Ld. Advocate(s)
For Complainant: Debraj Das
For OP/OPs : None
Date of filing of the case :06.04.2017
Date of Disposal of the case :31.01.2023
Final Order / Judgment dtd.31.01.2023
Complainant Tapas Roy and Pratima Roy filed the present complainant against the aforesaid opposite parties under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and prayed for direction to the opposite parties to pay Rs.3,31,390.00(Rupees Three lakh thirty one thousand three hundred ninety) along with interest @ 12% per annum, compensation amounting to Rs.1,00,000.00(Rupees One lakh) and cost of the suit amounting to Rs.22,000.00(Rupees Twenty two thousand).
It is the allegation of the complainants that opposite parties gave assurance that if any one invests the money in their company he would get good return on maturity value. Being attracted with the said proposal OP No.1 & 2 purchased 115preferencial shares from OP No.1 valued at Rs.1,15,000.00 (Rupees One lakh fifteen thousand). Maturity date of the said shares was 09.07.2016.
Aforesaid shares were purchased in the name of Gourgopoal Roy who died living behind the complainant no. 1 &2 as legal heirs. Moreover complainant no.2 is the nominee of aforesaid shares.
After the maturity date complainants requested the OP No.1 to pay the maturity value of the aforesaid shares. But OP No.1 was reluctant to pay the maturity value.
On 31.01.2017 OP No.2 gave and undertaking that he would pay the redemption money if the complainants do not get the maturity value. But he also did not pay maturity value.
Hence this case.
OP No.2 contests the case by filing a W/V denying all the material allegations of the petition of the complaint. He contended that complainant is not the consumer under the Consumer Protection Act. He prays for dismissal of the case.
(3)
Trial
During trial complainant Protima Roy filed affidavit in chief and also filed certain documents.
Documents
Following documents have been produced on behalf of the complainant viz :
- Redeemable Cumulative Preference Shares issued by Jaig Polymers Ltd.......(Four sheets)........(Original)
- Acknowledgement Slip issued by Jaig Polymers Ltd......(Three sheets)....(Original)
- Written Undertaking by the OP NO.2........(One sheet)......(Original)
Brief Notes of argument.
Complainant in support of his case filed Brief Notes of Argument dtd. 18.10.2022.
OP No.3 in support of his case filed Brief Notes of Argument dtd. 07.11.2022.
Argument
Ld. Adv. for the complainant argued before this Commission that complainants purchased 115 shares from the OP No.1 valued at Rs.115000.00 and maturity date was fixed on 09.07.2016 but after aforesaid maturity date they did not get maturity value.
Ld. Adv. for the OP No.2 argued that complainant is not the consumer under the C.P. Act, 1986.
Decision with Reasons
It is the allegation of the complainants that 115 shares were purchased from the OP No.1 valued at Rs.1,15,000.00 and maturity date was fixed on 09.07.2016 but after aforesaid maturity date they did not get maturity value.
On perusal of four copies of redeemable cumulative preference shares (four copies) we find that complainants purchased 115 shares valued at Rs.1,15,000.00 and maturity date was fixed on 09.07.2016.
Complainant No.2 in her evidence as PW-1 corroborated the said fact. OP No.2 did not adduce any evidence. There is no counter evidence on record against the aforesaid evidence of PW-1. Moreover there is no counter document against the documents filed by the complainant. Accordingly we do not find any reason to disbelieve the evidence of the complainant.
OP No.2 in his argument stated that complainants are not the consumer under the Consumer Protection Act. He cited a decision of Hon’ble S.C.D.R.C in Anjan Kumr Mukherjee and Others VS Sri Dilip Kumar Basu dated 04.12.2014.
(4)
We have carefully gone through the said decision. We find Hon’ble S.C.D.R.C passed the said decision on 04.12.2014 Hon’ble Mr. Debasis Bhattacharya, Presiding Member and Hon’ble Member Mr. Jagonath Bag observed :-
“It cannot be said that his dealings in shares was for the purpose of maintaining his livelihood. The Hon’ble National Commission, vide its order dated 16-04-2014 in Revision Petition No.3367/2013, held that shares related disputes cannot be adjudicated by Consumer Fora. The Hon’ble Commission arrived at such decision after analyzing decisions of different Courts of Law, including the Hon’ble Apex Court, particularly, Special Leave to Appeals (Civil) No. 5401 of 2013, titled Ganpathi Parmeshwar Kashi & Arn. Vs. Bank of India & Anr.
This is a case of alleged cheating for which the remedy lies with the Criminal Court. As regards his other claims for compensation, damages etc., the same lies in the domain of the Civil Court. As such, there is no merit in the complaint case and accordingly, the same is liable to be dismissed. The impugned order, needless to say, is, bad in law.”
On perusal of record we find that complainant purchased shares from the OP No.1 through OP No.2. So it is very much clear before us that present dispute relating to shares of a company. Accordingly, in view of the said decision present complaint is not maintainable before this Commission.
He cited another decision reported in 2017 4 CPR(NC) 593. On perusal of the said decision we find that Hon’ble N.C.D.R.C. passed the said decision in M/S. Manosh Constructions Vs. L&T Finance Ltd. & Anr(First Appeal No.1621 of 2016) held:-
“I fully agree with the observation of the State Commission that the complainant cannot proceed under two Acts for the same grievance. It is true that Section 3 of the Consumer Protection Act envisages proceedings under the Consumer Protection Act as an additional remedy but it is clear that a person cannot proceed under two legal authorities under two different Acts for the same relief. Both the judgments relied upon by the learned counsel for the appellant seem to be inapplicable in the circumstances of the present case, as in those judgments, the arbitration proceedings, was not initiated whereas in the present case, the complaint has been filed during the pendency of the arbitration proceedings. Both the referred judgements only provide that in spite of the arbitration clause in the agreement, the proceedings under the Consumer Protection Act, 1986 are maintainable. As the proceedings under Arbitration Act are already going on the proceedings under Consumer Protection Act, 1986 cannot proceed simultaneously. This Commission has already decided this issue in number of judgments as mentioned below.”
In the said judgement Hon’ble N.C.D.R.C. mentioned that in M/s Magma Fincorp Ltd. Vs. Gulzar Ali, RP 3835 of 2013 decided on 17.04.2015 held as follows:-
(5)
“It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred”.
On perusal of record we find that OP No.2 filed one paper cutting . On the perusal of the same we find that one Arbitration proceedings in pending before the Arbitrator namely Pradeep Varma, Advocate High Court, Allahabad.
In view of the aforesaid decision of Hon’ble N.C.D.R.C. we find that as the Arbitration proceedings is pending before the Arbitrator, so the present complaint is not maintainable before this Commission.
Having considered the facts and circumstances of this case, evidence on records and documents on record we have no hesitation to hold that in view of aforesaid decisions the present complaint is not maintainable before this Commission.
In the result present case fails as it is not maintainable before this Commission. Hence,
It is
Ordered
that the present case be and the same is dismissed on contest against the OP No.2 and dismissed ex-parte against the OP NO.1 but without any order as to costs.
Let a copy of this order be supplied to the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) .................................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
