State Consumer Disputes Redressal Commission
Smt.Naina D.Soni vs Smt.Madhavi Ben Vora on 14 September, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/318
Instituted on : 18.07.2016
Smt. Naina D.Soni, W/o Dilip Soni,
Flat No.D-3, 3rd Floor, Pushpak Apartment,
Opposite : Government High School, Chhotapara,
Raipur (C.G.) ... Appellant
Vs.
Smt. Madhavi Ben Vora (Director),
Director, U.L.J.K. Securities Pvt. Ltd.
1119/1120, P.J. Towers,
11th Floor, Dalal Street,
Fort, Mumbai - 400002 ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri Dilip Soni, Power of Attorney Holder of the appellant, present.
Shri Navin Ahuja, for the respondent.
ORDER
DATED : 14/09/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 04.05.2016, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.219/2012. By the impugned order, the learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated the facts of the case are that complainant paid a sum of Rs.25,000/- to the O.P. through draft for purchase of shares. In spite of // 2 // receiving amount, the O.P. has not purchased and not sent the shares to the complainant, due to which the complainant suffered loss to the tune of Rs.25,000/-. The complainant 4-5 times went to Mumbai and requested the O.P. to refund the said amount to her, but the O.P. has avoided to refund the amount by making pretext. The complaint made a complaint before Stock Exchange, Mumbai on 04.09.2002 against the said act of the O.P. but no action was taken in respect of her compliant. The complainant had again contacted to the O.P. and requested to refund the amount, but no satisfactory reply has been given by the O.P. and ultimately the O.P. refused to refund the mount. The O.P. is purchasing the shares on order of their customers and after obtaining commission, provides her services. The above act of the O.P. comes within category of deficiency in service. Therefore, the complainant filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The O.P. inspite of service of notice, did not appear before the District Forum, therefore, the O.P. was proceeded ex-parte by the District Forum.
4. Earlier, the District Forum, vide order dated 31.05.2014 has partly allowed the complaint of the complainant and directed the O.P. to pay a sum of Rs.25,000/- to the complainant along with interest @ 9% p.a. from the date of receipt of the amount till realisation and to also pay a sum of // 3 // Rs.5,000/- towards compensation for mental agony and a sum of Rs..2,000/- towards cost of litigation.
5. The O.P. filed appeal No.FA/14/584 before this Commission against the order dated 31.05.2014 of the District Forum. This Commission vide order dated 15.04.2015 remanded back the case to the District Forum. The relevant para of the said order runs thus :-
"13. Therefore, the appeal is allowed subject to payment of cost of Rs.5,000/- and the impugned order dated 31.05.2014 is set aside. The case is remanded back to the District Forum, with a direction to provide opportunity to the appellant (O.P.) to file her written statement along with documents on the date fixed by the District Forum. The District Forum, will also provide opportunity to the respondent (complainant) to file documents in rebuttal of the documents, which have been filed by the appellant (O.P.) at the appellate stage as additional evidence, if the respondent (complainant) wishes, and thereafter after providing opportunity of hearing to both the parties, to decide the matter afresh on merits. It is made clear that the appellant (O.P.) will first of all deposit the amount of cost Rs.5,000/- before the District Forum and thereafter only she will be provided opportunity to file her written statement along with documents on the date fixed by the District Forum. It is also made clear that only after deposit of the amount of cost by the appellant (O.P.) before the District Forum, the District Forum will take into consideration the documents, which have been filed by the appellant (O.P.) as additional evidence before us, otherwise the District Forum will decide the matter without taking into consideration these documents. Parties are directed to appear before the District Forum on 05.05.2015. The documents filed by the appellant (O.P.) before us at the appellate stage as additional evidence along with application under Order 41 // 4 // Rule 27 CPC be sent forthwith to the District Forum along with record of the case."
