National Consumer Disputes Redressal
M/S. Nirma Ltd. vs Keshav Dev Maheshwari & Ors. on 25 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2828 OF 2010 (Against the Order dated 30/04/2010 in Appeal No. 1717/2001 of the State Commission Uttar Pradesh) 1. M/S. NIRMA LTD. 'Nirman House', Ashram Road Ahmedabad - 9 Gujarat ...........Petitioner(s) Versus 1. KESHAV DEV MAHESHWARI & ORS. Mohalla Tabela, Hathras City Aligarh Uttar Pradesh 2. THE ORIENTAL BANK OF COMMERCE Through its Branch Manager, Connaught Place New Delhi Delhi 3. CANARA BANK, HATHRAS Through its Branch Manager Aligarh Uttar Pradesh 4. Jai Maheshwari,S/o. Keshav Deo Mahaeshwari (Deceased) Mohalla - Gali Tabela,P/o/ Hathras, HATHRAS (Maha Maya Nagar) Uttar Pradesh - 204 101 5. Anil Maheshwari, S/o. Keshav Deo Maheshwari,(deceased) Mohalla - Gali Tabela, P/O. Hathras, HATHRAS (Maha Maya Nagar), UTTAR PRADESH - 204 101 6. Smt. Sneh Lata Maheswari, D/o. Keshav Deo Maheshwari,(deceased) Mohalla - Gali Tabela, P/o. Hathras, HATHRAS (Maha Maya Nagar) Uttar Pradesh - 204 101 ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA, PRESIDING MEMBER
For the Petitioner : Mr. Syed Marzook Bafari, Advocate For the Respondent : For Respondents No.1A to 1C : Ex parte
For Respondent No.2 : Mr. H.P. Bhardwaj, Advocate
For Respondent No.3 : Mr. Nilendu Vatsyayan, Advocate
Dated : 25 Apr 2016 ORDER
This revision petition has been filed under Section 21 of the Consumer Protection Act, 1986 against the impugned order dated 30.4.2010, passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred as State Commission) in Appeal No.1717 of 2001- M/s. Nirma Ltd. Vs. Keshav Dev Maheshwari, by which, while dismissing the appeal, the order dated 18.6.2001, passed by the District Forum, Hathras (UP) in C.C. No.581/1995, was upheld.
2. Briefly stated, the facts of the case are that respondent No.1/complainant -Keshav Dev Maheshwari (since died) filed the consumer complaint No.581/1995 before the District Forum, stating that he sent an application no.0392617 for the allotment of 100 shares of the petitioner company by enclosing therewith an amount of Rs.5,500/-, after purchasing stock invest from the OP-3, Canara Bank. The said application was sent to OP-2, Oriental Bank of Commerce in the account of the Registrar, Mondekar Computer Pvt. Ltd., Andheri (West), Mumbai. It was the responsibility of the Registrar to allot shares to the applicant within 60 days or return the stock invest of the equal amount to the applicant. It was stated that the shares were allotted to complainant and sent to him on 29.3.1994, but the complainant did not receive the said shares. The complainant received a letter on 27.8.1994 from Mondekar Computer Pvt. Ltd. and on the basis of that, he sent an indemnity bond to the Registrar on stamp paper of Rs.100/- on the prescribed proforma. After long correspondence, a letter was received from the petitioner Nirma Ltd. dated 16.2.1995, vide which, they sought some more information from the complainant which was sent vide letter dated 23.2.1995, but despite that, the complainant did not receive the shares in question. The complainant vide the consumer complaint sought directions to the petitioner/opposite party to send shares as allotted to him.
3. The District Forum, Hathras after taking into account the contention raised by the parties, allowed the said complaint vide order dated 18.06.2001, and directed the petitioner/opposite party to allot and provide the said equity shares to him within a period of 60 days.
4. Being aggrieved against the said order, the petitioner/OP challenged the same by way of appeal before the State Commission, which was decided after a long delay of about 9 years vide impugned order dated 30.4.2010. The order passed by District Forum was upheld and the said appeal was dismissed.
5. Being aggrieved against the same, the petitioner is before me by way of the present revision petition.
6. At the time of hearing before me, the learned counsel for the petitioner/OP vehemently argued that the consumer complaint in question deserves to be dismissed as the complainant was not covered under the definition of 'Consumer'. The learned counsel referred to the judgement of the Hon'ble Supreme Court in Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, saying that a prospective investor in shares could not be a 'consumer' because such shares do not exist before allotment and hence, cannot be called goods. The learned counsel also stated that the Office of the company was at Ahmedabad and the Office of Registrar was at Mumbai; hence the District Forum in question had no jurisdiction to handle this case. Further, the complainant has not made the Registrar a party in the present case. Moreover, the complainant failed to supply the information as asked for by the petitioner in their letters addressed to him. The learned counsel also mentioned that the complainant had already withdrawn his money of Rs.5,500/- from the Bank upon non-allotment of shares and hence, the present complaint should have been dismissed, being not maintainable.
