Chandigarh

StateCommission

A/138/2015

Sh. Guneet Bansal - Complainant(s)

Versus

LIC Housing Finance Limited - Opp.Party(s)

Pawan Bansal, Adv.

16 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	138 of 2015
Date of Institution	:	15.06.2015
Date of Decision	:	17.06.2015

 

Sh.Guneet Bansal son of Sh.Pawan Kumar Bansal r/o H.No.1206, Sector 44-B, Chandigarh.

……Appellant/Complainant

V e r s u s

1. LIC Housing Finance Ltd., SCO No.2445-46, 1st Floor, Sector 22-C, Chandigarh, through its Branch Manager.
2. Sharex Dynamic (India) Pvt. Ltd., Unit-1, Luthra Industrial Premises, Safed Pool, Andheri Kurla Road, Andheri (E), Mumbai-400072, through its Managing Director.
3. Sh.Birla Ram son of Sh.Tirth Ram, Preet Nagar, Ward No.12, Near Shiv Mandir Wali Gali, Malout, District Muktsar, Punjab.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh.Pawan Bansal, Advocate for the appellant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 18.05.2015, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant). However, liberty was granted to the complainant, to seek any other legal remedy, available to him, under law, for redressal of his grievance.

2.       The facts, in brief, are that, for investment purposes, the complainant purchased 500 shares of LIC Housing Finance Ltd. (Opposite Party No.1), bearing Certificate No.1306, from Opposite Party No.3 i.e. Sh.Birla Ram, on 15.03.2013, on payment of Rs.1 lac.  It was stated that Opposite Party No.1, appointed Opposite Party No.2, as its Registrar and Transfer Agent.  It was further stated that the complainant sent the said shares to Opposite Party No.2, for transfer thereof. It was further stated that, however, the said shares were returned by Opposite Party No.2, to the complainant, with the objection memo dated 24.06.2013, Annexure C-5,  that the “bank account number  was not mentioned, on the signature attestation”.  It was further stated that the complainant again sent the share certificate, the transferee deed alongwith other relevant documents, after compliance of the said objection, under registered cover, which were received by Opposite Party No.2 on 05.08.2013.  It was further stated that the said documents were again sent back to the complainant, by Opposite Party  No.2, with the remarks “transferor(s) signature differs from specimen signature(s) registered with the company. Please furnish fresh signature(s) and provide nationalized bank attestation, as per the format enclosed by it”. It was further stated that the complainant again sent the share certificate alongwith the transfer deed and other documents alongwith the attestation format, for specimen signatures of Opposite Party No.2, duly attested from the Branch office of State Bank of Patiala, Malout, where the transferor/seller i.e. Opposite Party No.3, maintained his account, which was received by it (Opposite Party No.2) on 07.12.2013. It was further stated that, however, Opposite Party No.2,  vide letter dated 16.12.2013 again returned the share certificate and the transfer deed, with the remarks that the “seller signatures on the transfer deed and bank attestation did not match and the same (transfer deed) was outdated”.  It was further stated that Opposite Party No.2 did not transfer the shares and had caused harassment to the complainant, by raising unnecessary objections. It was further stated that, as such, the complainant got served a legal notice dated 20.01.2014, Annexure C-9, upon Opposite Party No.2, which was replied to by it, vide letter dated 03.02.2014, stating therein that the signatures, on the transfer deed and attestation of signatures of Opposite Party No.3, on the same (transfer deed) by the Bank, did not match and also it was outdated.  It was further stated that, on the other hand, perusal of the letter dated 09.12.2013, Annexure C-10, clearly showed that the transfer deed dated 11.12.2012 (Annexure C-2) was not outdated. It was further stated that the complainant approached the Opposite Parties, through every possible means, but his grievance was not redressed by them.
3.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to transfer the share certificate, in his name; pay compensation, to the tune of Rs.2 lacs, on account of deficiency in rendering service, mental agony and physical harassment; and difference in the market value of shares, with interest and costs.
4.       Opposite Party No.1, in its written statement pleaded that since the complainant was engaged in commercial activity, as he admittedly bought the shares for investment purpose i.e. for commercial purpose, as such, he did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act. It was further pleaded that the District Forum had no territorial Jurisdiction, to entertain and decide the consumer complaint, as no cause of action accrued to the complainant, at Chandigarh.  It was stated that there since Opposite Party No.1 had not received any sale consideration, from the complainant, it had no privity of contract with him. It was admitted that Opposite Party No.1 had appointed Opposite Party No.2 as its Registrar and Transfer Agent. It was further stated that Opposite Party No.2 had performed its duties, in accordance with law. It was further stated that the signatures on the transfer deed was entirely different, from the record available with Opposite Party No.2, as a result where, the same (transfer deed) was returned, for further attestation of signatures of the transferor. It was further stated that the signatures on the transfer deed were not at all matching with the master record. It was further stated that the complainant had not suffered any financial loss. It was further stated that, in fact, the value of the shares had gone up, in the stock market. It was traded @ Rs.423/- per share, as on 19.12.2014, on the BSE Ltd. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.       Opposite Party  No.2, in its written version, took up almost the identical objections, as were taken by Opposite Party No.1. However, it was stated that the transfer certificate was returned to the complainant, under objection memos for the reasons, stated therein. It was further stated that that the complainant instead of following the due process required, in order to get the transfer deed attested due to the difference of signatures of the transferor, as per format provided to him, filed the frivolous complaint, before the District Forum. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2 nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6.       Opposite Party No.3, in his short reply, filed by way of affidavit, admitted the sale of shares of Opposite Party No.1, to the complainant, signatures on the transfer deed (Annexure C/2), which were later on attested by his banker, and also on the proforma sent by its banker, through him (complainant). It was stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7.       In the rejoinder, filed by the complainant, he reiterated all the averments contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1 and 2..
8.       The Parties led evidence, in support of their case.
9.       On 11.05.2015, when the consumer complaint was fixed for arguments, none put in appearance, on behalf of the complainant and Opposite Parties No.2 and 3. Accordingly, after hearing the Counsel for Opposite Party No.1 and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
10.       Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
11.       We have heard the Counsel for the appellant/complainant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully. 
12.       The Counsel for the appellant, submitted that the District Forum was wrong, in coming to the conclusion, that the complainant did not fall within the definition of a consumer. He further submitted that, no doubt, in the complaint, in paragraph No.1, it was stated by the complainant, that for investment purposes, he purchased 500 shares of LIC Housing Finance Limited (Opposite Party No.1), bearing certificate no.1306 and distinctive No.0468405586-0468406085, from Opposite Party No.3 i.e. Sh. Birla Ram, on 15.03.2013, on payment of Rs.1 lac, yet, that did not mean that he purchased the same for commercial purpose. He further submitted that, under these circumstances, by no stretch of imagination, it could be said that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act. He further submitted that the order of the District Forum holding that since the complainant did not fall within the definition of a consumer, and, as such, the consumer complaint was not maintainable, being illegal and invalid, is liable to be set aside.
13.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.Section 2(1)(d) and 2(I)(o), defining the ‘consumer’ and ‘service’   respectively  are extracted 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 then 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]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;]

Section 2(1)(o) defines service as under:-

(o) "service" means service of any description which is made available to potential 16 [users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

14.       It is evident from the definition of Section 2 (1) (d) of the Act, extracted above, that a person who avails of the services of the Opposite Parties, for commercial purpose, does not fall within the definition of a consumer. In the instant case, in the complaint, in paragraph No.1, it was stated by the complainant, that for investment purposes, he purchased 500 shares of LIC Housing Finance Limited (Opposite Party No.1), bearing certificate no.1306 and distinctive No.0468405586-0468406085, from Opposite Party No.3 i.e. Sh. Birla Ram, on 15.03.2013, on payment of Rs.1 lac. In the compliant, the complainant nowhere stated that he had purchased the shares, in question, for earning his livelihood, by way of self-employment. The complainant also did not state even a single word, in his complaint, as to what he was doing, at the time of investment aforesaid, and what was his source of livelihood. In M/s Steel City Securities Limited Vs. Shri. G.P. Ramesh and another, Revision-Petition No.3060 of 2011 decided on 03.02.2014, the respondents/ complainants had nowhere pleaded, in their complaint, that they were doing the share trading business for self-employment, nor it had been pleaded by them that the services provided by the petitioner, were availed of by them, exclusively for the purpose of earning their livelihood, by means of self-employment.  Under these circumstances, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the dispute between the parties related to commercial purpose and, as such, it was excluded under the Act.  In  Vijay Kumar Vs. Indusind Bank, II (2012) CPJ 181 (NC) it was held as under;

“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”.

