Anit Properties Pvt. Ltd. vs HDFC BANK LTD.

THE question of utmost importance in this case is, "Whether the complainant is a ''consumer'' -. This case will decide the above said three Original Petitions, bearing Nos. 306/2000, 308/2000 and 311/2000. The facts of these cases are similar and these cases are disposed of by one common judgment. Three different consumers filed the cases against one opposite party, HDFC Bank Ltd., on 18.8.2000. We have taken the facts from O.P. 306/2000.

ANIT Properties Pvt. Ltd., is a Company, incorporated under the provisions of the Companies Act, 1956. The complainant transacts the business to deal in properties, investments in shares, securities, etc. Centurion Bank, the opposite party, which was subsequently taken over by HDFC Bank Ltd., the opposite party applied for purchase of shares of Public Limited Companies on behalf of its customers, on certain terms and conditions. This is the service rendered by the opposite party to its customers/clients, opposite party also finances the purchase of the shares of the Company which the concerned customer/client is desirous of purchasing. In December, 1999 a Company, by the name and style of ''Television Eighteen India Limited, in short, ''TEIL'' was to come out with a Public Issue of Equity purchase of Rs. 10, each, at a premium of Rs. 170 per share. This Issue was to open on 16.12.1999 and close on 21.12.1999. The basis of allotment of shares announced by TEIL was 1.1% allotment on the total number of shares applied for. As per prospectus of TEIL, the entire amount of Rs. 180 per share was required to be paid at the time of applying for shares in the Public Issue. The complainant was required to pay a heavy amount of Rs. 3.15 crores. The complainant had made arrangement to pay the marginal money of Rs. 15.75 lakh and the complainant was to raise finance in the sum of Rs. 2,99,25,000, for applying for the said shares of TEIL. The complainant relying upon the advertisements, approached the opposite party, through a Broker, vis -Ã -vis, Kotak Securities, in short, ''KS'' for the loan, as it wanted to apply for 1,75,000 shares. The opposite party agreed to grant a loan of Rs. 2,99,25,000 to the complainant towards the subscription amount of Rs. 3.15 crores. The balance amount being the margin amount of Rs. 15,75,000 was to be paid by the complainant to the O.P.

THE complainant signed a number of documents. The complainant also deposited with O.P., a post -dated cheque for a sum of Rs. 2,99,25,000 in their favour towards payment of the loan at its maturity. The said amount was to be paid by the O.P. directly to TEIL while applying for the said shares. On 18.12.1999, the complainant paid a sum of Rs. 21,01,914.41 towards the margin money, interest, processing charges, service fees, etc. The said cheque was got encashed by the O.P.

ON 21.12.1999, the complainant through fax message, requested the O.P. to confirm that the applications for the said 1,75,000 shares, had been duly submitted by the O.P. to TEIL. No response was received. On 21.12.1999, the complainant was shocked to know from ''KS'', that O.P. had failed and neglected to apply for 1,75,000 shares of TEIL. ''KS'' handed over to the complainant cheque dated 21.12.1999 for the sum of Rs. 21,01,914.41 drawn by the O.P. in favour of the complainant by way of purported refund of the amount paid by the complainant to the O.P. On the same day, complainant protested vide fax message and desired confirmation from the O.P. but they did not respond. Letters dated 21.12.1999 and 23.12.1999 were also sent. The complainant submits that there was a concluded contract between the complainant and the O.P. The complainant had committed a blatant breach of contract by failing and neglecting to apply for the said 1,75,000 shares of TEIL. There is deficiency on the part of O.P. Consequently, the present complaints were filed before this Commission with the following prayers: (a) that this Hon''ble Commission be pleased to order and direct the opposite party to pay to the complainant, as and by way of compensation for the loss suffered by the complainant, a sum of Rs. 29,12,000 with further interest thereon at the rate of 21% per annum from 16.2.2000, till the date of filing of the complaint and thereafter till payment and/or realization and as per the particulars of claim being Ex. D, hereto;

(b) for the costs of the complaint;

(c) for such further and other orders and directions as this Hon''ble Commission deems fit and proper.

THE present, case was contested by the O.P. evidence was led by both the parties. The final arguments were heard. The key question is, "Whether the complainant is a "consumer?'', as per old law prevailing before 2003, when the amendment was not brought into force. In Morgan Stanley Mutual Fund v. Kartick Das, II (1994) CPJ 7 (SC) : (1994) 4 SCC 225, para Nos. 24, 25, 26, 27,.. 33, 34 and 35 are relevant. However, para Nos. 33, 34 and 35 are reproduced here, as under: 33. Certainly, Clauses (iii) and (iv) of Section 2(1)(c) of the Act do not arise in this case. Therefore, what requires to be examined is, whether any unfair trade practice has been adopted. The expression ''unfair trade practice'' as per rules shall have the same meaning as defined under Section 36A of Monopolies and Restrictive Trade Practices Act, 1969. That again cannot apply because the company is not trading in shares. The share means a share in the capital. The object of issuing the same is for building up capital. To raise capital, means making arrangements for carrying on the trade. It is not a practice relating to the carrying of any trade. Creation of share capital without allotment of shares does not bring shares into existence. Therefore, our answer is that a prospective investor like the respondent or the association is not a ''consumer'' under the Act.

From the above discussion, it is clear that the question of the appellant company trading in shares does not arise.

In view of our answers to Questions 1 and 2, it follows that the Consumer Disputes Redressal Forum has no jurisdiction, whatsoever.

THIS Bench has already taken a view that in matters of shares, the Consumer Fora have got no jurisdiction, in the case of A. Asaithambi v. Company Secretary, Satyam Computer Services Ltd. and Ors., IV (2012) CPJ 213 (NC) : RP No. 1179 of 2012, decided on 1.8.2012. In the said judgment, we have placed reliance on Vijay Kumar v. Indusind Bank, II (2012) CPJ 181 (NC), Som Nath Jain v. R.C. Goenka and Anr., reported in 1 (1994) CPJ 27 (NC), Kolkata State Consumer Disputes Redressal Commission''s order reported in Ramendra Nath Basu v. Sanjeev Kapoor and Anr., 1 (2009) CPJ 316, Delhi State Consumer Disputes Redressal Commission''s order reported in Anand Prakash v. A.M. Johri and Ors., III (2000) CPJ 291. Aggrieved by that order (dated 1.8.2012), Special Leave to Appeal (Civil) No. 36840 of 2012, titled A. Asaithambi v. Company Secretary, Satyam Computer Services Ltd. and Ors., was filed before the Hon''ble Apex Court. The Hon''ble Apex Court, dismissed the same; vide its order dated 14.12.2012.

THE Bench headed by Hon''ble Mr. Justice Ashok Bhan, in the case of Ganapati Parmeshwar Kashi and Anr. v. Bank of India and Anr., First Appeal No. 362 of 2011, decided on 21.8.2012, also took the same view. The Special Leave to Appeal (Civil) No. 22967 of 2012 filed before the Hon''ble Apex Court was dismissed, vide order dated 14.1.2013, the relevant extract runs, as follows: (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(6) 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.

IN another case, the Bench headed by Hon''ble Mr. Justice Ashok Bhan, in the connected matters, i.e. RP Nos. 4243 -4254 of 2011, decided on 30.8.2012, titled Chairman -cum -Managing Director, ONGC and Anr. v. Gurbir Singh Anand and Ors., took the same view. Against this order, Special Leave to Appeals (Civil) Nos. 8529 -8540, titled C.M.D., ONGC and Anr. v. Gurbir Singh Anand and Anr., were filed before the Hon''ble Supreme Court. The Hon''ble Supreme Court vide its order dated 1.3.2013, was pleased to hold: These petitions are directed against order dated 30.8.2012, passed by the National Consumer Disputes Redressal Commission, whereby the revision petitions filed by the petitioners were dismissed and the orders passed by District Consumer Disputes Redressal Forum, Vadodara and Consumer Disputes Redressal Commission, Gujarat, in the matter of the respondent''s entitlement to allotment of equity shares, under the Scheme of Equity, framed by ONGC were upheld.

We have heard Mr. Gourab Banerji, learned Additional Solicitor General appearing for the petitioners for some time and are prima facie satisfied that the dispute raised by the respondents could not be treated as a consumer dispute so as to confer jurisdiction upon the Consumer Forums to entertain the same. However, keeping in view trivial nature of the benefit given to the respondents, we do not consider it proper to interfere with the impugned order.

Consequently, we hold that this Commission is not armed with the jurisdiction to decide the case of shares. It cannot arrogate to itself that power which it does not enjoy. All the complaints are, therefore, dismissed. No costs.