INDRAVADAN CHOKSY vs HITESH DINESHCHANDRA MALI

THESE appeals involve same question and are by the same appellant who was original opposite party. The respondent is the original complainant. For the sake of convenience, we will refer the appellant as opponent and respondent as complainant. All these appeals are heard and disposed of together since they involve common question. The facts of Appeal No. 9/93 are as under :

THE complainant is residing with his parents and has approached the opposite party who was doing the business of purchase and sale of shares for the purpose to purchasing the shares for his father. THE complainant''s father Mr. Dineshchandra purchased the shares in the name of the complainant. It appears that same shares were sold and the share certificates alongwith the signed transfer deeds were given to the opposite party for delivery in the market. THE opposite party had promised that the price of the shares will be paid within 45 days. According to the figures given by the complainant an amount of Rs. 45,275/- was due and payable by the broker. THE opponent had given cheques on different banks as shown in the complaint of Rs. 25,525/- , Rs. 1,10,600/- and Rs. 9,000/- and when these cheques were presented in the Bank for realisation, the cheques were dishonoured and returned with the endorsement "returned for want of funds". THE complainant informed the opponent and requested to return the shares which he had given to him. However, the opponent gave a promise that within one month he will make the payment since his capital is logged in the business. It appears that thereafter the complainant purchased Special Steel right shares. THE complainant has also paid Rs. 1500/- for purchasing right shares for which the receipt was given by opponent. Inspite of demanding several times, the opponent neither gave the sale price nor returned the share certificate of special Steel or letter of allotment and hence the complainant requested the opponent to repay the price of the said shares but the opponent neither returned the shares nor the price thereof and started giving promises. THEreafter there were bonus issue of Steel shares -1:1. THE complainant was entitled to 20 shares. THE steel shares whose face value was Rs. 100/- were again divided into 10 shares and, therefore, the complainant was entitled to 200 Steel shares from the opponent. According to him the shares were quoted at Rs. 170/- per shares in the share market. THE complainant has filed this complaint and prayed for total amount of Rs. 95,574/- for the loss occurred to him on account of non-delivery of share price, non-delivery of right shares and bonus shares. The District Forum after perusing the records came to the conclusion that the complainant was duped by the opponent and the opponent did not pay the sale price of the said shares sold in the market. The cheques were given which were dis-honoured and, therefore, the complainant was entitled to the relief. The opponent has also failed to deliver the shares of Special Steel and the bonus shares and, therefore, the complainant was entitled to Rs. 95,974/- as prayed for.

Being aggrieved by this order the opponent has filed this appeal. Mr. Sanjanwala, the learned Advocate appearing for the appellant in all the matters raised the following contentions : (1) that on consideration has flown from the complainant to the opponent and hence the complainant is not a consumer within the meaning of the Act. (2) that no opportunity to file a reply or to cross-examine the complainant was given to the opponent the present appellant, and (3) that the case of the complainant is a fraud against the opponent.

WE will take the second contention first as to whether the opponent was given full opportunity to defend his case. Three complaints were filed before the District Forum. The particulars thereof are as under : Complaint No. 425 of 1991 Complainant : Hitesh Dineshchandra Mali " 426/91 Complainant: Hitesh Dineshchandra Mali Complaint No. 427 of 1991 Complainant: Ramilaben Hitesh Mali Now we will refer to the proceedings of the District Forum in Complaint No. 427/91. The complaint appears to have been filed on 30.8.91. Notice was issued to the opponent. The notice appears to have been served on Ushaben Chokshi on behalf of Indravadan Choksy, the opponent and the date for appearance fixed was 13.12.91. On that date the matter was adjourned to 27.12.91 on application of the opponent. Again, on 17.1.92 the case was adjourned on the application of the opponent. On 6.3.92 the matter was again adjourned on the application of the opponent. The complainant having been aggrieved by the adjournments gave an application on 27.3.92 requesting the Court to dispose of the matter since he has been amply harassed by the opponent by taking dates and not filing written statement. The complainant appears to have filed the affidavit on 3.4.92 alongwith an application and the District Forum has disposed of the complaint by judgment dated 1.5.92.

TO our opinion the proceedings clearly show that the present appellant has not cared to file any written statement, has obtained several adjournments and delayed the proceedings and, therefore, the District Forum had no alternative except to proceed without the written statement. There is no application made by the opponent for cross-examination of the complainant. It appears that the District Forum heard the arguments on 3.4.92 and kept the complaint for judgment. Even then the opponent has not thought it fit to approach the District Forum requesting the Forum to hear him or give him further opportunity. We, therefore, do not find any merit in the submission of Mr. Sanjanwala that the opponent was not given proper opportunity and/ or there is any breach of natural justice. The next question raised by Mr. Sanjanwala is that the complainant had not paid any consideration and, therefore, he is not a consumer shall have to be rejected. The brokers are selling or purchasing shares in their own name and the contracts between seller and the broker are principal to principal. While selling/ purchasing the shares, the sale price or purchase price include the commission. It is nobody''s say that the brokers are doing this business gratuitously. They are rendering financial services by taking commission. Therefore the relationship between the seller and the broker is the relationship providing service for consideration by charging commission. The complainant is, therefore, a consumer within the meaning of Section 2(i)(d) of the Consumer Protection Act. So far the fraud is concerned, we do not find any merits in the submission. On the contrary it appears that the complainant has delivered the shares and transfer deeds to the opponent who has neither returned the sale price thereof nor has stated anything regarding the shares and transfer deeds. He might have himself purchased the shares or might have sold it in the market. Again, in the case which we have quoted, the opponent had given cheques were also dishonoured. These facts clearly show that the complainant has been duped and there is no question of any fraud committed by the complainant. The opponent has failed to render the services or give the account of the shares sold by the opponent who has not returned, if released, his cheques were dishonured, and is, therefore, liable to the damages to the complainant. Mr. Sanjanwala has disputed the particulars regarding the shares. We cannot entertain this plea in absence of written statement or evidence. Mr. Sanjanwala stated that the appellant is not a registered share broker or a sub broker of a registered share broker and is not liable to trade in shares as alleged against him and hence following of unfair trade practice does not arise. This cannot be accepted. If the appellant represents himself as a broker to the public and if the complainant who relies upon such representation is cheated wherein he looses his bonus shares and money, this can be said to be unfair trade practice. In any case, the appellant has undertaken the service as broker and if he has committed deficiency, he would be responsible for the damages to the complainant. We, therefore, do not find any merits in any of the submissions of Mr. Sanjanwala.

LASTLY, so far the Appeal No. 11/93 is concerned, the appeal has been preferred against the Consumer Case No. 427/91. The Consumer Case No. 427/91 was filed by Ms. Ramilaben Dineshchandra Mali and not Hitesh Dineshchandra Mali. The judgment produced alongwith the appeal clearly shows that the complainant is Ms. Ramilaben D. Mali whereas the appeal is filed against Hitesh Dineshchandra Mali and, therefore, this appeal shall have to be dismissed on one more ground that the appeal is not filed against Ms. Ramilaben but has been filed against a wrong person and is liable to be rejected. We are, therefore, of the opinion that there is no merit in any of the appeals and same are dismissed with cost which we quantify at Rs. 500/- . ORDER The appeals are dismissed. The appellant will pay the respondent the cost which is quantified at Rs. 500/- . Appeals dismissed with costs.