15.       In M/s Sterlite Industries (India) Ltd.  Vs. Ganapati Finsec Pvt. Ltd., Revision Petition No. 3345 of 2012, decided on 12.07.2013, similar principle of law was laid down, by the National Consumer Disputes Redressal Commission, New Delhi. In Ramendra  Nath  Basu Vs. SanjeevKapoor & Anr., 1 (2009) CPJ 316 it was held that   transactions between the parties, qua share trading  did not come under purview of the Act. In Anand Prakash Vs. A.M. Johri & Ors., III (2000) CPJ 291, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that sale and purchase of shares being commercial transaction, so the complainant was not a ‘consumer’,  in such like cases.  In A. Asaithambi Vs.  Company   Secretary  Satyam  Computer Services Ltd. & Ors., Revision Petition No. 1179 of 2012, decided on 01.08.2012, a similar view was taken by the National Consumer Disputes Redressal Commission, New Delhi. The Hon’ble Supreme Court, vide order dated 14.12.2012, in Special Leave to Appeal (Civil) No. 36840 of 2012 (A.Asithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors.),  dismissed the case in limine. In Dr. V.K. Agarwal  Vs. M/s Infosys Technologies Ltd. & Ors. in OP No. 287 of 2001, decided on 24.07.2012, a similar view was taken by the National Consumer Disputes Redressal Commission, New Delhi.
16.       Not only this, in the complaint, in the prayer Clause, one of the reliefs, claimed by the complainant against the Opposite Parties, was the difference in the market value of shares, with interest and costs. This prayer clearly showed that the complainant was dealing in the sale and purchase of shares, with a view to gain profits, and that was why, he claimed difference in the market value of shares, with interest and costs. In similar circumstances, in Ganapati  Parmeshwar  Kashi  & Anr. Vs. Bank of India & Anr., First Appeal No. 362 of 2011, the National Consumer Disputes Redressal Commission, New Delhi, held as under:-

“Apart from this, State Commission also held that since the appellants had alleged that they had suffered loss as they could not trade due to suspension of accounts, were not consumers as the dispute related to loss and  profit from the share business of the appellants.

We agree with the view taken by the State Commission. Bank could not continue the Demat Account, in violation of the terms and conditions laid down by the NDSL and RBI.  Appellants had admittedly failed to furnish the identity proof by submitting copies of PAN cards, etc., as per directions of NDSL and RBI. For Demat Accounts, Respondent  Bank  is bound by the directions issued by NDSL and RBI. Dismissed”.

17.         The aggrieved party preferred Special Leave Petition, before the Hon'ble Supreme Court.  The Apex Court  dismissed  the Special Leave Petition, on 14.01.2013, while holding as under:-

 

“ii)  The concurrent  finding recorded  by the State Consumer Disputes  Redressal  Commission, Maharashtra and the National Consumer Disputes  Redressal  Commission   that   the   petitioners   cannot   be treated as ‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act, 1986, is based on analysis of the pleadings filed by the parties.   The  DMAT   Account   was   opened  by the petitioners purely for commercial transactions. Therefore, they were rightly not treated as ‘consumer’ so as to entitle them to claim compensation by   filing   complaint   under  the 1986 Act”.

18.       Since the services of the Opposite Parties, were availed of by the complainant, for commercial purpose, he did not fall within the definition of a consumer, and, as such, the consumer complaint was not maintainable. The District Forum was also right, in holding so. The order of the District Forum, thus, being legal and valid, is liable to be upheld.
19.       For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20.       Certified copies of this order, be sent to the parties, free of charge.
21.       The file be consigned to Record Room, after completion.

Pronounced.

17.06.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg