National Consumer Disputes Redressal
Smt. Vimal Raosaheb Chougule vs 1. Stock Holding Corporation Of India ... on 24 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3601, 3603-3605 OF 2011 (Against the order dated 06.06.2011 in Appeal Nos.1622, 1624 to 1626/2007 of the State Commission, Maharashtra) Smt. Vimal Raosaheb Chougule Post-Ashta, Tal-Walva, Dist. Sangli Through Power of Attorney Holder Mr.Raosaheb Siddhappa Chougule R/o Ashta, Tal : Walwa District : Sangli (Maharashtra) ....... Petitioner Versus 1. Stock Holding Corporation of India Ltd. Branch Office Gomtesh, 111 Mahaveer Nagar, Sangli 2. Hemant Natwar Lal Shah Block No.4, Ist Floor, Preeti Apartments, Mehta Hospital Road, Timber Area, Sangli 3. Natwar Lal Manilal Shah Block No.4, Ist Floor, Preeti Apartments, Mehta Hospital Road, Timber Area, Sangli ... Respondents REVISION PETITION NO. 3602 OF 2011 (Against the order dated 06.06.2011 in Appeal Nos.1623/2007 of the State Commission, Maharashtra) Dr. Raosaheb Sidhapa Chougule Post-Ashta, Tal-Walva, Dist. Sangli Through Power of Attorney Holder Mr.Raosaheb Siddhappa Chougule R/o Ashta, Tal : Walwa District : Sangli (Maharashtra) ....... Petitioner Versus 1. Stock Holding Corporation of India Ltd. Branch Office Gomtesh, 111 Mahaveer Nagar, Sangli 2. Hemant Natwar Lal Shah Block No.4, Ist Floor, Preeti Apartments, Mehta Hospital Road, Timber Area, Sangli 3. Natwar Lal Manilal Shah Block No.4, Ist Floor, Preeti Apartments, Mehta Hospital Road, Timber Area, Sangli ... Respondents BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Pravin Satale, Advocate Pronounced on : 24th May, 2013 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Since identical facts and common question of law is involved, above noted revision petitions are being disposed of by this common order.
2. Brief facts are that Petitioners/Complainants Smt. Vimal Raosaheb Chougule and her husband Dr.Raosaheb Sidhapa Chougule had opened Demat Account with respondent no.1/O.P no.1 Stock Holding Corporation of India Ltd.
Respondent nos.2 and 3/O.Ps Nos.2 and 3 were looking after the transactions pertaining to the shares of petitioners. Respondent no.1 has prepared its own regulations for regulating the share transfer and other transactions of the shares. It is alleged that respondent no.1 has given the Delivery Instructions Slips for transfer of the shares in prescribed format to the petitioners. It is also alleged that petitioners were carrying out all transactions through broker. It is further alleged that officers of respondent no.1 on 16.6.2005 called the petitioner over telephone and enquired as to whether shares mentioned in the application form has been sold by her. Thereon, petitioner told them that she has not sold the said shares.
Thereafter, petitioner went to the office of respondent no.1 and realized that officers of respondent no.1 and respondent nos.2 & 3, herein collusion with each other committed misappropriation. In this regard, officers of respondent no.1 arranged joint meeting between the petitioner and respondent No.1. However, respondent No.1 did not pay the amount agreed in the said meeting to the petitioner. Petitioner during the said meeting learnt about the illegal transfer of her shares without her consent and withdrawal of the sale proceeds thereof by the brokers.
According to petitioner, such a large scale misappropriation/fraud was not possible for respondent no.1 alone without active support of its officers. Thereafter, petitioner lodged complaint against the brokers with Police.
Respondent no.1 has affected the transfer of the shares without verifying the signatures of the petitioner. Thus, respondent no.1 has acted irresponsibly and has rendered deficient service by transferring the shares of petitioner in favour of the brokers. Therefore, petitioners have prayed in their complaints that respondent no.1 be directed to transfer the shares in the name of petitioners.
3. Respondent no.1 in its written statement denied the averments made by the petitioners.
It is stated that petitioners blindly used to give signatures on Blank Papers to the brokers. All the share transactions were carried out through the brokers. The brokers were regularly coming to the office of respondent no.1 for the share transaction pertaining to the petitioners shares. Therefore, respondent no.1 believed that the application for Transfer of Share must have been made by the petitioner through broker. The detailed statement of account was being regularly sent to the petitioners from time to time. However, petitioners never opened these statements.
Had petitioners opened and perused the statements then they would have noticed misappropriation of the shares. Even otherwise, brokers alone are responsible for the cheating the petitioners and for no reason petitioners have implicated respondent no.1 in the present complaint. Further, petitioners in their complaints to the Police have complained against brokers only. Therefore, respondent no.1 is not involved in the fraud.
4. Despite service of notice, respondent nos.2 and 3 did not file their written statements before the District Consumer Disputes Redressal Forum, Sangli (For short, District Forum).
Accordingly, they were proceeded ex-parte.
5. District Forum vide order dated 23.10.2007, allowed the complaint of the petitioners and directed respondent no.1 to transfer the shares in the name of respective petitioners, alongwith payment of due dividend and compensation as well as cost.
6. Aggrieved by the order of the District Forum, respondent no.1 filed separate appeals before Maharashtra State Consumer Disputes Redressal Commission, Mumbai (short, State Commission). The State Commission, vide impugned order dated 6.6.2011, allowed the appeals of respondent no.1 and dismissed the complaints of the petitioners.
