DOLPHIN LABORATORIES LIMITED vs D.CHANDRASEKAR

THIS appeal is directed against the order dated 17.12.1996 in O.P. No. 62/95 on the file of the District Consumer Disputes Redressal Forum, Madurai. The appellant is the 2nd opposite party while the respondents 1 and 2 are respectively the complainant and the 1st opposite party. After the filing of the appeal, the 2nd respondent/1st opposite party had been given up.

THE complainant, it appears, took a demand draft for Rs. 1,500/- in favour of the 2nd opposite party for allotment of shares in his name. THE 1st opposite party, it appears, acted as an agent of the 2nd opposite party. Despite the fact that the demand draft had been taken in favour of the 2nd opposite party for allotment of shares, no allotment of shares had been made and such act of the opposite party, in such circumstances, the complainant would say amounts to deficiency in service calling for action under the relevant provisions of the Consumer Protection Act, 1986. The opposite party, in pith and substance would contend that there was no deficiency in service on their part at all on the facts and in the circumstances of the case inasmuch as the actions complained of, can by no stretch of imagination be construed as a consumer dispute calling for action under the Act. The complainant, if at all, can have his grievance redressed before a Civil Forum.

The Forum below allowed the complaint and the operative portion of its order is reflected in paragraph 8 and it reads as under : "In the result, this complaint is allowed by directing the opposite parties to refund the sum of Rs. 1,500/- to the complainant with interest at the rate of 18% per annum from 16.5.1994 till this date of order which comes to Rs. 699/- and the petitioner entitled to claim interest at the same rate till the payment by the respondents and also to pay a sum of Rs. 1,500/- as compensation for mental agony and hardship suffered by the petitioner with costs of Rs. 500/- of this complaint. Time for payment one month from the date of this order."

AGGRIEVED by the order as above, the 2nd opposite party resorted to the present action by engaging a Counsel of their choice learned Counsel Mr. M. Chandrasekaran. On service of process, the 1st respondent/ complainant did not enter appearance by engaging a Counsel of his choice and virtually remained absent. The fact that he is absent does not mean that we cannot dispose of the appeal on merits of course after hearing learned Counsel appearing for the appellant and on perusal of the materials placed on record and that is exactly what we have done in this case.

EVEN at the outset we may point out that the appeal deserves to be allowed on the facts and in the circumstances of the case on the face of the decision emerging from the Apex Court of this country in Morgan Stanley Mutual Fund v. Kartick Das, II (1994) CPJ 7 (SC). In the said decision, the Apex Court categorically laid down the dictum that "A fortiori, an application made for allotment of shares cannot constitute goods". The Supreme Court further held that before the allotment of shares, the applicant cannot at all be construed to be a consumer under the relevant provisions of the Act. On the face of the dictum laid by the Supreme Court as above, it goes without saying that the individual complaints by the respective complainants before the Forum below are not sustainable in law. In this view of the matter, the order of the Forum below deserves to be set aside and we accordingly do so. In fine, the appeal is allowed; the order of the Forum below is set aside and the complaint itself is dismissed. It is, however, open to the complainant to resort to action being taken against the opposite parties in a Civil Forum for the recovery of the money so paid if they are so advised. We make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.