Haryana

StateCommission

A/1283/2017

KOTAK MAHINDRA BANK LTD AND ANOTHER - Complainant(s)

Versus

VIVEK SAGAR AND ANOTHER - Opp.Party(s)

PARAS MONEY GOYAL

14 Jan 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1283 of 2017

Date of Institution:      26.10.2017

Date of Decision :       14.01.2019

 

1.      Kotak Mahindra Bank Limited, Kotak Infiniti, Ground Floor, Building No.21, Infiniti Park, Off. Western Express Highway General A.K.Vaidya Marg, Maladd (East), Mumbai-400097.

2.      The Branch Manager, Kotak Mahindra Bank Limited, G.T.Road, Panipat.

                                      …..Appellants

Versus

 

Vivek Sagar s/o Sh. Late Prem Sagar, R/o B353, NFL Township, Panipat.

                                      …..Respondent

 

CORAM:             Mr.Ram Singh Chaudhary, Judicial Member.

                             Mrs. Manjula, Member                                                                                                                                               

Present:              Shri Hitender Kansal, Advocate for appellants.

Shri Deepak Kundu, Advocate for respondent.                         

 

                                                   O R D E R

 

RAM SINGH CHAUDHARY,JUDICIAL MEMBER:

 

This opposite party’s appeal is directed against the order dated May 3rd, 2017 passed by District Consumer Disputes Redressal Forum (for short District Forum), Panipat, whereby complaint under Section 12 of the Consumer Protection Act, 1986 (for short ‘the Act’), was allowed.

2.      Vivek Sagar-complainant was having saving account with Kotak Mahindra Bank and he asked the OP bank to get the demat account opened.  He contacted Mr. Amit Kr. Verma, who collected all the required documents to open the demat account of the complainant. Mr.Amit Kumar Verma assured him that demat account will be open by 30.05.2014 as 31.05.2014 was the last date for the scheme. The account was not opened. The application of the complainant for ESOP scheme was rejected.  On 11.06.2014, NFL has provided the shares to the employees @ Rs.25.65 each whose value aggravated upto Rs.47/-.  The complainant issued cheque to buy 7000 shares but on account of non activation of the demat account, he suffered the loss of Rs.1,35,450/-.  Thus there was deficiency in service on the part of the O.Ps.

3.      O.Ps. filed separate  reply controverting his averments and O.Ps alleged that OP bank collected the all relevant documents from the complainant on 28.05.2014 for opening the demat account. The documents were forwarded to Central processing department of the OP bank.  The Demat account was opened by the OP on 03.06.2014. The account was not activated. The trading account of the complainant was opened on 04.06.2014 and thereafter the demat account was  activated by the Panipat Branch of the OP on 08.07.2014. The demat account was activated by the OP bank only after the trading account was opened by Kotak Securities.  There was no delay in doing the same. Thus there was no deficiency in service on the part of the O.Ps.

4.      After hearing both the parties, District Consumer Disputes Redressal Forum, Panipat (In short “District Forum”) allowed the complaint vide impugned order dated 03.05.2017  and directed as under:-

“Accordingly, we hereby direct the respondent No.1 and 2 to compensate the complainant to the tune of Rs.1,35,450/- towards loss suffered by him and to compensation to the tune of Rs.3300/- for causing deficiency in services and mental harassment and under the head of litigation expenses.”

5.      Feeling aggrieved therefrom, opposite party No.1 and 2-appellants have preferred this appeal.

6.      The argument have been advanced by Sh.Hitender Kansal, the learned counsel for the appellants as well as Sh.Deepak Kundu, the learned counsel for the respondent No.1. With their kind assistance the entire records as well as the original record of the District Forum including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

7.      The solitary question which arises in this appeal is as to whether the complainant-respondent falls under the definition of ‘consumer’ provided in Section 2(d) of the Act, or not?

8.      Learned counsel for the respondent has argued that the employer offered a scheme for employees including  the complainant in the form of Employees Stock Option Plan and he requested the OP to get the demat account opened for purchasing of 7000 shares, but, the demat account of the complainant was not activated and he suffered loss to the tune of Rs.1,35,450/-. In support of his contention, reliance has been placed upon Jaimala Vs. M/s Reliance Portfolio Management 2016 (1 CPJ 658.

9.      The counsel for the appellant vehemently argued that respondent had opened the DEMAT account for commercial transaction for trading in shares. The sale and purchase of stock of shares does not fall within the ambit of consumer.

10.    In Special Leave to Appeal (Civil) No.5401 of 2013, Ganapathi Parmeshwar Kashi & Anr vs. Bank of India & Anr, decided on January 14^th, 2013, Hon’ble Supreme Court observed 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”.

11.    In view of the aforesaid factual and legal position, the complainant-respondent does not fall under the definition of “Consumer” as defined in the Act. So, the authority relied upon by the learned counsel for the respondent is of no help because facts of the said case were entirely on different footing than the case in hand. 

12.    There are sufficient grounds to accept the appeal and while accepting the appeal, the impugned order dated  03.05.2017 passed by the learned District Forum is set aside for all intents and purposes and the complaint is accordingly stands dismissed.

13.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

January 14th, 2019     Manjula               Ram Singh Chaudhary,                                              Member               Judicial Member                                                          Addl.Bench                   Addl.Bench                 

S.K.