7. The learned counsel for the Oriental Bank of Commerce and Canara Bank stated that they had not shown any deficiency in their service towards the complainant, neither the complainant had sought any relief from them. They were, therefore, not required to pay any compensation to the complainant.
8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. It is an admitted fact on record that the complainant applied for shares of the petitioner company vide application No.0392617 in response to their public issue and this application was made to the Registrar, Mondekar Computers Pvt. Ltd. by enclosing an amount of Rs.5,500/- therewith. It is also admitted that the said Registrar vide their letter dated 27.8.1994 addressed to the complainant stated that it had allotted shares under Folio No.0392617 and the shares had been despatched to him on 29.3.1994. The Registrar enclosed format of indemnity bond with this letter and asked the complainant to send the said indemnity bond on a stamp paper of Rs.100/-. The complainant sent the indemnity bond to the petitioner and also made correspondence with the petitioner. The petitioner wrote to the complainant vide their letter dated 16.2.1995 that Folio No.0392617 was erroneously given to him by the Registrar, because they had total Folios numbering 22070 only. The petitioner asked for certain details about the application made by the complainant. The complainant supplied information vide letter dated 3.5.1995, followed by letter dated 14.6.1995, copies of which have been filed by the petitioner alongwith the present petition. The petitioner replied vide letter dated 17.6.1995 that his application was not appearing in the master list. They asked him to send bank serial number in respect of his application and also attached proforma duly filled in. Thereupon, the petitioner filed the consumer complaint in question. It is very clear from these facts that the petitioner has been delaying the allotment of shares to the complainant without any valid reason and has been asking different kinds of information from time to time. Once their Registrar had written to the complainant that shares had been allotted to him, the petitioner should have taken steps to ensure that the said shares or their duplicates were duly sent to the complainant.
9. In the present petition, the petitioner have taken the plea that the complaint was not maintainable because a prospective investor for shares does not come under the definition of 'Consumer'. This issue has been examined in detail before this Commission in R.P. No.1549 of 2010, Rajan V. Kamat and others Vs. Shri Pedro A. Almeida and another, decided on 23.3.2015 and it has been stated as follows;
"8. The first question which comes up for our consideration in these cases is as to whether the complainants are consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act. It was contended by the learned counsel for the respondent that the investment by the complainants having been made to earn income, the transaction was for a commercial purpose. The expression 'commercial purpose' has not been defined in the Act and, therefore, as held herein below by the Hon'ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have to go by the dictionary meanings, "In the absence of a definition, we have to go by its ordinary meaning 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile, having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise on a large scale" (Concise Oxford Dictionary)."
10. It has been made clear that making investments in Bank Deposits, Shares, Mutual Funds etc. does not mean that such investor/depositor was engaged in commerce or business. It is also stated that earning returns by way of such investments is altogether different from generating profits by way of trading or manufacturing activity. In the present case, the complainant made an application for allotment of just 100 shares. It cannot be stated therefore that he was engaged in an activity which comes under the definition of commercial purpose. Further, it has been made clear from record that the Registrar to the issue sent a letter to the complainant, saying that shares had been allotted and sent to him. It is clear therefore, that the complainant was the purchaser of goods and not just a prospective investor. There is, therefore, no valid ground to concur with the contention of the petitioner that the complainant does not fall under the definition of 'Consumer'
11. In so far as the submission made by the petitioner that the District Forum had no jurisdiction to handle the consumer complaint, it is stated that the complainant is a resident of District Hathras and the investment was also made by withdrawing money from Canara Bank at Hathras. The cause of action has arisen because the shares sent by the Registrar to the issue were not received by the complainant at Hathras. The contention of the complainant, therefore, that the complaint was maintainable before the District Forum, Hathras as the cause of action arisen at Hathras is valid and hence, the District Forum rightly decided the consumer complaint at hand. Moreover, a complainant just spending an amount of Rs.5,500/- and staying at Hathras (UP) cannot be expected to go to Mumbai or Ahmedabad to file a consumer complaint before the District Forums at those places. The plea taken by the petitioner, therefore, regarding jurisdiction is without any force.
12. In so far as the withdrawal of money by the complainant is concerned, that does not absolve the petitioner from their responsibility for allotting shares, once the complainant has been found to be entitled to shares by their own Registrar. I, therefore, do not find any illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below. The revision petition is, therefore, ordered to be dismissed with no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER