National Consumer Disputes Redressal
Kotak Securities Limited vs Shri Bharatkumar Ranchhoddas Rana on 8 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI (1) REVISION PETITION NO. 719 OF 2012 (Against the order dated 15.12.2011 in First Appeal No. 1072 of 2007 of the State Consumer Disputes Redressal Commission, Gujarat) Kotak Securities Limited Registered Office at: Bakhavar, First floor, 229, Nariman Point, Mumba1. ....... Petitioner (Original Opponent no. 1) Versus 1. Shri Bharatkumar Ranchhoddas Rana R/o Ramkrupa, Mota Parsiwad, Near Ice, Factory, Valsad-396001 2. Smt. Gulabben Bharatkumar Rana R/o Ramkrupa, Mota Parsiwad, Near Ice, Factory, Valsad-396001 3. Shri Chetan Dinesh Modi Proprietor of M/s Modi Fiancial Services Sai Keval, Jalaram Road, Valasad 396001. 4. Shri Authosh Pankajbhai Desai R/o 6/A, Shiva Krupa, Gitanjali Society, Teethal Road, Valsad -396001. ....Respondents
(Opponents) (2) REVISION PETITION NO.720 OF 2012 (Against the order dated 15.12.2011 in First Appeal No. 1071 of 2007 of the State Consumer Disputes Redressal Commission, Gujarat) Kotak Securities Limited Registered Office at:
Bakhavar, First floor, 229, Nariman Point, Mumba1.
....... Petitioner (Original Opponent no. 1) Versus
1. Shri Bharatkumar Motilal Rana R/o Makrupa, Mota Parsiwad, Agiyari Street, Valsad-396001
2. Smt. Madhuben Bharatkumar Rana R/o Makrupa, Mota Parsiwad, Agiyari Street Valsad-396001
3. Shri Chetan Dinesh Modi Proprietor of M/s Modi Fiancial Services Sai Keval, Jalaram Road, Valasad 396001.
4. Shri Authosh Pankajbhai Desai R/o 6/A, Shiva Krupa, Gitanjali Society, Teethal Road, Valsad -396001. ....Respondents (Opponents) (3) REVISION PETITION NO.918 OF 2012 (Against the order dated 15.12.2011 in First Appeal No.1039 of 2007 of the State Consumer Disputes Redressal Commission, Gujarat) Shri Chetan Dinesh Modi Proprietor, Modi Fiancial Services Sai Keval, Jalaram Road, Valasad 396001.
....... Petitioner Versus
1. Shri Bharatkumar Motilal Rana aged 49 Yrs. Occupation Service R/o Maa Krupa, Mota Pariswad, Agiyari Street, Valsad-396001
2. Mrs. Madhuben Bharat Kumar Rana aged 49 Yrs. Occupation Service R/o Maa Krupa, Mota Pariswad, Agiyari Street, Valsad-396001
3. Shri Authosh Pankajbhai Desai R/o 6/A, Shivkrupa, Gitanjali Society, Teethal Road, Valsad -396001.
4. Kotak Securities Limited 207, Sakar-2, Ellisbridge Corner, Opp. Town Hall, Ahmedabad.
....Respondents (4) REVISION PETITION NO. 1264 OF 2012 (Against the order dated 15.12.2011 in First Appeal No. 1039 of 2007 of the State Consumer Disputes Redressal Commission,Gujarat) Shri Chetan Dinesh Modi Proprietor, Modi Fiancial Services Sai Keval, Jalaram Road, Valasad 396001.
....... Petitioner Versus
1. Shri Bharatkumar Ranchoddas Rana R/o Ram Krupa, Mota Parsiwad, Agyari Street, Valsad-396001
2. Mrs. Gulabben Bharatkumar Rana R/o Ram Krupa, Mota Pariswad, Agyari Street, Valsad-396001
3. Shri Authosh Pankajbhai Desai R/o 6/A, Shivkrupa, Gitanjali Society, Teethal Road, Valsad -396001.
4. Kotak Securities Limited 207, Sakar-2, Ellisbridge Corner, Opp. Town Hall, Ahmedabad.
....Respondents (5) REVISION PETITION NO. 1487 OF 2012 (Against the order dated 15.12.2011 in First Appeal No. 1034 of 2007 of the State Consumer Disputes Redresdsal Commission, Gujarat) Shri Authosh Pankajbhai Desai Res.: 6/A, Shivkrupa, Gitanjali Society, Teethal Road, Valsad -396001. ......
Petitioner Versus
1. Shri Bharatkumar Ranchoddas Rana
2. Gulabben Bharatkumar Rana Both having Add:- Matrukrupa, Mota Pariswad, Agyari Street, Valsad-396001
3. Kotak Securities Limited 207, Sakar-2, Ellisbridge Corner, Opp. Town Hall, Ahmedabad
4. Chetan Dinesh Modi Owner of Modi Fiancial Services Add.: Saikeval, Jalaram Road, Valasad ....Respondents (6) REVISION PETITION NO.1488 OF 2012 (Against the order dated 15.12.2011 in Appeal No.1035 of 2007 of the State Consumer Disputes Redressal Commission, Gujarat) Shri Authosh Pankajbhai Desai Res.: 6/A, Shivkrupa, Gitanjali Society, Teethal Road, Valsad -396001. ...... Petitioner Versus
1. Shri Bharatkumar Ranchoddas Rana
2. Madhuben Bharatkumar Rana Both having Add:- Matrukrupa, Mota Pariswad, Agiyari Street, Valsad
3. Kotak Securities Limited 207, Sakar-2, Ellisbridge Corner, Opp. Town Hall, Ahmedabad
4. Chetan Dinesh Modi Owner of Modi Fiancial Services Add.: Saikeval, Jalaram Road, Valasad ....Respondents BEFORE:
HON'BLE MR.
JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER In RP Nos.719 & 720 of 2012 For the Petitioner : Mr. Abhinav Vashishth,Sr.Advocate with Mr. C.A. Sinha & Mr.Milan Negi, Advs.
For the Respondent : Mr. Vineet Sinha, Advocate for R-1 & 2 Mr. Ashish Kumar, Advocate for Mr. Jawahar Narang, Advocate for R-3 Mr. V.M. Pancholi, Advocate for R-4 In RP Nos.918 & 1264 of 2012 For the Petitioner : Mr. Ashish Kumar, Advocate for Mr. Jawahar Narang, Advocate For the Respondent : Mr. Vineet Sinha, Advocate for R-1 & 2 Mr. V.M. Pancholi, Advocate for R-3 Mr. C.A. Sinha, Advocate for R-4 In RP Nos.1487 & 1488 of 2012 For the Petitioner :Mr. V.M. Pancholi, Advocate For the Respondent :Mr. Vineet Sinha, Advocate for R-1 & 2 Mr. C.A. Sinha, Advocate for R-3 Mr. Ashish Kumar, Advocate for Mr. Jawahar Narang, Adv. for R-4 Pronounced on: 8th January, 2014 O R D E R PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Since common question of law and facts are involved, these revision petitions are being disposed of by this common order.
2. Case titled as Kotak Securities Ltd. Vs. Bharat Kumar Ranchoddas Rana and others (RP No.719 of 2012) is taken as the lead case.
3. Respondents No.1 and 2 who were the Complainants before the Consumer Disputes Redressal Forum, Valsad (for short,Consumer Forum) filed consumer complaints on the allegations that respondent no.1 is running a Grocery shop and is jointly holding a D-mat Account with respondent no.2 holding shares of certain companies. It is further stated that respondent no.1 came in contact with Petitioner/Opposite Party-Sh.Ashotosh Pankajbhai Desai (in RPs.No.1487 and 1488 of 2012) through his relative. Keeping in view the reputation of Petitioner-Kotak Securities Ltd. and Opposite Party-Modi Financial Service, respondent no 1 started business with them. As per directions of Sh.Ashotosh Pankajbhai Desai, respondent no.1 gave his entire share portfolio for portfolio management with a condition that the existing shares portfolio will be kept intact and with the day trading, whatever money will be earned by Mr.Ashutosh Pankajbhai Desai, will be passed on to the respondent no. 1. It is also alleged that Mr. Ashutosh Pankajbhai Desai did not take any action for opening an account with Kotak Securities Ltd. but he opened a separate account which amounts to deficiency in service. Respondent No.1 had been repeatedly asking Ashutosh Pankajbhai Desai to transfer the holding in his account which he did not do and retained all the shares in his account including those purchased and thereby keeping all the dividends and other benefits accrued on shares given by the companies with him(Ashutosh Pankajbhai Desai)only.
In the Consumer Complaints it was prayed that the opposite parties be directed to restore the shares existing in the name of respondents no.1 and 2 or to pay them entire amount along with interest.
4. The Complaints were contested by the opposite parties.
5. District Forum vide its order dated 21.7.2007, partly allowed the complaints.
6. Aggrieved by the order of the District Forum, opposite parties filed appeals before the Consumer Disputes Redressal Commission, Ahmedabad(for short, Consumer Commission) which dismissed their appeals, vide the impugned orders.
7. Hence, these revisions.
8. We have heard the learned counsel for the parties and gone through the record.
9. It is an admitted fact that the complainants had been indulging regularly in day trading of the shares.
10. Thus,the short question which arise for consideration in these petitions is, as to whether Respondents No.1 and 2/Complainants are Consumers or not, as per Section 2(i)(d)of the Consumer Protection Act,1986(for short, Act)
11. Expression consumer has been defined in Section 2 (1) (d) of the Act, which reads as under;
d Consumer means any person who,---
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation------ 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.
12. Respondents No. 1 and 2 have nowhere pleaded in their complaints that they doing the share business for self- employment. Nor, it has been pleaded that the services provided by petitioners-opposite parties were being availed of exclusively for the purpose of earning of their livelihood by means of self-employment. It is well settled that the disputes between the parties relating to commercial purposes, are excluded under the Act.
13. This Commission in Vijay Kumar Vs. Indusind Bank, II (2012) CPJ 181 (NC) has held;
Since, petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the over draft facility from the respondent, as such he would not be a consumer as per Section 2 (1) (d) (ii) of the Act. Moreover, regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit. Thus, this activity is purely commercial one and is not covered under the Act.
14. In the present cases, respondents no.1 and 2 have been trading regularly in the share business and the same being a commercial activity. Hence, respondents no.1 and 2 would not fall under the definition of Consumer as per the Act. Moreover, regular trading in the sale and purchase of the shares is a purely commercial activity and the only motive is to earn profits. Therefore, this activity being purely commercial one, is not covered under the provisions of the Act.
15. Accordingly, we hold that since respondents no.1 and 2 are not the Consumers as per provisions of the Act, both the Fora below have committed grave error in allowing their complaints. Consequently, we allow the present revision petitions and set aside the impugned order passed by the State Commission as well as the order of District Forum. With the result, the complaints filed by the respondents no.1 and 2 before the District Forum shall stand dismissed.
16. With these observations, the present revision petitions stands disposed of.
17. No order as to cost.
..J (V.B. GUPTA) (PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB/,