State Consumer Disputes Redressal Commission
Pavuluri Mohan Rao Guntur vs India Bulls Securities Limited, Guntur on 25 March, 2009
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No. 81 OF 2006 AGAINST C.D.No.170 OF 2005 DISTRICT FORUM GUNTUR Between: Pavuluri Mohan Rao S/o late P.Ramaiah, Hindu aged about 40 years, Auditor, R/o 4-5-61/19, 2nd Line, Santhi Nagar Saibaba Road, Guntur-522 007 Appellant/complainant A N D India Bulls Securities Limited, Rep. by its Chief Branch Manager, F-5, P.M.G. Complex, Dr.No.5-87-182, 2nd Line, Lakshmipuram, Guntur-522 007 Respondent/opposite party Counsel for the Appellant: Sri S.Nagesh Reddy Counsel for the Respondent Sri S.Niranjan Reddy QUORUM: THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT SRI K.SATYANAND, MEMBER
& SRI R.LAXMINARASIMHA RAO, MEMBER WEDNESDAY THE TWENTY FIFTH DAY OF MARCH TWO THOUSAND NINE Oral Order ( As per Sri R.Laxminarsimha Rao, Member) *** This appeal is filed against the order of the Dist. Forum Guntur in C.D.No.170 of 2005.
The appellant herein is the complainant who filed the complaint before the District Forum that the opposite party propagated itself as a unique organization designed for smart investor and it provides world class access to a full range of service and products ranging from equities to mutual funds. The respondent entered into an agreement with the appellant in the month of March 2005 for trading of shares and securities in the market and at that time the respondent obtained the signature of the appellant on some blank papers promising the respondent that the blanks would be filled up later and the filled up form would be given to the respondent. The respondent was allotted unique code bearing No.GT 25. The appellant came to know that the respondent would be given permission from NSE and the appellant had to maintain clear balance in the account. The appellant maintained clear balance of Rs.2,40,000/- in his account. The respondent failed to furnish copy of agreement to the appellant despite several demands made by him. The respondent had not informed about the network connection with NSE. Two days prior to filing of the complaint the appellant received statement and contract notes showing his balance as Rs.68,944.55. The appellant immediately contacted the respondent who had not given any clarification of the decrease of amount in the account of the appellant and it amounts to deficiency in service on the part of the respondent. The appellant claimed Rs.2,40,000/- with interest, compensation of Rs.5,000/- towards mental agony and costs of Rs.3,000/-.
The respondent resisted the claim admitting the execution of the agreement by the appellant and stated that the appellant was informed that the respondent branch was fully made up for operation and connection was awaited as permission from NSE was not received for trading activities and the appellant was informed that he would be given intimation as soon as the connection was given to respondent. It is stated that as per clause 6-10 of the terms and conditions of the agreement the complaint is not maintainable and the dispute had to be settled through arbitration provided by the Stock Exchange. As per the byelaws of the National Stock Exchange of India Limited all claims and disputes between the trading members interse and between trading members and constituents arising out of or in relation to dealings will be submitted through arbitration.
Further it was submitted that the appellant got registered as a client of the respondent by duly signing the registration account opening form on 4.3.2005. The appellant is an auditor and is well aware of the rules and regulations and consequences of trading in shares in the stock exchange. The appellant deposited Rs.90,000/- through D.D. on 30.3.2005 and commenced trading operations on the same day and subsequently he deposited Rs.30,000/- on 4.4.2005 and also Rs.one lakh through cheques. The appellant did not deposit the amount on a single day and he was depositing the amount on different days and was maintaining stipulated balance in his account. The appellant sustained a loss in trading. The respondent is a deputed firm having 90,000 clients with a network 109 branch offices across the country and is a member of BSE and NSE.
It is further stated that all the transactions of the respondent are transparent and operated on internet and it provides to its new member with a PIN number sent directly by their head office. The client can change the PIN number. The company had sent the details of all the transactions regularly made by the appellant, through courier and some of the letters were received by Smt Pavuluri Annapurna whereas the other letters were returned as refused and the entire correspondence made by the head office of the respondent company. The appellant having sustained loss hatched up a plan to extract money from the respondent and gave false report against the respondent before the SHO P.S. Arundalpet and got registered a case in Crime No.104 of 2005 on 19.5.2005 and during the course of investigation the appellant filed a letter before the SI of police that if Rs.65,000/- be paid by the respondent, he would withdraw the complaint and the respondent accordingly had issued cheque for Rs.65,000/- in the name of the appellant. However the appellant had changed his mind and demanded Rs.one lakh from the respondent. The appellant agreed before the SHO PS Arundalpet that he would withdraw the complaint filed before the Dist. Forum after receiving cheque for Rs.2 lakhs from the respondent and even after receipt of the cheque on 24.8.2005 the appellant had not taken steps to withdraw the complaint.
Based on the evidence adduced i.e., Exs.A1 to A6 and Exs.B1 to B10, the District Forum dismissed the complaint.
Aggrieved by the order of the District Forum the complainant preferred this appeal on the grounds that the respondent had committed mischief in the course of transaction operations of the appellant and the District Forum failed to understand the unfair trade activity of the respondent in filing up of Ex.B9 which is a letter addressed by the appellant to the SI of police PS Arundalpet Guntur and how the original letter came into the possession of the respondent which was filed before the District Forum and the District Forum should have rejected the contention of the respondent that arbitration proceedings is a bar to the proceedings under the C.P. Act.
The point for consideration is whether there is any deficiency of service on the part of the respondent.
The admitted facts are the appellant had become the member of the respondent by executing an agreement containing terms and conditions thereof prescribing procedure for arbitration in case of any dispute between the parties thereto. It is also not in dispute that the appellant is an auditor and aware of the rules and regulations of the Stock Exchange. Further, it is not in dispute that the appellant opened his account on 4.3.2005 by depositing Rs.90,000/- through D.D. on 30.3.2005 and subsequently he had deposited Rs.30,000/- on 4.4.2005 through a cheque and Rs.one lakh also through a cheque and thus different amounts were deposited in his account by the appellant. It is also not disputed that the respondent provided the appellant with a PIN to open and have transactions in his account and the PIN so provided was furnished directly by the head office of the respondent company. When a PIN which is a secret code number was furnished to the appellant, the appellant was at liberty to change the secret code of his PIN in case he had apprehension that his account would be manipulated by the respondent or any others at the behest of the respondent company. The appellant has not disputed the transactions in his account made by him and as stated by the respondent.
The appellant had filed a criminal case in Crime no.104/2005 on 19.5.2005 with the police Arundalpet (ExB5) stating that he had trusted the respondent and entered share transactions by opening account with the head office of the respondent company and he had deposited an amount of Rs.2,40,000/- in his account. On 2.5.2005 when he received a copy of statement he came to know that the balance in his account was only Rs.68,944.55 and the respondent had not given any explanation for the decrease in amount in his account. Therefore the appellant submitted that it was an act of cheating on the part of the respondent and sought for taking action against the respondent u/s 406 and 420 IPC.
It is not clear as to whether the respondent was arrested and produced before the magistrate after the FIR was issued against him. It was contended by the respondent that during the course of investigation the appellant had come forward with a letter undertaking to withdraw his complaint provided the respondent does pay him an amount of Rs.65,000/- which the respondent paid and despite that the complaint was not withdrawn. A perusal of Ex.B6 letter dated 1.7.2005 written by the appellant to the SI Police, Arundalpet shows that the respondent had agreed to pay Rs.65,000/- which was paid by him and Ex.B7 is the receipt acknowledging the receipt of the amount of Rs.64,556.29 through cheque bearing No. 940923 drawn on HDFC Bank and issued by the respondent. Ex.B8 is the Xerox copy of the said cheque issued by the respondent company on 6.7.2005 in favour of the appellant. Therefore it is clear that the appellant had received Rs.65,000/- from the respondent company and the amount so received was paid by him to the respondent company at the time or prior to the receipt of the statement by the appellant from the head office of the respondent company.
The respondent had filed before the District Forum Ex.B9 letter addressed to the SHO PS Arundalpet stating that the respondent and he were compromised the matter consequently to which he had received Rs.one lakh towards full and final settlement. Relying Exs.B7 to B9 the respondent claimed that they are not due any amount nor was there any deficiency in service on their part and the appellant had unnecessarily proceeded with the case without putting forward any explanation in the teeth of Ex.B8 and B9. The respondent had issued letter Ex.B10 on 24.8.2005 promising the appellant that they would not take any legal action in respect of cheque No.570658 dated 5.4.2005 for Rs.2 lakhs against the appellant in view of settlement arrived at between them with regard to the withdrawal of consumer case.
The appellant had not denied receipt of the amount of Rs. 1,64,556.29 under Ex.B7 and B9. It is the consistent version of the respondent that the appellant had received the amount under EXs.B7 and B9. The appellant had not denied the receipt of the said amount and when Ex.B9 was issued towards full and final satisfaction of the claim, nothing is left for the complainant to proceed with in C.C. before the District Forum. The appellant faintly attempts to question the possession of the respondent over Exs.B7 and B9 without denying his signatures and receipt of the amount thereunder. In these circumstances we do not find any force in the contention of the appellant that he had not received back the amount from the respondent company.
It is pertinent to note that it is not the case of the appellant that Exs.B7 and B9 were got executed by him by playing fraud or by way of misrepresentation or coercive bargaining by the respondent company. Having executed the discharge voucher towards full and final settlement of his claim, the appellant cannot be heard to say that his claim survives yet. Therefore, we are inclined to dismiss the appeal though for a reason different from the one as cited by the District Forum. The finding of the District forum relegating the parties to civil court is not sustainable. In the circumstances of the case, the appeal is liable to be dismissed.
In the result the appeal is dismissed consequently the complaint is dismissed. There is no order as to costs.
PRESIDENT MEMBER MEMBER 25.03.2009