6. After remand of the matter to the District Forum, the O.P. file her written statement and averred that the District Forum, Raipur has no jurisdiction under Section 11 (2) (a) of the Consumer Protection Act, 1986 to take cognizance into the matter. As per Clause 5 of the complaint, the cause of action has accrued to the complainant for the first time in first week of September, 2001, therefore, the complaint which has been filed after 13 years is barred by time and is liable to be dismissed. The complainant herself admitted in para 3(e) and 4(2) that she made a complaint against the O.P. before Stock Exchange on 04.09.2009. The complaint of the complainant has been dismissed by the SEBI in the year 2002 for want of appearance and being time barred. The instant complaint has been filed by the complainant to extract money from the O.P., therefore, the same is liable to be dismissed with compensatory cost. The complainant executed an agreement with the O.P. on 07.08.2002 for Stock Sub Borker in the name of Uma Investment, which has been expired. The complainant has suppressed this important fact to the District Forum. On this basis, the complainant does not come in the category of consumer. The complaint is liable to be dismissed. In the year 2009, the complainant made complaint before Investor Grievances Cell of SEBI in which the representative of the O.P. had appeared. The Chairman of Investors Grievances Redressal Committed provided proper opportunity of hearing to both the parties // 5 // and thereafter dismissed the complaint for want of appearance of the complainant and being time barred. The complainant has suppressed this important fact to the District Forum to extract money from the O.P. The complainant did not suffer any loss. The complainant did not go to Mumbai to meet the O.P. . The O.P. did not commit any deficiency in service. The complainant was a Sub Broker under agreement executed on 07.08.2002 and was doing business in the name of Uma Investment and it's entire operation was being done by the complainant and her husband. Therefore, under the provisions of the Consumer Protection Act, 1986, the complainant was not consumer of the O.P. There appears no question of rendering any service to her. The complainant does not come in the category of consumer, therefore, provisions of the Consumer Protection Act, 1986 are not applicable in the instant case. The complaint is time barred and is liable to be dismissed. The complainant averred in para 5 of the complaint that for the first time cause of accrued for filing complaint was accrued to her in the first week of September, 2001, therefore, under Section 24A of the Consumer Protection Act, 1986, the complaint is time barred and is liable to be dismissed. The complainant is not entitled to get any relief from the District Forum. The complaint is liable to be dismissed.
7. The complainant filed documents. Annexure 1 is courier receipt, Annexure 2 is letter dated 22.02.2001 sent by the complainant to ULJK Securities Private Ltd., Annexure 3 is copy of demand draft dated // 6 // 22.03.2001, Annexure 4 is courier receipt, Annexure 5 is letter dated 17.03.2001 sent by the complainant to ULJK Securities Pvt. Ltd., Annexure 6 is demand draft dated 17.03.2001, Annexure 7 is demand draft dated 01.05.2001, Annexure 8 is final reminder dated 25.06.2012 sent by Mr. Dilip M. Soni to Smt. Madhuri B. Vora.
8. The O.P. has filed documents. Annexure A-1 is Certificate of Entry of Death, Annexure A-2 is Agreement dated 07.08.2002, Annexure A-3 is Draft Indemnity Letter, Annexure 4 are Minutes dated 08.10.2009 of Investors Grievance Redressal Committee, letter dated 15.09.2009 sent by Bombay Stock Exchange Ltd. to U.L.J.K. Securities Pvt. Ltd., letter dated 08.09.2009 sent by U.L.J.K. Securities Pvt. Ltd. to Investors Grievance Redressal Committee, letter dated 01.09.2009 sent by Bombay Stock Exchange to U.L.J.K. Securities Pvt. Ltd., letter dated 15.09.2009 sent by complainant to Investor Grievance Forum, Party Ledger from 01.04.2001 to 31.03.2002, letter dated 08.09.2009 sent by ULKJ Securities Pvt. Ltd. to Investors Grievance Redressal Committee, letter dated 01.09.2009 sent by Bombay Stock Exchange to U.L.J.K. Securities Pvt. Ltd., letter dated 15.09.2009 sent by complainant to Investor Grievances Forum, pass book of the complainant.
