State Consumer Disputes Redressal Commission
M/S Geogith Bnp Paribas, vs Sunil Dattaram Raikar, Major on 6 August, 2024
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. First Appeal No. A/3286/2010 ( Date of Filing : 31 Jul 2010 ) (Arisen out of Order Dated 23/06/2010 in Case No. CC/520/2008 of District Belgaum) 1. M/s Geogith BNP Paribas, Financial Services Ltd., a company incorporated under the provisions of the Comapnies Act,having its office at Finance tower, 5th floor, Kaloor, Kochi 682 007, and rep. by its Regional Manager and authorized Rep. Mr.Karthikeyan M.S. ...........Appellant(s) Versus 1. Sunil Dattaram Raikar, major Resident of Mahalakshmi Road,Hulbatti Colony, Shahapur, Belgaum. ...........Respondent(s) BEFORE: HON'BLE MR. Krishnamurthy B.Sangannavar PRESIDING MEMBER HON'BLE MRS. Smt. Divyashree.M MEMBER PRESENT: Dated : 06 Aug 2024 Final Order / Judgement Date of filing:31.07.2010 Date of Disposal:06.08.2010 BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 06th DAY OF AUGUST 2024 PRESENT Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER: Mrs.M.DIVYASHREE : LADY MEMBER APPEAL NO.3286/2010 O R D E R
BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:
This is an appeal filed by OP Nos.1 to 3 in CC/520/2008 on the file of DCDRF, Belgaum, aggrieved by the order dated 23.06.2010. (The parties to this appeal will be referred as to their rank assigned to them by the District Forum) The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.
Now the points that arise for consideration of this Commission would be whether impugned order dated 23.06.2010 passed in CC/520/2008 does call for an interference for the grounds set out in the appeal memo?
One Mr.Sunil Dattaram Raikar has raised a Consumer Complaint against OP Nos.1 to 3 to pay a sum of Rs.5,19,625.81/- due to him as on 05.10.2007 along with interest @ 22% p.a. till the date of payment and sought for compensation of Rs.2,50,000/- towards deficiency in service and Rs.1,50,000/- towards financial loss and cost of litigation. The OP Nos.1 to 3 have contested the case and had denied the complaint allegations. They have raised an objection that Consumer Complaint could not be entertained, since the complainant is not a consumer, since the transaction held between complainant and OP Nos.1 to 3 is a commercial transaction and the Consumer Forum has no jurisdiction to entertain the complaint and the complaint raised is liable to be dismissed.
In view of rival contentions of the parties to the complaint, District Forum decided the case on 23.06.2010 and held OP Nos.1 to 3 are liable to pay a sum of Rs.5,17,838.43/- along with interest @ 12% p.a. from the date of complaint till realization and directed to compensate complainant at Rs.60,000/- and awarded cost of Rs.10,000/-. Further held liability of OP Nos.1 to 3 are joint and several and the awarded amount is directed to be payable within 30 days failing which the rate of interest thereon shall be @ 18% p.a. from the date of complaint till realization. It is this order being assailed before this Commission in this appeal, which once came to be dismissed at the stage of admission itself, on 18.08.2010. Aggrieved by the said order OPs have preferred a Revision Petition before Hon'ble NCDRC in RP/4246/2010 which came to be decided on 10.02.2017 and as a result set aside the order dated 18.08.2010 of this Commission in A/3286/2010. Consequently remanded back the appeal to this Commission to pass speaking order after giving opportunity of being heard to the parties to the complaint.
Let us examine the impugned order passed by the District Forum, in order to ascertain whether proper points for considerations were been formulated. From enquiry held by the District Forum formulated the following points for consideration:
Point no-1 - Whether the complainant is entitled for the reliefs sought for in the complaint?
Point no-2 - What Order?
Thus, from the above two points, suffice to hold that District Forum had utterly failed to formulate a vital point which was raised by the Ops in their version submitted to the case of the complainant. It is their bone of contention that the complaint is not maintainable before the Consumer Forum. In such circumstances, from the materials on record placed by parties to the complaint legal point which would arise would be whether complaint raised by complainant could be entertained by District Forum under CPA, 1986. However, the District Forum failed to raise such point for consideration. It is also the contention of the Ops that the Consumer Forum as has no jurisdiction to entertain the complaint in the light of arbitration clause. It is therefore we are of the viewDistrict Forum has committed a grave error in not raising a vital point for consideration, before proceeds to record findings on point No.1 and 2.In other words, legal effect of non raising such point for consideration or had DF raised such point for consideration and recorded a finding thereon would be the for reaching legal effect, was ignored is not appreciated.
