State Consumer Disputes Redressal Commission
1. The Managing Director vs P. Sahadevan on 21 December, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/150 (Arisen out of Order Dated 28/11/2011 in Case No. CC/09/47 of District Malappuram) 1. JRG SECURITIES REJI JACOB,J.R.G HOUSE.ASOK ROAD,KALOOR ERNAKULAM KERALA ...........Appellant(s) Versus 1. P.SAHADEVAN PULIYENCHERRY VEEDU,NILAMBUR.P.O MALAPPURAM KERALA ...........Respondent(s) BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 150/12
JUDGMENT DATED 21.12.2012.
PRESENT
JUSTICE SHRI. P.Q. BARKATH ALI : PRESIDENT
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANTS
1. The Managing Director,
Reji Jacob, J.R.G. Securities Ltd., J.R.G. House, Ashoka Road, Kalur, Kochi - 682 017
2. Complaince Officer, J.R.G. Securities Ltd., J.R.G. House, Ashoka Road, Kalur, Kochi - 682 017
3. J.R.G. Securities Ltd.,
J .R.G. House, Ashoka Road, Kalur, Kochi - 682 017
(Rep. by Adv.Cherunniyoor.T.K. Anandakrishnan
& Sreevaraham N.G. Mahesh)
Vs
RESPONDENTS
1. P. Sahadevan,S/o. Puliyencheri Madhavan Nair,
Puliyencheri Veedu, Nilambur(P.O.) Malappuram Dist.
2. Surendran V., Valiyaparambil House, Manalodi,
Nilambur P.O.) Malappuram District.
(R1 Rep. by Adv. Bimal V.S. & Ashraf.A)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER This appeal prefers from the order in C.C. No. 47/09 dated 28.11.2011in the file of CDRF, Malappuram by the appellants/opposite parties. The respondent No.1 is the complainant and the appellant prefers this appeal from the direction of the Forum below that to pay the opposite parties jointly severally an amount of Rs. 1lakh along with interest @12% and a cost of Rs. 200/- to the complainant.
2. In short, the complainant was holding shares of MRPL EO-100 reliance capable EQ-63 and other ceased concerns of the Reliance companies and later on checking the amount the complainant came to know that the shares of reliance enterprises E.Q-63 and reliance connections EQ 63 are missing or with his shares, were not his account anywhere. He preferred a complaint on 30.1.2008 to 4th opposite party. No reply received. He was then send a complaint on 29.3.08 to the Regional Manager SEBI, Chennai with copy to the SEBI's office at Mumbai. A reply was received which contents that the complaint was under consideration. In response to his repeated complaint on 20.5.08, an account statement was send by 4th opposite party along with photo copies of the delivery instruction Slip (DIS) bearing numbers 0385246 and 0385247 indicating that the complaint has sold the above shares used the above DIS. It is submitted that the complainant that he has not sold the shares and has not authorized anyone to sell the shares. The entire DIS given to the complainant at the time of opening depository account are still remaining with him unused. The share received directly by the complainant were dematerialized through opposite parties by submitting necessary applications through 3rd opposite parties. But the complainant never authorized to sell any shares. The 3rd opposite party functioned on behalf of other opposite parties. All the opposite parties have colluded in the act to create false documents and sell the shares. The complainant issued a lawyer notice to which opposite parties have send reply with the untenable contentions. The first opposite party is recognised by National Stock Exchange and Bombay Stock Exchange and is answerable to SEBI for illegal act. The complainant suffered the loss of Rs. 2,30,000/- and hence this complaint which alleged deficiency in service.
3. 1st 2nd and 4th opposite parties filed separate version and they had denied the entire allegations to the complainant. They challenged the maintainability of the complaint. The 3rd opposite party for that separate version and submitted that the 3rd opposite party is a franchise of the first opposite party. Other allegation in the complaint are denied with the 3rd opposite party has acted according to the instructions of 1st, 2nd, or 4th opposite parties has not cleared any forged documents when he is acted only franchisee to the first opposite party. He did not receive any monitory claim from the complainant and therefore not liable to compensate the complaint. The main contention of the other parties is they are only answerable to the SEBI and the Consumer Forum is not having any jurisdiction to entertain this dispute.
4. The evidence consist of the oral evidence of the complainant who was examined as Pw1 and marked Ext. A1 to A15. The counter affidavit filed by the 1st, 2nd and 3rd opposite parties. The 3rd opposite party filed separate counter affidavit. The documents marked as exhibits by the opposite parties. The complainant filed I.A. 170/2010 flimsy answers to interrogators. The answers were flimsy by the opposite parties.
5. The Forum below elaborately discussed all the points arised for consideration in detail on the basis of the hearing. Detail and entire evidence adduced by both sides and found that as per the Ext. A14 & A15 the complainant put forward a complaint and it is seeing that the opposite parties have committed deficiency in service. The first opposite party has claimed that to shift the responsibility of the 3rd opposite party and vice versa. The Forum below taken a view that the opposite parties are definitely committed the deficiency in service and unfair trade practice and their jointly and severally will be committing deficiency in service. In the result the Forum below passed the above order.
6. On this day, this appeal came before this Commission, there is a representation for the appellant and there is no representation for the respondent No 2, respondent number 1 appear through the counsel. The counsel for the appellant argued the appeal on the grounds of the appeal memorandum that the order passed by the Forum below is not accordance with the provisions of the law and evidence. It is not legally sustainable. He prays to allow the appeal and also to be dismissed the complaint. It is argued that the lower forum failed to consider the fact that the complainant will not come under the purview of sec. 2(1) (d) (2) of the Consumer Protection Act. It also pointed out that the Supreme Court and National Commission settled the position of law that this transaction is nothing but a commercial one and not come in the purview of the Consumer Protection Act. The counsel prayed to allow the appeal and also to dismiss the complaint by set asiding the order passed by the Forum below.
7. This Commission examined carefully the order passed by the Forum below and also perused each and every pieces of the evidence adduced by both sides. The Forum below elaborately discussed the entire points including the maintainability of the complaint and answered that the complaint is maintainable as per the law and evidence. As per the decision of the Supreme Court and National Commission the settled position is that the investment in the share is not an engagement for the livelihood of a investor. It is nothing but a transaction for a huge amount of profit migrating by investing money. But the transaction between this complainant and the opposite parties are not any way related with the settled position of law which held by the Supreme Court and National Commission.
8. In this case, the complainant alleged some irregularities caused by the opposite parties. Suppose a large scale company which is having a turn over of huge amount they purchase a car for the use of the personal purpose of the directors is coming under the purview of the commercial purpose. It is the settled position of the National Commission in the Reliance's case. In this case it is very clearly seen that the complainant approached to the SEBI but there was no remedy available from the SEBI and in the circumstance they compelled to approach to the Forum below under the head of the deficiency in service and unfair trade practice. As per the fact of this case the complainant who invested his hard earned money to get certain income for his livelihood and the livelihood of his family. It is not a commercial purpose. By considering the facts circumstance, and evidence of this case this Commission is seeing that the order passed by the Forum below is strictly accordance with the provision of the law and evidence. We uphold the decision of the Forum below. But this Commission decide to interfere in the amount ordered under the head of cost of the proceedings by the Forum below in the result portion.
In the result, this appeal is allowed in part and confirmed the direction to pay Rs. 1,00,000/- along with interest @ 12% p.a from the date of the complaint till the payment by the opposite parties to the complainant. This Commission set aside the cost of Rs. 2,000/- ordered by the Forum below.
The points of the appeal discussed one by one and answered accordingly.
The office is directed to send a copy of the order to the Forum below along with L.C.R. M.K. ABDULLA SONA : MEMBER JUSTICE P.Q. BARKATH ALI : PRESIDENT st [ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER