Das Mrs. Koyeli Mukhopadhyay, Advocate
Appellant:
For the
Respondent:
ORDER
Date of Hearing the 3rd Day of November, 2015 Date of Judgment Monday the 16th Day of November, 2015 JUDGMENT The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') is at the instance of the Complainant to impeach the Judgment/Final Order dated 07.01.2014 passed by the Ld. Kolkata District Consumer Disputes Redressal Commission, Unit-II (For short, Ld.KDCDRF) in Consumer Complaint No.230 of 2012.
The Appellant herein being Complainant initiated the Consumer Complaint under Section 12 of the Act alleging that some times in early 2011 he was approached by the Opposite Parties/Respondents to open a Commodity and Foreign Exchange Trading Account with them as it will give an opportunity to trade in Commodities like Oil, Gold, Silver, Zinc and Copper etc. as well as tradable foreign exchange. Complainant being lured with the new opportunity agreed to open a trading account with the Opposite Party No.1 being client ID No.NMV0422. It has been stated that the Complainant was approached by one Sri Subrata Tarafdar for augmentation of income and being persuaded by the sweet talks and rosy picture the Complainant had principally agreed to start trading in Commodity Market through Opposite Party. On the very first day of opening of account numerous trades were done by the Opposite Party without any instruction from his end for which he vehemently opposed to such trades and Opposite Party by admitting their responsibility refund money with regard to the loss incurred on the opening day. Thereafter, the Complainant made a payment of Rs.1,50,000/- on several instalments by cheques and before leaving for Canada he instructed the Opposite Parties to trade the materials in which he will give consent for authorization but the Opposite Parties have made several trades causing serious loss leaving a balance of only Rs.3,172.66 P. It is alleged by the Complainant that instructions for trades are generally given by e- mails/written instruction to the Operator but the Opposite Parties have failed to provide the basis of the trade it has executed on behalf of the Complainant. Hence, the Consumer Complaint with the following prayers, viz. - (a) to direct the Opposite Party Nos.1&2 to produce the instructions upon which it has traded on behalf of the Complainant; (b) to direct the Opposite Party Nos.1&2 to refund of Rs.1,50,000/- which he has lost for unauthorized trade; (c) for a direction upon Opposite Parties to pay Rs.1,00,000/- for harassment; and (d) litigation costs of Rs.25,000/- etc. The Opposite Parties by filing a Written Version has disputed the allegation by stating that after completion of all the formalities the Complainant opened his trading account and provided all documents as required to be registered as client for dealing in Commodities Market. Accordingly, Unique Client ID being No.NMV0422 was allotted to him and the same was uploaded with the exchange too. It has been specifically stated that the Complainant was associated with them with the intention to deal in Commodities to earn profit but the said profit or loss is beyond their control and is not in hands of trading member/stock broker rather it depends on the volatility of the market. It has been specifically alleged that the Complaint issued cheques against the margin call and transaction full knowledge and conscience and transaction being commercial in nature do not fall under the purview of the Act.
Relying upon the materials on record and having heard the Ld. Advocates appearing for the respective Parties, the Ld. KDCDRF has observed that the Complainant is not a Consumer and his trading is meant for commercial purpose and as such, dismissed the same on contest without any order as to cost. Being aggrieved and dissatisfied with the said Order, instant appeal has been preferred.
We have scrutinized the materials on record. We have also heard the Ld. Advocates for the Appellant. It would be worthwhile to record that the Opposite Parties contested the case before the Ld. KDCDRF but at the time of hearing of appeal the Opposite Parties being Respondents absented themselves from taking any steps.
Having heard the Ld. Advocate for the Appellant and on going through the materials on record it emerges that the Appellant herein who is at present 74 years old, sometimes in the year of 2011 has agreed to open a trading account with S.M.C. Comtrade Ltd. (Opposite Party No.1) for augmentation of his income through trading commodities like, oil, silver, gold, zinc and copper etc. and obtained a trading account with Opposite Party No.1 being identification No.NMV0422. From the averment of Petition of Complaint it reveals that on the date of opening of the account, numerous trading were done by the Opposite Parties without obtaining his consent or authorization. When he vehemently opposed, the Opposite Parties by admitting their responsibility refund the amount with regard to the loss incurred by the Complainant on the opening day.