9. Learned District Forum, after affording opportunities of hearing to both the parties and after having considered the material placed before it by the parties, vide order dated 04.05.2016 has dismissed the complaint // 7 // holding that the complainant is not consumer and the complaint is barred by time. Hence this appeal.
10. Shri Dilip Soni, Power of Attorney Holder of the appellant (complainant), has argued that complainant paid a sum of Rs.25,000/- to the respondent (O.P.) through draft for purchase of shares. In spite of receiving amount, the respondent (O.P.) has not purchased and not sent the shares to the appellant (complainant), due to which the appellant (complainant) suffered loss to the tune of Rs.25,000/-. The appellant (complainant) 4-5 times went to Mumbai and requested the respondent (O.P.) to refund the said amount to her, but the respondent (O.P.) has avoided to refund the amount by making pretext. The complaint made a complaint before Stock Exchange, Mumbai on 04.09.2002 against the said act of the respondent (O.P.) but no action was taken in respect of her compliant. The appellant (complainant) had again contacted to the respondent (O.P.) and requested to refund the amount, but no satisfactory reply has been given by the respondent (O.P.) and ultimately the respondent (O.P.) refused to refund the amount. The respondent (O.P.) is purchasing the shares on order of their customers and after obtaining commission, provides her services. The above act of the respondent (O.P.) comes within category of deficiency in service. Therefore, the complainant filed consumer complaint before the District Forum, but learned District Forum, has erroneously observed that the complaint is barred by time and // 8 // the appellant (complainant) is not consumer. The above finding of the District Forum, is not sustainable and is liable to be set aside.
11. Shri Navin Ahuja, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the District Forum and has argued that the appellant (complainant) purchased the shares on commission basis and she received commission from the respondent (O.P.), therefore, the appellant (complainant) is not "consumer" under Section 2(1)(d) of the Consumer Protection Act. . The complaint is also hopelessly time barred. The appeal is liable to be dismissed.
12. We have heard the arguments of both the parties and have also perused the record of the District Forum as well as impugned order of the District Forum.
13. Definition of 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986, is as under:-
"(d) "consumer" means any person who,-
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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 // 9 // 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 purpose];"
Explanation:- For the purposes 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;"
14. Definition of 'service' under Section 2(1)(o)) of the Consumer Protection Act, 1986, is as under:-
"(o) 'service' means service of any description which is made available to potential [users and includes, but not inclined to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
15. Definition of 'trader or the service provider' under Section 2(1)(c)(iv) of the Consumer Protection Act, 1986, is as under:-
"(iv) a trader or the service provider, as the case may be , has charged for the goods or for the services mentioned in the complaint, a price in excess of the price -
(a) fixed by or under nay law for the time being in force;
(b) displayed on the goods or any package containing such goods;
// 10 //
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) Agreed between the parties."
16. In Sudhangsu Bhushan Dutta vs The Joint Managing Director, Mansukh Securities & Finance Ltd. & Ors. 2014 (2) CPR 572 (NC), Hon'ble National Commission has observed thus :-
"6. However, it stands proved that the entire case revolves around the shares. The petitioner himself has admitted that he is an investor. This Bench, vide order dated 01.08.2012, in RP No.1179/2012, titled A. Asaithambi vs. The Company Secretary & Ors. placed reliance on para 26,27,33,34 and 35 of Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 SCC 225, and dismissed the complaint.
7. In that case, reliance was also placed on Som Nath Jain Vs. R.C. Goenka & Anr. I (1994) CPJ 27 (NC), West Bengal State Commission, in case of Ramendra Nah Basu s. Sanjeev Kapoor & Anr. I (2009) CPJ 316 and Delhi State Commission in case of Anand Prakash Vs. A.M. Johri & Ors. III (2000) CPJ 291.
8. Aggrieved by the judgment of this Bench (RP No.1179/2012) (supra) a Special Leave to Appeal (Civil) No.36840 of 2013, titled A. Asaithambi Vs. The Company Secretary & Ors., was filed before the Hon'ble Supreme Court which was dismissed.
