K.P. LEELA, ADVOCATE vs ANEJA FINANCIAL CONSULTANCY SERVICES

-THE case of the complainant as seen from the complaint is as follows : THE complainant obtained the Portfolio management services for investment in shares from the opposite party i.e. Aneja Financial Consultancy Services. THE opposite party promised to sell and purchase shares on her behalf by investing the amount received from the complainant and also promised to advance loan in equal amount paid. THE complainant paid Rs. 10,000/- towards investment. THE opposite party promised that he will make windfall profits and investor can become a millionaire within 3 to 6 months and promised to advance a loan of Rs. 25,000/-. THE opposite party neither invested the amount paid by the complainant nor advanced any loan and the complainant sustained loss of Rs. 10,00,000/- (ten lakhs) due to negligence of the opposite party. Complainant, therefore, claimed a sum of Rs. 9,00,000/- with interest from the date of award till realisation, and costs.

THE version of the opposite party as could be seen from the counter is that the complainant paid a sum of Rs. 10,000/- on 7.12.90 and the same was credited to her account but it is unimaginable how she can claim Rs. 9 lakhs, on the investment of Rs. 10,000/- and did not claim Rs. 9 Lakhs in the notice issued by the complainant dated 17.7.91. At the request of the complainant on 28.7.91 the account was settled at the lower rate prevailing on 24.7.91 and an amount of Rs. 4,000/-was paid by cheque on the same day. On 31.7.91 a full and final settlement was made and it was found that the complainant was entitled to a sum of Rs. 15,673.00 which was paid by cheque dated 24.8.1991 and the same was acknowledged by the complainant in full and final settlement and 100 shares of Super forgings were returned to her. In addition to the aforesaid settlement the complainant with a view to harass the opposite party, filed a complaint before the Commissioner of Police which was forwarded to the Crime Branch, Team No. 4, Basheerbagh, Hyderabad. Although, the opposite party was not liable to pay anything with a view to get the matters settled and to purchase peace they arrived at a final and full settlement and the opposite party agreed to pay the amount of Rs. 22,500/- and the same was evidenced by settlement cum receipt dated 8.9.91 and the opposite party issued five different cheques for payment of Rs. 22,500/-. THE above cheques were encashed by the complainant. But, she again filed a police complaint afresh in April, 1992 and started demanding payment of some more amount. It was also stated that as the opposite party refused to pay any further sum, she filed C.D. Nos. 442 and 443/92 in the District Forum, Hyderabad and the same was dismissed on 31.12.1992. Hence the opposite party submitted that the complaint is not maintainable as: (1) the complainant settled her account fully and finally on 8.9.1981; (2) She filed C.D. Nos. 442 and 443/92 in respect of the same dealings and the present complaint is not maintainable as it is barred by res-judicata, under Order 2 Rule 2 CPC; (3) the complainant is not a consumer and the transactions in question are of commercial nature as they relate to purchase and selling of shares; (4) the complainant is a member of the Share Trading Facility of the opposite party and cannot be said to have hired the services of the opposite party; and (5) lastly the claim is purely for settlement of accounts and is not maintainable in the Forum. In reply to the above, the complainant apart from denying the allegations made in the counter submitted that she claimed nine lakhs of rupees on the promise of the opposite party that one can become a millionaire within a short time. According to her she was forced to accept less market rate even for settlement. Account was prepared subsequent to that settlement. According to her, the letter of full and final settlement dated 24.7.1991 is forged on blank papers on which her signature has been obtained. She lodged a complaint to the police for non-compoundable and non-cognizable offence. She denied that a cheque issued by her for Rs. 6000/- had bounced. She further submitted that the cases C.D. Nos. 442 and 443/92 were dismissed as the opposite party managed the President of the District Forum. She further stated that the so called full and final settlement cannot take away the right of claiming compensation. She submits that she is a consumer and is entitled to maintain the complaint.

On behalf of the complainant, alongwith the complaint, Exs.A.1 to A4 and also third party affidavit were filed. On behalf of the opposite party Ex. B1 to B.15 were filed. No oral evidence was adduced by both the parties.