In spite of the same, the Complainant has thereafter made payment of Rs.1,50,000/- to the Opposite Parties by way of several installment by cheques. Be it mentioned here that the Complainant executed first trading of commodity on 23.05.2011. The materials on record indicate that on 19.05.2011 the Complainant opened his account by depositing Rs.11,000/-. Thereafter, the Complainant used that account day to day for trading for profit. On several dates in between 19.05.2011 and 07.07.2011 the Complainant deposited the figures like Rs.11,000/-, Rs.12,000/-, Rs.8050/-, Rs.10,000/-, Rs.20,000/-, Rs.30,000/-, Rs.25,000/- and Rs.25,000/- respectively. The facts and circumstances and materials on record make it abundantly clear that the Complainant invested money for the period from 19.05.2011 to 07.07.2011 only for trading and for profit. It also comes to surface that it was completely commercial trade.
However, when the record was taken up for hearing Ld. Advocate appearing for the Appellant referring a decision of National Consumer Disputes Redressal Commission, New Delhi dated 02.04.2012 in First Appeal No.543 of 2011 (M/s. India Bulls Financial Services Ltd. - Vs. - Varghese S. Karia and Another) has submitted that the Complainant is a retired employee being a Senior Person invested money to earn his livelihood after retirement and as such, the investment must not be considered for 'commercial purpose' and therefore, the impugned Judgment/Final Order requires interference. To fortify his contention Ld. Advocate has drawn our attention to paragraph 12 of the referred decision which is noted below - 'Even otherwise as per respondents' case, respondent no.1 is a retired employee of a Public Limited Company and respondent no.2 is his wife and they invested their hard earned money with appellants for purchasing and trading shares. Thus, it can reasonably be said that purpose of investing money in shares is not for commercial gain but to earn their livelihood after their retirement. Thus, respondents are covered within the meaning of 'consumer' as defined under the Consumer Protection Act, 1986. Accordingly, decision of Delhi Transport Corporation (supra) is not applicable to the facts of the present case.' Sri Abhik Das, Ld. Advocate for the Appellant has also submitted that as per MCX circular there should have been voice recording of the Complainant to show that there was an instruction or authorization by the Complainant for investment of the amount in question in share trading.
The referred decision itself indicate that the benefit of a Consumer as defined in Section 2(1)(d) of the Act cannot be given unless it is proved that the Complainant has invested the money in shares is not for commercial gain but to earn livelihood after his retirement. The averment of the Petition of Complaint does not show that the Complainant being a retired person invested the retirement benefits in trading business to earn his livelihood. On the contrary, the statement of Petition of complaint itself indicates that the Complainant opens such trading account with the Opposite Party No.1 for augmentation of his income by way of investment through Opposite Parties in commodities like oil, gold, silver, zinc and copper etc. The warning bell did not make the Complainant alert because according to Complainant himself on the first day of opening of account the Opposite Party No.1 has made numerous trading without his consent for which he vehemently opposed and as such a refund was made in favour of the Complainant with regard to the loss of the opening day. In spite of that the Complainant invested an amount of Rs.1,50,000/- for the purpose of said trading business.
It is well settled by law that a person purchasing goods for commercial purpose is not a Consumer within the meaning of Section 2(1)(d) of the Act.
The expression 'Consumer' has been defined in Section 2(1)(d) of the Act. Sub-section (ii) of Section 2(1)(d) which is material is reproduced below;
'Consumer' means any person who -
(i) ...................................... (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 purpose 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'.
The facts and circumstances and materials on record clearly indicate that the Complainant invested the amount of Rs.1,50,000/- on diverse dates in favour of Opposite Party No.1 to generate profit. In such a situation, when profit is main aim of the commercial purpose and the Complainant invested the money for augmentation of his income certainly he would be excluded from the coverage of the Consumer Protection Act, 1986.
Therefore, considering the submission of the Ld. Advocate for the Appellant and on going through the materials on record including impugned Judgment we do not find any loopholes in the impugned Order of the Ld. KDCDRF. As a result, the appeal is liable to be dismissed. However, considering the facts and circumstances, we do not make any order as to costs.
For the reasons aforesaid, the appeal stands dismissed.
The Judgment/Final Order dated 07.01.2014 passed by the Ld. Kolkata Disputes Consumer Disputes Redressal Forum, Unit-II in Consumer Complaint No.230 of 2012 is hereby affirmed.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER