State Consumer Disputes Redressal Commission
Mr.K.V.S.Suryanarayana, Hyderabad vs Icici Direct Icici Web Trade Limited, ... on 18 December, 2009
FA BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA.No.70/2007 AGAINST C.C.No.475/2006 DISTRICT FORUM-II, HYDERABAD. Between: Mr.K.V.S.Suryanarayana, Age 73 years, Plot No.1342 A, Road No.67 Jubilee Hills, Hyderabad-500 033. Appellant/ Complainant And ICICI Direct ICICI Web Trade Limited, Regd. Office: ICICI Bank Tower, South Tower, 3rd floor, Bandra-Kurla complex, Bandra (E) Mumbai-400 051. Respondent/ Opposite party For the Appellant: Mr.K.V.S.Suryanarayana, PIP. Counsel for the Respondent:-M/s.V.V.S.N.Raju. QUORUM: SMT.M.SHREESHA, MEMBER
& SRI K.SATYANAND, MEMBER FRIDAY, THE EIGHTEENTH DAY OF DECEMBER, TWO THOUSAND NINE (Typed to the dictation of Sri K.Satyanand,Honble Member) *** This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum.
The facts that led to filing this appeal are briefly as follows:
The complainant stated that in the year 2002 he opened account in his wifes name with the opposite party for online trading in shares etc., The complainant intended to place an order for purchase of 2000 shares of that company at 0.72 paise per share but the website of the opposite party indicated that no trading was permitted in this scrip. The complainant therefore sent a letter dated 1-3-2005 through email to the opposite party that such withdrawal of the company from the stock list is not correct and asked them to restore the same. The opposite party responded on 2-3-2006 stating that they have a Risk and Evaluation Committee which looks into their list of companies to be traded and decide whether to include or exclude from the stock list. SRG Infotech was marked as such a company where no trading was permitted. The complainant further stated that on 11-3-2006 he purchased 1000 shares through them on 28-9-2005 and it was not correct for the opposite party to remove companies from their stock list merely because their Risk and Evaluation Committee did not treat them to be profitable for them. As long as trading was permitted by the Stock Exchange, the opposite party cannot refuse trading in those shares on behalf of their clients, when requested by the clients. SRG Infotec. was a compulsorily dematerialized share and therefore once again through email dated 5-3-2006 the complainant asked the opposite party to purchase 2000 shares of the said company at 0.74 paise and a routine reply was given by the opposite party and requested the complainant to contact their Customer care. The complainant, therefore, got issued a legal notice dated 6-3-2006 through email and the opposite party vide their email dated 6-3-2006 expressed their inability to place an order and advised the complainant to contact separate Dept. Call and Trade. To a further email dated 11-3-2006 of the complainant, the opposite party informed through email dated 17-3-2006 that SRG Infotec (India) Ltd. was available for selling through BSE but the complainant replied that he wanted to buy and not to sell and when he tried to place an order, he was not allowed saying that buying this scrip was not allowed. The opposite party vide their mail dated 18-3-2006 informed the complainant that they reconfirm that the mentioned scrip was only allowed to sell and not for a buy and that they had enabled the scrip for sale as the complainant purchased the same from ICICI direct. It is the case of the complainant that the opposite party had to entertain both buy and sell transactions in all shares compulsorily dematerialized and cannot take decisions not to trade in some scrips and hence pleaded deficiency in service and approached the District Forum.
The opposite party filed counter that the complainant was not at all a consumer maintaining an account with the opposite party and therefore the complainant had no locus standi to file this complaint.
It further contended that the complaint was not maintainable as the services availed by the complainant were for commercial purpose and therefore the complainant cannot come under the definition of consumer. Opposite party admitted that Smt.K.Kameswari had opened a 3-in- account consisting of a bank account, a demat account and a trading account with ICICI Web Trade Ltd (IWTL) which was a member of the National Stock Exchange, Bombay stock exchange and over the Counter exchange of India. It further stated that IWTL provided online trading services through internet and orders were placed by the opposite partys clients directly through the opposite partys website without any manual intervention and in such an automated environment, there was possibility that the clients could place abnormal orders and manipulate stock prices especially that of stocks with penny prices which were less than the face value etc. and to valid future regulatory actions as well as risk associated with the same, IWTL allowed trading facility only in the scrips wherein risk would be limited as it was answerable to stock exchange and therefore the scrip SRG Info tec. was not made available for buying on their website though the same was available for sale through Bombay stock exchange Limited. The complainant purchased 1000 shares of the said scrip on 28-9-2005 in BSE and 500 shares on 9-9-2005 in BSE and the complainant was free to sell the above shares in BSe through icicidirect.com till date but was disabled only for additional buying. It asserted that the complainant had not suffered any loss due to non purchase of the said scrip. It submitted that the clients can place either on O.Ps site or through opposite party call centre and the order cannot be placed on behalf of the client by receiving instructions on mail and further stated that scrips were enabled/disabled a s per volatility of market and prayed for dismissal of the complaint.
The complainant filed his own affidavit and relied upon documents marked as Exs.A1 and A2. On the other hand, the opposite party filed affidavit and relied upon document marked as Ex.B1.
On a consideration of the evidence adduced by both sides, the District Forum came to the conclusion that the complainant was not a consumer and therefore he had no locus standi to file the complaint and in terms of the said finding dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal reiterating his stand that he can nevertheless maintain this complaint on behalf of his wife as generally in the country the womenfolk are illiterate as recognized by dicta contained in the decisions by the Higher courts.
The point that arise for consideration in this appeal is Whether the order of the District Forum suffers from any infirmity requiring interference by this Commission.
This is a strange case in which a person filed a consumer complaint on behalf of his wife without any kind of authorization much less in the capacity of duly constituted power of attorney. In order to vindicate his action in doing so, he resorted to an oft repeated settled proposition of law that a person can maintain complaint on behalf of the wife conveniently eschewing the critical part of that proposition that he can do so with proper authorization or power of attorney.
The said proposition does not dispense with the requirement of due authorization not withstanding the marital relationship as each spouse in a wedlock is a sui juri entitled to work his or her rights only as per procedure established by law. The law clearly mandates the requirement of authorization in matters of proxy litigation.
The complainant gave a go by to this and asserted before the District Forum and again in this State Commission that he can file a complaint substituting himself in the place of his wife in order to work out the rights of his wife. This is an absurd approach and absolutely unwarranted in law. The District Forum rightly dismissed the complaint and in fact there is absolutely no necessity to go into the merits of the case.
However, a cursory look at the grievance sought to be made out itself amply demonstrates that his very case is trumpery and speculative. According to the complainant, his wife engaged the opposite party in order to procure and sell shares. Their grievance is that the opposite party declined to purchase shares of SRG Infotec inspite of the instructions of the complainant on the ground those shares were not put up for buying though available for selling only as per the stock exchange regulations. He tried to assail that stand taken by the opposite party as untenable on the ground that when once shares are listed on the stock exchange, no body can refuse trading in those shares in both ways. If that is so, his grievance is directed against some other authority which is not party here. Even otherwise, so long as this deal is not concluded, the offers and counter offers or the offer and the acceptance or the offer and rejection, all these things lie within the exclusive domain of the parties and the facts presented by the complainant clearly show that it was from out of such inconclusive facts that he intended to make out a grievance which is repugnant to the basic principles of contract. Thus even on merits, the complainant has no case and the District Forum rightly dismissed the complaint. We do not see any grounds to interfere with the order of the District Forum.
Accordingly the appeal is dismissed but without costs in the circumstances of the case.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.18-12-2009