In such view of the matter, now question may come. Whether this Commission to remand back the matter to District Forum with a direction to raise those points which were not been formulated with a direction to raise a point, whether complaint raised by the complainant could be entertained? And whether complainant is a consumer and the OPs are service providers within the definitions of CPA 1986? In this regard it would be appropriate to make mention of the facts as found from the records that thecame to be filed on 05.12.2008 before the District Forum and the District Forum decided the complaint on 23.06.2010 and the aggrieved Ops have preferred the appeal before this commission which came to be dismissed on 18.08.2010 at the stage of admission itself and further,aggrieved Ops have preferred a RP/4246/2010 before the Hon'ble NCDRC which came to be decided on 10.02.2017 and now we are in the midst of 2024 to decide the appeal, as such instead remanding back the matter to the DF deciding the appealby the commission would meet the ends of justice and we hereby raised the following points for consideration:
Point No.1: Whether OPs have shown from the complaint averment and the enquiry held, complainant is not a consumer and the dispute raised is not a consumer dispute to be examined under CPA, 1986?
Point No.2: Does complainant prove OPs have rendered deficiency in services as alleged in his complaint, in respect of investment made by him at Rs.5,19,625.81/-?
Point No.3: Does he is entitle for the relief sought for?
On Point No.1: Admittedly OP1 is a Stock Brokering Company while OP Nos.2 and 3 are Manager and Senior Executive working in the local branch of Belgaum. Complainant in his complaint has stated that he was already with DEMAT Account bearing No.11429579 and Trading Account No.HLS025 on 27.12.2005. It was his case that Ex-Manager of OP branch Mr.Chandrashekar has purchased the shares of Hindalco, Reliance Communication and Suzlon Energy and instructed the complainant to pay sum of Rs.4,33,931.23/- namely the value of the said shares as on the date of purchase was Rs.4,33,931.23/-. On 04.10.2007, he has placed the order with OP2 over phone for selling 200 shares of Suzlon Energy and accordingly OP2 had sold them and on the same day evening OP2 gave a confirmation statement for having sold shares for Rs.3,24,716.49/-. Again on 05.10.2007 complainant placed an order with OP2 over phone for selling 300 shares of Reliance Communication Company. Accordingly, OP2 sold those shares and on the same day evening gave confirmation statement for having sold shares for Rs.1,93,121.94/-. He has stated, market values of shares were on the higher side during the said period and therefore he has instructed OP2 to keep the amount in his account intact. In other words, he has instructed OP2 to keep Rs.3,24,716.49/- and Rs.1,93,121.94/-. Thus total of Rs.5,19,625.81/- was kept with OP2 at that point of time. It is this amount which complainant sought for refund from OP Nos.1 to 3 in his complaint on the ground that subsequently within a period about 04 months he had been to office of OP2 to enquiry about the market trend and credits the balance in his account. But OP2 said that only Rs.13,500/- was available in his credit and the remaining amount was utilized by OP3 who in turn confirmed the utilization of his funds to deal with the shares of Escorts, Nicholas, Power Grid, GMDC and Energy Development as per the direction of his seniors and the directors of OP1 Company. According to complainant he has never instructed OPs to utilize his funds or credit in his account to purchase shares of Escorts, Nicholas, Power Grid, GMDC and Energy Development. When OPs denied refunding Rs.3,24,716.49/- and Rs.1,93,121.94/- had raised a Consumer Complaint. Now the Commission has to examine whether the statement made by complainant in his complaint are accepted as they are could be held consumer within the definition of Sec.2(1)(d) of CPA, 1986 or OP Nos.1 to 3 are to be termed as service providers, consumer dispute and the deficiency within the definition of Sec.2(1)(e)(g)(o) of the said Act.
Now let us examine what defence OPs have taken up in their version contending Mr.Chandrashekar was not at all working as Manager of their branch office of Belgaum as on 15.02.2007. They have categorically denied that complainant had given instruction to them for keeping the amount of Rs.5,19,625.81/- intact in their account. According to them, it is all after that to claim the complaint amount only after knowing the fact that the balance amount was only Rs.13,500/- since the entire balance amount was utilized by OP3. It is their specific contention that all the intraday transactions were carried out by them on the instructions given by complainant himself and as per the guidelines of SEBI and Stock Exchange, they have informed all the said transactions to the complainant by phone as well as in writing by sending the contract notes regularly by post within 24 hours of transactions. They have strictly followed the guidelines of SEBI and Stock Exchange in carrying out the said intraday transactions and they have not violated any of the guidelines as alleged by the complainant. It is also their specific defence that complainant only after incurring the loss in the said intraday transactions has kept quiet for sometime knowing the risk in the speculative trade in shares and had made false allegations against OPs.
In view of rival contentions of the parties to the complaint in our view, if the above facts are to be accepted as they are: admittedly complainant had invested his money with OPs to purchase shares and had maintained DEMAT Account No.11429579 and Trading Account No.HLS025 on 27.12.2005, viewed from any angle he cannot be said a consumer within the meaning of Sec.2(1)(d) of CPA, 1986 and the dispute raised by him cannot be said a consumer dispute and any loss incurred by him in intraday transactions cannot be said rendering deficiency on the part of OPs who are traders within the meaning of Sec.29(1)(d)(g) and (o) of the Act, yet District Forum firstly has failed to perceive the facts secondly has failed to formulate relevant points for consideration and proceed to allow the complaint holding OPs are liable to refund Rs.5,17,838.43/- which was the amount available in the Trading Account No. HLS25 for having sold 200 shares of Suzalon Energy on 04.10.2007 and for having sold 300 shares of Reliance Communications Company on 05.10.2007. When the complainant had maintained his DEMAT Account and Trading Account with OPs his selling shares and purchasing shares at his instructions cannot be said a Consumer or his complaint raised cannot be said a Consumer Dispute and the OPs cannot be said service providers which was not at all examined by the District Forum.
It has come in the enquiry that OPs have strictly done the transactions as per the guidelines of SEBI and Stock Exchange and as per the transactions made by the complainant himself and they have informed all the transactions over phone as well as in writing by sending the contract notes regularly by post within 24 hours of transactions, suffice to conclude that complainant is not a consumer and the OPs are not the service providers and their relationship is that of the traders and their agents which cannot be examined under CPA, 1986. Sec.2(1)(d) provides - "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". Thus the object of complainant maintaining DEMAT account and Trading Account with OPs from the facts stated could be said undoubtedly selling of shares and issuing of shares comes within the meaning of commercial purpose which cannot be entertained by the Consumer Forum. Even assuming Sec.3 which provides Act not in derogation of any other law - "The provisions of this Act shall be in addition and no in derogation of the provisions of any other law for the time being in force.", since prima-facie complainant averments and version are made out, complainant is not a consumer and the OPs are not service providers. In our view, District Forum has unnecessarily examined certain irrelevant materials, discussing some irrelevant factors and passed judgment running 31 pages without raising proper points for consideration. In other words, examining the facts putforth by parties and passing judgment as if a criminal law court or civil court, referring copy of charge sheet filed against OP Nos.2 and 3 on the file of JMFC III Court, Belgaum for the offences punishable U/s 409, 420 and 468 R/w Sec.34 of IPC which was registered in Cr.No.96/2008 of Khade Bazar Police Station, Belgaum. It has also come in the enquiry and impugned order that father-in-law of complainant as on 16.06.2008 was a police officer working as Dy.S.P in Lokayukta. Anyhow, the parties to the complaint are governed by rules and regulations of SEBI and Stock Exchange which cannot be examined by a Consumer Forum under CPA, 1986. In such view of the matter, it may not be just and proper to entertain such complaint and to record any findings except to record finding on point no.1. With such conclusion, we record findings on point No.1 in the negative and as a result recording finding either on point No.2 and 3 does not survive for consideration. Hence proceed to allow A/3286/2010 with no order as to costs. Consequently, set aside the order dated 23.06.2010 passed in CC/520/2008 on the file of DCDRF, Belgaum and as a result ordered to dismiss the complaint with no order as to costs. It is for the complainant to seek any other remedy before the Forum if any competent if advised.
Send a copy of this Order to the District Commission and parties to the appeal for information.
Lady Member Judicial Member *GGH* [HON'BLE MR. Krishnamurthy B.Sangannavar] PRESIDING MEMBER [HON'BLE MRS. Smt. Divyashree.M] MEMBER