National Consumer Disputes Redressal
Balwant Kumar Gyanchand Mittal vs Network Stock Booking Ltd. on 12 March, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3616 OF 2013 (Against the Order dated 15/03/2013 in Appeal No. 1017/2010 of the State Commission Gujarat) 1. BALWANT KUMAR GYANCHAND MITTAL R/AT 26, NAVDURGANGAR CO.OP SOCT.LTD. NR.NAVRANG HIGH SCHOOL, ODHAV AHMEDABAD GUJARAT ...........Petitioner(s) Versus 1. NETWORK STOCK BOOKING LTD. OFFICE SITUATED AT: A/41, MADHAV CHAMBERS, AHMEDABAD GUJARAT ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For the Petitioner : MR. PAWAN KUMAR RAY For the Respondent :
Dated : 12 Mar 2015 ORDER PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the original complainant Balwant Kumar Gyanchand Mittal against the order dated 15.3.2013 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad in Case No.1017 of 2010 whereby the State Commission allowed the appeal filed by the respondent/opposite party Networh Stock Broking Ltd., Ahmedabad and set aside the order dated 25.2.2008 passed by the Additional Consumer Disputes Redressal Forum, Ahmedabad in Consumer Complaint Case No.230/2007 and also dismissed the complaint of the petitioner.
2. Briefly stated, the facts relevant for disposal of this revision petition are that the petitioner who is a senior citizen of 68 years of age and was leading a retired life after a successful business career in his young age, was having a trading account with the respondent/opposite party and doing business of purchasing and selling shares in the "Future & Option" segment and also in cash (Delivery Basis Segment) in F & O segment. He used to give instructions to the respondent in respect of the shares which he wanted to purchase or sell. It is the grievance of the complainant/petitioner that without informing the complainant, the OP sold certain shares of the complainant without any legal rights to do so. As per the allegation, during the period in question, the share prices were going up and if the OP had not sold the shares of the complainant without informing him, the complainant might have earned Rs.1 lakh. Alleging deficiency in service on the part of the OP in this regard, the complainant filed his consumer complaint before the Additional City Forum, Ahmedabad. The OP remained absent and the matter was decided by the City Forum ex parte based on the submissions of the petitioner/complainant and the documents filed by him in support of his contentions in terms of the following directions:-
"The present complaint of the complainant has been accepted.
The respondent is given order to refund the amount equivalent to purchase price of the shares alongwith interest @6% from the date of purchasing the shares till the actual date of making the payment to the complainant.
The respondent will also give Rs.1500/- incurred by the complainant towards making this complaint."
3. After the aforesaid order of the District Forum, the complainant/petitioner filed an execution application bearing No.15 of 2010 before the City Forum. It is seen from the copy of the memorandum of appeal placed on file that the OP for the first time came to know about the order against it when it received the notice from the City Forum on or around 10.3.2010 for its appearance in the execution matter on 30.3.2010. Thereafter, aggrieved of the order dated 25.2.2008, the OP filed its appeal before the State Commission against the original order dated 25.2.2008 passed by the City Forum, Ahmedabad. The State Commission by its impugned order allowed the appeal, set aside the order of the City Forum and dismissed the complaint. It is against this order that the present revision petition has been preferred before this Commission under section 21 (b) of the Consumer protection Act, 1986.
4. We have heard learned Shri Pawan Kumar Ray, Advocate for the petitioner and perused the record. The State Commission vide its impugned order has recorded the following reasons for setting aside the order of the District Forum:-
"The respondent has requested the forum to continue with the details submitted in respect of the case. Against that Shri Milan Dudhiya, on behalf of the appellant has filed with Namdar National Commission revision appeal no.4164/2008. In reference with the principles cited in Shri Aanandappa V/s Regional Manager, Georgit Finance Services, Hubli and others, the appeal has been admitted. As per the judgement of the Namdar National Commission in related cases, when 100% margin money is not available with the Purchaser Franchisee at the time of purchasing the shares, the orders of purchaser cannot be implemented, purchasing franchisee cannot be held liable for any breach of terms and conditions of the agreement with the purchaser. Taking into consideration the judgement given by Gujarat Consumer Commission in Case Appeal No.282/2009 Dipak Kumar Nanubhai Desai v/s Religare Securities Limited, Surat, the Commission rejected the appeal and accepted the disclosure presented by Religare Securities Limited. In addition to this, Shri Milan Dhudhiya has in the appeal submitted with Consumer Commission, Maharashtra, Mumbai No.4/2009 dated 8.4.2010 with reference to V.K. Sukumaran Mumbai v/s Mumbai Georgit Finance Services Limited 2010 CPJ 361 (SC), there is no scope of Consumer Protection Act in speculative business and in such a case the share purchaser is not considered as a consumer as per the definition under the Act and any such sales is considered as commercial transaction. The same principle also applies in the present case and the respondent client in absence of share margin money balance with the appellant, he cannot purchase the shares through oral communication and had he opted for delivery based on Futures and Option segment, then the amount needs to be deposited compulsorily and if only the difference between the two prices i.e. profit is to be settled then the transaction falls within the definition of speculative transaction. The appeal cannot be admitted based merely on interpretation of profit in favour of the consumer. However, the respondent consumer's appeal has been admitted which is against the provisions of the law and is being dismissed and in these circumstances the arguments of the respondent are being rejected. Shri Milan Dudhiya's arguments have been upheld."
5. The short question which has arisen for our decision in this case is as to whether a person who indulges in speculative business through a trading terminal can be considered as a consumer as per the definition of a consumer under the Consumer Protection Act, 1986? If not, whether the complaint by such a person in respect of his speculative business could be entertained as a consumer complaint by the consumer fora under the Act. Keeping in view the authority of a number of cases referred to by the State Commission, the State Commission vide its impugned order has held that the petitioner is not a consumer as per the definition under the Act and as such his complaint could not have been entertained by the City Forum, Ahmedabad. We agree with the view taken by the State Commission. This Commission as well as Hon'ble Supreme Court through a catena of judgements has consistently held that the trading in shares and speculative business are outside the purview of the Consumer Protection Act. This view is in line with the view taken by the Hon'ble Supreme Court in the cases of Morgan Stanley Mututal Fund Vs. Kartick Das [(1994) 4 SCC 225] and Ganapathi Parmeshwar Kashi & Anr. Vs. Bank of India & Anr. [Special Leave to Appeal (Civil) No.5401 of 2013] and the judgement of this Commission by a 5-Member Bench in the case of Unit Trust of India Vs. Sabitri Devi Agarwal [ 2000 CTJ 501 (CP) (NCDRC)]. Nothing has been placed before us to justify a different view in this case.
6. In view of the above discussion, we do not find any substance in the revision petition and dismiss the same at the threshold but with no order as to costs.
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER