Order no. 17
The case of the complainant in brief is that the complainant opened a demat account to o.p. no.1 in the name of the complainant Mahesh Kumar Gupta and Santosh Kumar Gupta. The complainant is the holder of balancing shares – (1) Omax Auto Ltd. – 100 shares and (2) S M Dychem Ltd. – 1000 shares. Those shares are lying in the custody of o.ps. The complainant in the month of July, 2007 intended to transfer his own shares in the name of his brother Santosh Kumar Gupta and he filled up an application for closing the account and requested the o.p. no. to transfer the balance of securities to his brother. The complainant used to visit of the office of o.p. no.1, but o.p. no.1 did not entertain the complainant. The complainant, thereafter, made several attempts to contact of authorized representative of o.p. no.1 for solving the problems, but no fruitful result was achieved. The complainant further stated that he ultimately found that the office of o.p. no.1 was shifted to Howrah and the complainant pursued the matter there, but no fruitful result was achieved, on the contrary the complainant received a bill statement of account dt.1.1.17 to 6.4.17 showing that the amount of Rs. 9241.97 towards outstanding dues. The complainant though informed of closing the account to o.p. no.1 in the year 2007, but o.p. no.1 claimed the amount for the subsequent years. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. to withdraw all statement of accounts of bills showing outstanding dues of Rs.9879.81 and to transfer the shares as per the letter dt.6.7.07 as well as compensation and litigation cost.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint it was stated that the complainant had opened a trading demat account after executing all the necessary documents in the month of Jan. 2005. The complainant is not a consumer and the complaint is barred as per the provision u/s 2(d)(i)(ii) read with Sec 2(O) of the C.P. Act. The complainant was engaged in share trading in his account since 2005. The trading undertaken by the complainant is speculative in nature and speculative transactions and the service is availed and/or for commercial purpose i.e. to earn profit are not covered by the definition of the term ‘consumer’ u/s 2(1)(d) of the C.P. act. In this regard it has been alleged by o.ps. that National Stock Exchange on the basis of the letter issued by SEBI isused a circular dt.13.7.15 informing that the trading in shares fall within the scope of commercial transaction and any dispute arising solely out of commercial transaction may not fall within the scope of the C.P Act. The NSE had formulated their own comprehensive state of Rules and Regulations and Bye-laws for the securities market. As per the NSE Bye-laws under chapter XI reference to Arbitration, all claims or disputes between a member and a constituent is required to be decided by Arbitrator as provided under Rules, Bye-laws, Regulations of the stock exchange. So dispute between the complainant and o.ps. are required to be decided by the Arbitrator appointed by Exchange as per their Bye-laws. It is further stated by o.ps. that since the matter is pending from the year 2007-08, therefore the case filed by complainant is also barred by limitation since the complainant failed to file this case within two years from the date of commencement of the cause of action as alleged by the complainant. It was further stated that the complainant while was provided with the bills for charges the complainant in order to avoid the said fact filed this case for avoidance of payment of the necessary charges without having any cogent reason whatsoever. Accordingly, o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant was engaged in share trading?
- Whether the case is barred by limitation?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons :
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant opened a demat account to o.p. no.1 in the name of the complainant Mahesh Kumar Gupta and Santosh Kumar Gupta. The complainant is the holder of balancing shares – (1) Omax Auto Ltd. – 100 shares and (2) S M Dychem Ltd. – 1000 shares. Those shares are lying in the custody of o.ps. The complainant in the month of July, 2007 intended to transfer his own shares in the name of his brother Santosh Kumar Gupta and he filled up an application for closing the account and requested the o.p. no. to transfer the balance of securities to his brother. The complainant used to visit of the office of o.p. no.1, but o.p. no.1 did not entertain the complainant. The complainant, thereafter, made several attempts to contact of authorized representative of o.p. no.1 for solving the problems, but no fruitful result was achieved. The complainant further stated that he ultimately found that the office of o.p. no.1 was shifted to Howrah and the complainant pursued the matter there, but no fruitful result was achieved, on the contrary the complainant received a bill statement of account dt.1.1.17 to 6.4.17 showing that the amount of Rs.9241.97 towards outstanding dues. The complainant though informed of closing the account to o.p. no.1 in the year 2007, but o.p. no.1 claimed the amount for the subsequent years. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps. to withdraw all statement of accounts of bills showing outstanding dues of Rs.9879.81 and to transfer the shares as per the letter dt.6.7.07 as well as compensation and litigation cost.
Ld. lawyer for the o.ps. argued that the complainant had opened a trading demat account after executing all the necessary documents in the month of Jan. 2005. The complainant is not a consumer and the complaint is barred as per the provision u/s 2(d)(i)(ii) read with Sec 2(O) of the C.P. Act. The complainant was engaged in share trading in his account since 2005. The trading undertaken by the complainant is speculative in nature and speculative transactions and the service is availed and/or for commercial purpose i.e. to earn profit are not covered by the definition of the term ‘consumer’ u/s 2(1)(d) of the C.P. act. In this regard it has been alleged by o.ps. that National Stock Exchange on the basis of the letter issued by SEBI isused a circular dt.13.7.15 informing that the trading in shares fall within the scope of commercial transaction and any dispute arising solely out of commercial transaction may not fall within the scope of the C.P Act. The NSE had formulated their own comprehensive state of Rules and Regulations and Bye-laws for the securities market. As per the NSE Bye-laws under chapter XI reference to Arbitration, all claims or disputes between a member and a constituent is required to be decided by Arbitrator as provided under Rules, Bye-laws, Regulations of the stock exchange. So dispute between the complainant and o.ps. are required to be decided by the Arbitrator appointed by Exchange as per their Bye-laws. It is further stated by o.ps. that since the matter is pending from the year 2007-08, therefore the case filed by complainant is also barred by limitation since the complainant failed to file this case within two years from the date of commencement of the cause of action as alleged by the complainant. It was further stated that the complainant while was provided with the bills for charges the complainant in order to avoid the said fact filed this case for avoidance of payment of the necessary charges without having any cogent reason whatsoever. Accordingly, o.ps. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant opened a demat account in the year 2005. The complainant has stated that in the year 2007-08 he asked the o.ps. to transfer the shares in the name of his brother Santosh Kumar Gupta, but o.ps. did not comply the said request and o.ps. did not close the account of the complainant. It appears from the materials on record that the complainant has urged that he was not informed regarding the shifting of the office of o.ps. for which he could not keep any contact with o.ps. Subsequently after getting an information of a contact person of o.ps. he came to learn that the office of o.ps. has shifted to Howrah. It appears from the materials on record that the said transaction took place in the year 2007-08 and since the demat account was opened by the complainant for the purpose of share trading and the complainant has not pleaded in the four corners of the petition of complaint that the said trading was being made for the purpose of their livelihood, therefore as per the judgment as reported in Vijay Kumar vs. Indus Ind Bank, II (2012) CPJ 181 (NC) passed by Hon’ble National Commission we hold that the case is not maintainable. It is further found from the materials on record that the transaction relating to the shares took place in the year 2007-08 and the case was filed in the year 2018. Therefore by sending letter subsequently for saving the limitation cannot give any right to the complainant to file the case to bypass the provision as laid down in the C.P. Act that in case of any deficiency in service or unfair trade practice the case is to be filed within two years. But after the lapse of eleven years the complainant filed this case. Apart from the said fact the complainant for the purpose of redressal of his grievance could have agitated the same before NSE or SEBI and as per the guidelines of NSE an Arbitrator is to be appointed to look into the grievance of the complainant. The complainant has not availed the said Forum. From the record it appears that the complainant has not paid necessary charges to o.ps. for maintaining demat account with o.ps. It appears from the materials on record that whenever the bills were raised by o.ps. for demanding the amount the complainant by manufacturing a case has filed this case which is hopelessly barred by limitation as well as there is clear bar in entertaining the case as laid down in the C.P. Act in respect of share trading. Having regard to the facts and circumstances of the case we hold that the case filed by the complainant is hopelessly barred by limitation as well as this Forum has no jurisdiction to entertain such case whenever the complainant failed to plead in the petition of complaint that he was involved in the said business as self employment for livelihood. In view of the facts and circumstances of the case we hold that the case filed by the complainant is riddled with so many defects, thereby we are not inclined to pass any order in favour of the complainant and as such, the case is to be dismissed. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No. 262/2018 is dismissed on contest without against the o.ps.