9. In another case reported in Ganapathi Parmeshwar Kashi & Anr.Vs. Bank of India & Anr., in First Appeal No.362 of 2011, decided on 21.08.2012, pertaining to DMAT account, this Commission dismissed the same.
10. Aggrieved by the said order a Special Leave to Appeal (Civil) No.5401 of 2013, titled Ganapathi Parmeswar Kashi & Anr. Vs. Bank of India & Anr., was filed wherein the Hon'ble Apex Court held as as under :-
// 11 //
ii). The concurrent finding recorded by the State Consumer Disputes Redressal Commission, Maharashtra and the National Commission that the petitioners cannot be treated as consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986, is based on analysis of the pleadings filed by the parties. The DMAT account was opened by the petitioners purely for commercial transactions. Therefore, they were righty not treated as consumer so as to entitled them to claim compensation by filing complaint under the 1986 Act."
17. In Sanjay Chandra Agarwal vs. India Bulls Securities Ltd., I (2015) CPJ 450 (NC), Hon'ble National Commission has observed thus :-
"5. Admittedly, complainant opened two DEMAT accounts with opposite party - one in his own name and another in his HUF name and share transaction were carried out by the complainant on account of which loss was caused. Complainant has nowhere pleaded in the complaint that he carried out transaction in aforesaid accounts by way of self-employment for earning his livelihood. In the absence of such plea learned State Commission in the light of judgment of this Commission and Hon'ble Apex Court rightly observed that aforesaid deficiency was pertaining to commercial transaction and complaint was not maintainable."
18. In M.C. Rana Vs. Vijay Kumar, 2012 (3) CPR 164, Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla, has observed that "share trading a commercial activity and services availed for that purpose would be considered to have been availed for commercial purpose."
// 12 //
19. In Anand Rathi Securities Ltd. and others vs. Smt. Rajshri Verma and another, 2010 CTJ 1194 (CP)(SCDRC), this Commission, has observed thus :-
"7. From perusal of the aforesaid provision, it is evident that a person who avails such services for any commercial purpose, has been excluded from the definition as per amendment added by Act 62 of 2002 w.e.f. 15.03.2003. In the Explanation, it is clarified that if the person purchases the goods or avails the services exclusively for the purpose of "earning his livelihood by means of self-employment" then such goods or services would not amount to have been purchased or availed or commercial purpose. In the matter under consideration the complainant has alleged herself to be a housewife and has further alleged that in order to get tax benefit on income from her capital, she invested the amount and availed services of Portfolio Managers. This statement itself appears to be discrepant. In case she was a housewife, she was not supposed to have any income. In the circumstances, the statement that she invested the amount for availing tax benefit on her income from capital does not appear to be proper. It is not the case of the complainant that the services of the OPs were availed for earning livelihood by the complainant. Obviously the complainant has only invested money and there was no 'self-employment' in the case. Otherwise also 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.
20. In Revision Petition No.2752-2754 of 2011 - Sh. Shashikant S Timmapur vs. Karvy Stock Broking Ltd. & another, Revision Petition No.3300-3301 of 2011 - Sh. Shashikant S Timmapur vs. The Managing Director, The Karvy Stock Broking Ltd. & another, Revision Petition No.3721 to 3725 of 2012 - Shashikant S Timmapur vs. The Managing // 13 // Director, Karvy Stock Broking Ltd. & another, Hon'ble National Commission vide common order dated 24th July, 2013 has observed thus :-
"10. This Commission in R.P. No.1179 of 2012 - A. Asaithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors." Also held that sale and purchase of shares are commercial transactions and does not fall within the purview of 'consumer'. Special Leave to Appeal (Civil) No.36840 of 2012 (A. Asithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors.) filed against this judgment was dismissed in limine by Hon'ble Supreme Court on 14.12.2012. This Commission also took same view in O.P. No. 287 of 2001 - Dr. V.K. Agrawal vs. M/s. Infosys Technologies Ltd. & Ors. Decided on 24.07.2012 and in R.P. No.3345 of 2012 - M/s Sterlite Industries (India) Ltd. Vs. Ganapathi Finsec Pvt. Ltd. decided on 12.07.2013. In F.A.No.362 of 2011 - Ganapati Parmeshwar Kashi & Anr. Vs. Bank of India & Anr., this Commission observed as under :-
"Apart from this, State Commission also held that since the appellants had alleged that they had suffered loss as they could not trade due to suspension of accounts, were not consumers as the dispute related to loss and profit from the share business of the appellants.
We agree with the view taken by the State Commission. Special Leave Petition filed by the Appellant was dismissed by Hon'ble Supreme Court on 14.1.2013 and observed as under :-
"ii) The concurrent finding recorded by the State Consumer Disputes Redressal Commission, Maharashtra and the National Consumer Disputes Redressal Commission that the petitioners cannot be treated as 'consumer' within the meaning of Section 2(d) of the Consumer Protection Act, 1986, is based on analysis of the pleadings filed by the parties. The DMAT Account was opened by the petitioners purely for commercial // 14 // transactions. Therefore, they were rightly not treated as 'consumer' so as to entitle them to claim compensation by filing complaint under the 1986 Act".
21. In the instant case, the appellant (complainant) herself pleaded that she purchased shares from the respondent (O.P.). It appears that the appellant (complainant) purchased the above shares for earning profit and transaction is purely commercial transaction and aforesaid services were obtained by the appellant (complainant) for commercial purpose. In such circumstance, the appellant (complainant) is not "consumer".
22. The respondent (O.P.) filed document Annexure A, which is photocopy of the pass book. From bare perusal of the copy of the pass book, it appears that the appellant (complainant) deposited a sum of Rs.40,000 on 24.12.2001 through cheque No.700362, Rs.50,000/- on 26.12.2001 through cheque No.700363, Rs.4,200/- on 02.01.2002 through cheque No.700366 and Rs.30,000/- on 03.01.2002 through cheque No.700367. It appears that the transactions were done in the month of December, 2001 and January, 2002. The appellant (complainant) pleaded that she filed complaint before SEBI on 04.09.2002, but no action has been taken by SEBI against the respondent (O.P.). Thereafter the appellant (complainant) sent letter to the respondent (O.P.) on 25.06.2012. It appears that the cause of action has accrued to the appellant (complainant) on 04.09.2002 and after 04.09.2002, the appellant (complainant) did not take // 15 // any action against the respondent (O.P.). After lapse of near about 10 years, the appellant (complainant) sent letter to the respondent (O.P.). Mere sending letter does give rise to fresh cause of action.
23. In Improvement Trust, Faridkot Through Its Executive Officer & Anr. vs. Bhupinder Kaur, II (2000) CPJ 56, Punjab State Consumer Disputes Redressal Commission, Chandigarh observed thus :-
"3. For the cause of action accruing prior to June, 1993 a period of three years limitation was prevalent and for the cause of action accruing thereafter the period of limitation is governed by Section 24-A of the Consumer Protection Act, which provides a period of two years limitation only. It may be observed that any correspondence between the parties will not give a fresh cause of action for filing the complaint. The auction took place in 1981 and as per allegations of the opposite party the plot was resumed on January 11, 1994. Even if there was some correspondence, sent by the complainant, that will not give fresh cause of action. On February 17, 1995 the Improvement Trust is alleged to have written a letter to the complainant to pay Rs.7,586/- and on doing so, they would issue the no dues certificate. Assuming that to be the date of cause of action, the complaint was required to be filed within a period of two years. The present complaint filed on December 2, 1997 is clearly barred by time."
24. In United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Honble National Commission has observed thus :-
"6.......... correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 // 16 // to 2007 and, thus claim being barred by limitation, learned District Form committed error in allowing complaint."
25. In Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has observed that "Mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation."
26. The appellant (complainant) has filed the instant complaint on 28.06.2012, which is hopelessly barred by time. Therefore, the finding recorded by the District Forum, is just and proper and does not suffer from any infirmity, irregularity and illegality, hence does not call for any interference by this Commission.
27. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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