THE main questions that arise for consideration are whether there is any full and final settlement of accounts between the parties on 8.9.1991; (2) Whether the complaint is barred by res judicata under Order 2 Rule 2 CPC as the complainant has filed C.D. Nos. 442 and 443 of 1992 in the District Forum and the same were dismissed; and (3) Whether the complainant is a consumer within the meaning of the Consumer Protection Act, 1986. The first and foremost question to be decided is whether there is any full and final settlement between the parties. It is not in dispute that the complainant paid a sum of Rs. 10,000/- for investment and became a member of the Shares Trading facility of the opposite party. In order to decide this question it is necessary to refer to some documents filed. Ex.A.1 filed by the complainant shows that she paid a sum of Rs. 10,000/- to the opposite party by Cheque No. 382540 dated 7.12.90 on the State Bank of Hyderabad. Some shares were also sold and the amounts realised were shown and the service charges were also shown. Ex.A.2 is a phamplet issued by the opposite party. It shows that some facilities were given to members who became annual members of the opposite party. The minimum investment was shown as Rs. 1000/- and the loan facility was shown as equal to the investment and a maximum loan would be Rs. 25,000/- per member. It also mentioned the settlement of accounts for each quarter and some provision was made for withdrawal of cash. In the phamplet Ex. A.3 issued by the opposite party it is mentioned that the opposite party is share market experts and for earning maximum profits they may be approached. Ex. A.4 is issued by the opposite party. In that it was mentioned that share market presents many opportunities to make money and become rich. A wise investor can earn lakhs and be a millionaire within a short period. The opposite party as Port folio managers can earn maximum profits for the person who invests. The other terms and conditions with regard to the investment, loan and all other things were mentioned in Ex. A.2.

EX. B.1 shows that the complainant became a member of the scheme of the opposite party Aneja Financial Consultancy Services on 28.6.1990. In EX. B.2 dated 10,7.91 the complainant issued a notice to the opposite party. In the said notice it was mentioned that she joined as a member of the Consultancy on 28.6.90 and invested Rs. 10,000/-. But the opposite party failed to render accounts for the quarter ending 30.9.90. She also mentioned that she filed a case in the Consumer Forum C.D No. 591/90 and the same was withdrawn on the assurance given by the opposite party to render proper accounts in future. It was also mentioned that she invested further a sum of Rs. 36,000/- in all. Since the opposite party failed to show the account, the complainant demanded the opposite party to render accounts supported with receipts within three days from the date of the receipts notice, failing which action would be taken for rendition of account and also for compensation of Rs. 3 lakhs. EX.B.3 was signed by both the parties. In that letter it was stated that the Portfolio investment account was to be monitored by the opposite party to the best of their ability to show good performance, and to reduce the loan account of the complainant to Rs. 50,000/- gradually. Alternative Saturdays the complainant would go and collect fortnightly copy of her account. It was further stated that the complainant can withdraw at any time from the membership and the account shall be settled within one month of giving such notice. Thus, it is clear that after the letter dated 10.7.91 the complainant continued to be a member and both of them have agreed to monitor portfolio investment and to reduce the loan element. The complainant gave notice EX.B.4 dated 28.7.91 to the opposite party to settle her account and her brother''s account. EX. B.5 is the receipt issued for the money received on account of settlement of her account. EX. B6 is the receipt passed for settlement of her brother''s account. EX. B.7 was a receipt issued by the complainant on 31.7.91. It shows that the complainant received share certificates of Super Forgings and Steels Limited and a cheque for Rs. 15,673 dated 24.8.91 in full and final settlement of her account from the opposite party. Thereafter the statement of account was prepared from 28.6.90 to 12.8.91 and was sent by the opposite party to the complainant which is EX. B.9. In EX. B.8, the complainant acknowledged the account from 28.6.90 to 12.8.91, two transfer deeds duly signed for Super Forgings Limited; (3) Refund order for Rs. 1000/- of Geeta Polymers Limited and Cheque for Rs. 6000/- issued by the complainant. According to the opposite party, inspite of such settlement she made a complaint to the police and to avoid harassment from the police, and to purchase peace that a full and final settlement was arrived at between the parties and the same was signed by the complainant and witness, which is marked as EX. B.10 and in EX.B.10. It is mentioned that EX. B.10 is a settlement cum receipt. In the body of the letter it was mentioned that after detailed discussion it is agreed to have a full and final settlement of all claims in respect of investment, profits, compensation amicably by accepting the following payments. The number of the cheques with dates were mentioned for a total amount of Rs. 22,500/-. According to the opposite party, the complainant has encashed those cheques. In the reply, the complainant did not specifically deny the settlement arrived at on 8.9.81 and also the letter said to have been written by her on the even date to the Inspector of Police, Crime Branch, Hyderabad. This settlement was supported by a letter bearing the same date, dated 8.9.91 EX.B.l 1 addressed by the complainant to the Inspector of Police, Team No. 4, C.I.11, Crime Branch, Hyderabad. In the said letter it was stated "I wish to inform you that I have arrived at an amicable settlement and have settled the accounts in full and final. Therefore, I request you to close the matter and I hereby withdraw my complaint. I thank you for your kind cooperation. I have now no further complaint against M/s. Aneja Financial Consultancy Services." Thus, it is clear that she wrote a letter to the Inspector of Police stating that there was amicable settlement and accounts were settled fully and finally and requested the Inspector of Police to withdraw the complaint. Although it was specifically mentioned in the counter that there was full and final settlement on 8.9.81 and different cheques were issued and were acknowledged, the complainant did not specifically deny the same, in the reply affidavit filed by her. It was merely stated in para 4 and 5 of the reply affidavit that all the statements made in para 6 of the counter are false and concocted. Similarly with regard to para 7 it was stated that all the allegations made for false and misleading. The Sub-Inspector of Police infact reprimanded the opposite party. There is no specific denial by the complainant about the settlement arrived at on 8.9.1981. The letter EX.B.ll written on the same date to the Crime Branch Inspector clearly mentioned that a settlement was arrived at and requested to withdraw the complaint. It is next submitted by the complainant that a mere passing of a receipt for full and final settlement does not mean that the complainant gave up all her claims with regard to the loss of profits, compensation for misleading etc. In support of the contention, the learned Counsel-complainant appearing in person relied on the decision of the National Commission in Col. Bhim Singh v. Regional Manager, National Insurance Company, I (1992) CPJ 205 (NC)=III 1992 (1) CPR 439; wherein the complainant insured a Mare ''Private Pleasure'' with the opposite party for a sum of Rs. 2 lacs. The mare fell ill and the opposite party was intimated accordingly. The mare died on 12.2.1989. The complainant lodged claim for the entire amount of rupees 2 lacs i.e. for the amount for which it was insured. After passing of 30 months the Insurance Company settled the claim and paid the amount. Subsequently, thereafter the complainant filed the complaint which is the subject matter of decision claiming punitive damages for harassment and consequential physical and mental strain amounting to Rs. 20 lacs. The opposite party resisted the claim that the amount of Rs. 2 Lacs already was paid under the policy in full and final settlement and that therefore the complainant is not entitled to any relief. It was submitted by the complainant that "At the time of issue of cheque, the applicant as denied the cheque without giving an undertaking of full and final settlement. The applicant received the cheque as there was no alternative but sign as directed or otherwise wait for due payment indefinitely and suffer further harassment." The National Commission held that full and final payment in this context pertains to receipt of insured value and not to the prayer of the applicant for interest, travel expenses and punitive damages for harassment mental and physical strain etc. It also held that payments were often delayed with a view to coerce the insured into giving a receipt in full and final settlement of the claims of the insured. It, therefore, accepted the statement of the complainant that he did not give the discharge at the time of receiving the cheque for Rs. 2 lacs, willingly and voluntarily and that he had no choice but to give discharge as desired by the Insurance Company. It further held that full and final settlement means termination of liability under a contract and under the contract of Insurance Policy in this case. In fact, the expression in full and final settlement is equivalent to discharge. Discharge is termination liability under a contract by executing an instrument of receipt for payment. Since the claim in the subsequent complaint related for damages or compensation or loss suffer by the consumer due to negligence of the opposite party which is a liability arising not under the Contract of insurance but under the Consumer Protection Act. It, therefore, held the claim for damages, compensation, interest is not a bar as there was delay in payment of the insurance amount. But the facts of the above case which was the subject matter of the decision of National Commission are different from the facts of the instant case. In the instant case, the complainant paid a sum of Rs. 10,000/- to the opposite party and that the opposite party promised to invest her money and make huge profits and that he also promised to advance loans for purchase of shares and to settle accounts once in three months. But contrary to the aforesaid promises, he did not wisely invest the money and did not advance loans and thereby, the complainant suffered loss of Rs. 9 lacs. It is to be seen that the opposite party sent statement of accounts in Ex. B.9 and the same was acknowledged by the complainant under Ex. B 8 dated 20.8.1991. No doubt the receipt was issued earlier on 31.7.1991 i.e. Ex.B.7, which reveals that it is full and final settlement of account from the opposite party. But, it is the case of the complainant that this was obtained on a blank paper signed by her. In Ex.B.10 it was clearly mentioned that a full and final settlement of all claims in respect of investment, profits and compensation were amicably settled and an amount of Rs. 22,500/- was accepted in full and final settlement. It is, therefore, clear that the settlement is not only in respect of any particular amount said to be due from the opposite party but it is in full and final settlement of all claims in respect of investment, profits, and compensation. Since on the same day, the complainant wrote a letter, Ex.B.11 to the Inspector of Police, wherein it was mentioned that an amicable settlement was arrived at and accounts were settled in full and final and requested the Inspector of Police to close the case and withdraw her criminal complaint. Thus, it is clear from the aforesaid documents that the complainant has settled not only with regard to accounts but also with regard to her investments, profits and compensation. That the complainant claiming in this complaint is the loss of profits. According to her but for the negligence of the opposite party, she would have made a profit of Rs. 9 lacs. As the settlement cum Receipt Ex.B. 10 clearly mentions that the parties arrived at full and final settlement with regard to profits, compensation and loss, of the matter, the aforesaid National Commission''s case has no application to the facts of this case.

THE complainant also relied on the decision in H.R. Gill v. Suryavanshi Kshatriya Davati Samaj and Others, II (1991) CPJ 705=1992 (1) CPR 647 of Maharashtra State Consumer Disputes Redressal Commission, Bombay. In the said case, H.R. Gill took a marriage hall on 7.3.90 for wedding and reception of his son to be performed on 5.6.90 and paid an amount of Rs. 3001/-. Subsequently, the opposite party taking advantage of the situation demanded payment of Rs. 800/- towards utensil charges. THE complainant offered to make payment by cheque. Without accepting the said cheque, the opposite party taking undue advantage of the situation switched of the power on the ground floor and that the guests and the invitees taking food faced a total black out. THE complainant persuaded the opposite party to accept the cheque and for which a receipt was issued by the complainant. Claiming that the act of the opposite party amounts to deficiency of service while hiring out the hall and also amounts to extracting of money from the consumers taking undue advantage of their helplessness on such occasions. THE complainant prayed for refund of Rs. 800/-paid on 5.6.90 with interest as he was compelled to pay. THE District Forum held that for a small gain the management indulged in unfair trade practice. It also exhibited the situation by putting forth unreasonable and unjustified demand with a view to extract more money. It therefore, allowed the complaint. It is clear form the narration of facts that in that case the Gill was almost compelled to pay the amount to the opposite party as it threatened to switch of the power and thereby causing inconvenience to the guests invited for the function. But, in the instant case as could be seen from the complaint there was no allegation or reference to any settlement arrived at, on 8.9.91 and that she was coerced or threatened by the opposite party to accede to the said settlement. It, therefore, cannot be said that the complainant was compelled or coerced to enter into any settlement. Moreover, the circumstance that she wrote on the same day to the Inspector of Police to withdraw the complaint filed by her shows that there is settlement arrived at amicably between the pasties relating to all disputes. For all the aforesaid reasons/we are of the view that the complainant and the opposite party together on 8.9.91 arrived at full and final settlement of claims relating to profits and compensation.

