National Consumer Disputes Redressal
M/S. Indiabulls Financial Services ... vs Mr. Varghese Skaria on 2 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.543 OF 2011 with I.As for Delay and Stay) (Against the order dated 25.3.2011 in O.P. No.19/2008 of the State Commission, Thiruvananthapuram) M/s. Indiabulls Financial Services Ltd. F-60, Malhotra Building Second Floor, Connaught Place, New Delhi 110 001 Appellant no.1 M/s. Indiabulls Securities Ltd. F-60, Malhotra Building Second Floor, Connaught Place, New Delhi 110 001 Appellant no.2 Vs. Mr. Varghese Skaria Koyikkal House, Greenpark, Asokapuram, Post Office Alwaye, Ernakulam Respondent no.1 Mrs. Darly Varghese Koyikkal House, Greenpark, Asokapuram, Post Office Alwaye, Ernakulam Respondent no.2 BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. VINAY KUMAR, MEMBER For the Appellants : Mr. Akshay Ringe, Advocate with Mr. Manmohan Singh, Authorised Represetative Pronounced on: 2nd April, 2012 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER . This first appeal has been filed by appellants against judgement dated 25.3.2011 passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short as State Commission).
2. Alongwith this appeal, an application for condonation of delay has also been filed.
3. Vide impugned judgement, the complaint filed by respondents was allowed in part.
4. Respondents-complainants in the State Commission, filed a complaint against appellants- opposite parties stating that respondent no.1 is a retired employee of a Public Limited Company and respondent no.2 is his wife. They invested their hard earned money with appellant no.1 for purchasing and trading shares. Originally they had been trading with M/s. Geogit Financial Service Ltd. and due to the continuous persuation, insistence and compulsion by appellants, they transferred their whole account to the appellants company. It is further stated that originally respondents were dealing with small quantities of shares. On 10-05-2006, due to the strong recommendations of one Mr. Lalbert Cherian, Regional Manager of appellants, respondents agreed to purchase shares of MTNL at the market rate of Rs.220/- per share and believing the words of the Regional Manager of appellants, they put an order for 10,000 shares at the rate of Rs.219/- per share. Immediately after the purchase, price of the shares went down as against the assurance of the Regional Manager. It is also stated that respondents were forced into an additional debt of approximately Rs.23,00,000/-. It is also alleged that respondents wanted to sell all the shares when the prices were not that low, but appellants waited for another period and they sold the shares without the consent of the respondents, at a stage when the market value was very low. The appellants were charging interest on the amount offered by them though respondents had requested to clear the dues by selling the shares much earlier, but the appellants were dragging the matter to enrich themselves with the interest charged on the amount offered by them. In order to clear the debt, respondents had to sell their property which was worth much more than the price they received and are now in a pitiable condition due to the unfair trade practice and deficiency in service committed by the appellants.
5. Appellants were duly served but they did not file any written version before the State Commission, despite having been given chances for filing the same. However, on 20.6.2009 complaint of the respondents was dismissed in default due to their non appearance which was restored later on. Even after restoration, appellants failed to file their version.
6. State Commission, vide impugned order, partly allowed the complaint and passed the following order;
In the result, the complaint is allowed in part.
Thereby the opposite parties are directed to pay to the complainants the sum of Rs.13,50,521.51 with compensation of Rs.2,00,000/- within one month from the date of receipt of this order, failing which the amounts shall carry interest at the rate of 12% per annum from the date of default till the date of payment. The complainants are also eligible to get a sum of Rs.5,000/- as costs to be realized from the opposite parties.
7. It is contended by learned counsel for the appellants that complaint filed by the respondents is not maintainable since they were engaged in trading of shares which amounts to commercial activity. Secondly, in view of Securities and Exchange Board of India Act, 1992 (for short Securities Act), Consumer Forum has no jurisdiction to adjudicate upon such disputes between the parties. In support, learned counsel has relied upon a decision of this Commission Delhi Transport Corporation Employees Provident Fund Trust vs. Orissa Small Industries and Anr. III (2007) CPJ 316 (NC).
8. Since, there is delay of only 7 days in filing this revision, for the reasons mentioned in the application for condonation of delay, the delay is condoned. The application stands allowed.
9. On merits, it is an admitted fact that appellants were duly served before the State Commission but did not file any version in spite of opportunities having been granted to them. Thus, there was no defence of the appellants before the State Commission.
10. In appeal, appellants cannot be permitted to rely upon those documents which were not before the State Commission nor it can create any defence at this stage except for the legal arguments.
11. The questions which arise for consideration are as to whether respondents are consumers or not and whether any deficiency in service have been committed by the appellants. In this regard, State Commission has observed;
The complainants have alleged that the opposite parties had committed deficiency in service and unfair trade practice. It is averred that due to the instigation and compulsion of the opposite parties, the complainants had changed their share dealings with M/s. Geogit Financial Service and had invested the amount and had started the dealings with the present opposite parties. It can be seen that the complainants had availed the services of the opposite parties for buying and selling of shares and it is also averred that the opposite parties had sold the shares belonging to the complainants without their knowledge and consent thereby putting the complainants to huge loss. It is also found that though notices were served on the opposite parties, the opposite parties did not care to file version and contest the matter which would give an impression that the complainants case regarding the availing of service can be accepted.
12. Even otherwise, as per respondents case, respondent no.1 is a retired employee of a Public Limited Company and respondent no.2 is his wife and they invested their hard earned money with appellants for purchasing and trading shares. Thus, it can reasonably be said that purpose of investing money in shares is not for commercial gain but to earn their livelihood after their retirement. Thus, respondents are covered within the meaning of consumer as defined under the Consumer Protection Act, 1986. Accordingly, decision of Delhi Transport Corporation (supra) is not applicable to the facts of the present case.
13. Appellants counsel during the course of arguments tried to place much reliance on large number of documents filed alongwith present revision petition. However, this Commission cannot take cognizance of any such documents of the appellants which were not filed before the State Commission. Thus, plea taken by the appellants that this Commission has no jurisdiction in view of the Securities Act is of no help to them.
14. Looking from any angle , we find no illegality or infirmity in the impugned order as deficiencies in the service, as proved by the respondents have not been rebutted at all. Accordingly, present appeal is hereby dismissed with costs of Rs.10,000/-.
15. Appellants are directed to deposit the costs by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within one month from today.
16. In case, appellants fail to deposit the aforesaid costs within the prescribed period, they shall also be liable to pay interest @ 9% p.a., till realization.
17. Pending application stands disposed of.
18. List for compliance on 11th May, 2012.
...J (V.B. GUPTA) (PRESIDING MEMBER) ....
(VINAY KUMAR) (MEMBER) Sg.