7. Hence, the present revisions.
8. We have heard the learned counsel for the petitioners and gone through the record.
9. It has been contended by learned counsel for the petitioners that respondent no.1 in collusion with respondent nos.2 and 3 have affected the transfer of shares on the basis of forged delivery instruction slip submitted by respondent no.2 in favour of respondent no.3, without verifying the signatures of the petitioners. Thus, respondent no.1 and respondent nos.2 & 3 in collusion with each other, have committed mis-appropriation. Hence, there is deficiency on the part of respondent no.1. Petitioners have also lodged FIR with the Police to this effect. It is further contended that it was the duty of respondent no.1 to verify the signature of the petitioners, which it had failed to do so. Lastly, it is contended that petitioners are the Consumer as defined in the Consumer Protection Act, 1986 (short, Act).
10. State Commission while allowing the appeals, in its impugned order observed ;
We particularly invited attention of both the parties as to locus standi of the complainants as a consumer in view of the judgment of the apex court in the case of Economic Transport Organization v/s Charan Spinning Mills Pvt. Ltd. 2010 CTJ 361 (SC) (CP).
Appellant/original opponent no.1 is a company which provides Depository facilities to investors within the meaning of the Depositories Act, 1996 and for that purpose is registered as a Depository Participant (in short DP) of National Securities Depository Ltd. (NSDL) and Central Depository Service Ltd. (CDSL). During the course of its business as a Depository Participant, it facilitates dematerialization of securities by the issuer companies.
Dematerialization is process by which a person who is holding security certificates converted into electronic balances and hold the same in his/its account with a D.P. This particular nature of services offered by the appellant company is not in dispute. Complainants Vimal and Raosaheb do not claim anything beyond hiring of such services from the appellant. Thus, it could be seen that the nature of services hired from the appellant and for which deficiency in service is alleged, relates to a commercial transaction i.e., trading in shares for profit or loss. Therefore, the services of the appellant being hired for commercial purpose, the complainants Vimal as well as Dr.Raosaheb are not consumers within the meaning of Consumer Protection Act, 1986 and, thus, the present dispute cannot be termed as consumer dispute. A useful reference can be made to In-re Economic Transport Organization (supra.
State Commission further observed ;
Referring to the impugned orders which are subject matter of these appeals it could be seen that the forum went on hypothetical basis rather than judicial assessment, and exhibiting their poor knowledge of law of evidence while drawing the adverse inference. They blissfully ignored the fact that the documents are stated to be not in possession of the appellants but in possession of the police authorities.
They further ignored the fact that the complainants themselves on whom the burden lies to establish their case never used the power within themselves vested under section 13 (4) of the Act either to discover or get produce the documents. No evidence is led by the complainants to prove alleged deficiency in service on the part of appellant/original opponent no.1. Under the circumstances, even on the facts, the finding of the forum cannot be accepted as far as alleged deficiency in service on the part of appellant/opponent no.1 is concerned.
It may be pointed out that it is the appellants officials, supra, who made enquiry on 16.7.2005 with the complainants and, thereupon, alleged fraud committed by the sub brokers was surfaced. It may be further pointed out and the fact which is not in dispute is that though the complainants received monthly statement from the appellant covering the transaction of transfer of shares from time to time, they all the while maintained silence and did not complain about the fraudulent transfer of shares.
It is also ignored by the forum that it is the case of complainants that their genuine signature taken on the blank papers by the sub-brokers were misused. Therefore, it is not the case of any false signature or tampered signature.
We also find direction given about re-transfer of shares as per impugned orders does not fall within the ambit of section 14 of the Act and, therefore, they cannot be supported in the eyes of law.
For the reasons mentioned above, impugned orders cannot be supported in the eyes of law. We hold accordingly and pass the following order :-
ORDER Appeal nos.1622/2007 to 1626/2007 are allowed.
Impugned orders dated 23.10.2007 passed in all the consumer complaint nos.277/06, 278/06, 279/06, 280/06 and 282/06 stands set aside.
In the result, all these consumer complaint nos.277/06, 278/06, 279/06, 280/06 and 282/06 stands dismissed.
11. The short question which arises for consideration is as to whether petitioners are Consumer within the meaning of Consumer as defined under Section 2 of the Act and whether averments made in the complaints falls within the purview of Consumer Complaint or not. In para No.1 of the complaint, it is averred ;
1. The complainant is the consumer of respondent no.1. The complainant has filed this Consumer Complaint against the respondent no.1 as the respondent no.1 have failed to render necessary services to the complainant by acting in collusion with one another, especially both the respondent nos.2 and 3 have colluded with the responsible employees & officers of respondent no.1 at their Sangli office. The respondents have thus, misappropriated the shares of complainant. When the misappropriation came to be revealed to complainant on 16.6.2005, the respondent nos.1 & 2 confessed their guilt to complainant. So, also officers from respondent no.1 conceded orally & directly the participation of some responsible officers in this failure amounting to fraud and misappropriation.
12. Thus, as per above averments, petitioners have made allegations of forgery, fraudulent transfer of shares as well as mis-appropriation against respondent no.1 as well as against respondent nos.2 and 3. Further, petitioners have also lodged FIR with regard to the above transactions with the Police. Therefore, as per these allegations, it shows that criminal offence if any, has been committed by the respondents. The consumer fora has no jurisdiction to deal with such type of complaints and the present dispute cannot be termed as a consumer dispute.
13. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
14. There is nothing on record to show that impugned order passed by State Commission is erroneous. The findings recorded by the State Commission that retransfer of the shares does not fall within the ambit of Section 14 of the Act, is based on correct analysis of the facts and appreciation of the evidence. There is no illegality or infirmity in the impugned orders passed by the State Commission.
15. Present petitions, under these circumstances are without any legal basis and not maintainable and same are hereby dismissed.
16. However, petitioners are at liberty to seek appropriate relief before the appropriate forum, if so desire.
17. No order as to cost.
..J (V.B. GUPTA) (PRESIDING MEMBER) ....
(REKHA GUPTA) (MEMBER) Sonia/