IT is next submitted by the opposite party that the complainant cannot invoke the jurisdiction of Consumer Forum, as she is not a consumer within the meaning of the Consumer Protection Act, that the complainant has not hired the services of the opposite party and that therefore there is no deficiency of service. From the various letters referred to supra it is clear that the complainant invested her money with the opposite party and also entrusted shares as Port folio manager to look after her interests wisely to invest the same and earn profits. For the services to be rendered to the complainant, the opposite party has charged commission, which is not disputed. Once the opposite party charges commission and undertakes to render service and look after the interests of the complainant, the complainant is a consumer who has hired the services of the opposite party for consideration for rendering service. According to the complainant there is deficiency in service rendered by the opposite party. Hence we are of the view and hold that the complainant is a consumer and is entitled to maintain the complaint. The further contention of the opposite party that the transactions in question are of commercial nature and that therefore the complainant is not a consumer is not tenable. It is only under Section 2(d)(1) the definition of Consumer is that a person who buys any goods for consideration and does not include a person who obtains such goods for resale or for any commercial purpose. There is no such embargo in respect of hiring or availing of any services. The complainant is therefore a consumer and the complaint is maintainable.

It is next submitted by the opposite party that the claim is purely one for rendition of accounts. A reading of the complaint shows that the claim of Rs. 9,00,000/- is to be the loss sustained by the complainant on account of the negligence of the opposite party in not investing the amount and also in not advancing the loans. Thus, it is clear that the prayer in the complaint is not for settlement of account but towards the probable profits that have been earned, had the opposite party wisely invested the amounts properly. The complainant appearing in person relied on the decision in Kishore Kumar Chunnilal Talpada v. Gujarat Narmada Auto Limited, 1992 (2) CPR Guj. 250. In the said case it was held that the complaint cannot be dismissed even before notice on the ground that the complainant made a demand for accounts. But, it can only be dismissed if it is found to be frivolous and vexatious. In the case above mentioned, it was found that the complainant did not ask for accounts. The facts disclosed from the complaint clearly show that the complainant has been agitating as he was asked to pay more price than the fixed price by the manufacturing company. Hence it was held in the said decision that the complaint is maintainable. The complainant also relied on a decision of the Tamil Nadu in Branch Manager, LIC of India and Another v. V. Ramayya and Another, 1993 (2) CPR 22 wherein it was held that an ambiguity or doubt in a contract of Life Insurance has to be construed against the Insurance company. The above decision has no application to the facts of this case. She also relied on a decision in Doshiwada v. Jai Kishan Bhai Bapalal Nirmal, II 1992 (1) CPR 312 of the Gujarat State Commission wherein it was held that a person offering procurement of loan which are not found to be genuine and charging brokerage from gullible customers through advertisements indulging in unfair trade practice is liable to be held for damages under the Consumer Protection Act. In this case as we have already held that the complainant is a consumer. But has accruing at a settlement she would have been entitled to compensation or damages. It is the submission of the complainant that the opposite party made false promises that within a short period he will make millionaire of the persons who invest money with him to invest in shares. Reliance is placed on Ex.A.4. In Ex.A.4 it was stated that the Share market presents many opportunities to make money and become rich. A wise investor can earn lakhs and be a millionaire within a short period. It was also stated that as a Port folio manager he would earn maximum profits for the person that invests. But no promise can be culled out from Ex.A.4. to the complainant. It was merely mentioned that there are many opportunities to make money and to become rich and can earn profits in lakhs and can become a millionaire, within a short period. It, therefore, cannot be said that there is any promise made by the opposite party. It cannot also be denied that the complainant was lured by the opposite party to make investment as he said that he would make huge profits. The complainant, therefore, submits that the opposite party cheated her. But the question whether the opposite party cheated her and liable to pay damages are complicated questions of law which involves a detailed enquiry into it. It is appropriate that the matter be rushed it in a Civil Court.

IN view of our above findings, that there is full and final settlement relating to profits and compensation also, in respect of the investment made by the complainant, it is not necessary to go into the question whether this complaint is barred by res judicata or under Order 2 Rule 2 CPC in view of the decision of the District Forum rendered in C.D. Nos. 442 and 443 of 1992 dated 31.12.92. For all the aforesaid reasons, the complaint is dismissed. There shall be no order as to costs. Complaint dismissed.