Krishan Lal Kalra vs Religare Security Ltd

APPELLANT /Complainant being aggrieved by impugned order dated 12.11.2010, passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission'') in (Consumer Complaint No. 56 of 2010), has filed this appeal.

APPELLANT ''s case is that he has been dealing with Respondents No.1 and 2/Opposite Parties No.1 and 2 through Respondents No.3/Opposite Party No.3 (authorized agent of respondent no.1) in the business of financing money for use in the share market. Appellant, accordingly entered into an agreement with respondents no.1 and 2. It is alleged that there due to unfair trade practices on the part of respondents no.1 and 2, appellant suffered a total loss of Rs.36,11,026/ - in respect of shares which were purchased by him on 16.5.2006 through the respondents, who illegally sold some of the shares without his consent. They further withheld some of his shares. Accordingly, a consumer complaint was filed before the State Commission.

THE consumer complaint was dismissed by the State Commission in limnie, being barred by limitation as well as on the ground that appellant is not a ''Consumer''. Being aggrieved by the impugned order, appellant has filed this appeal.

NOTICE of appeal was issued to all the respondents. Initially, all the respondents had put in their appearances. On 12.01.2015, when matter was listed for admission hearing, none was present on behalf of respondents no.1 and 2. Hence, they were proceeded exparte.

WE have heard the learned counsels for the petitioner as well as respondent no. 3 and gone through the record.

STATE Commission in its impugned order has observed; "Admittedly the opposite parties has sold the share of the complainant before the B.S.E. and N.S.E. on 17.10.2008, whereas the complainant has filed the complaint before this Commission on 19.10.2010 without moving any application for condonation of delay. The plea taken by learned counsel for the complainant that complainant received the said information on 20.10.208 is not acceptable because the share transaction is based on "On Line Networking" and the share -holders can watch their details of share transaction by using the internet on their Computer. The complainant has made false story just to take benefit of Limitation Act. The cause of action arose to the complainant on 17.10.2008 i.e. on the date of settlement whereas the complainant has filed the present complaint on 19.10.208 i.e beyond the prescribed period of two years as provided under Section 24 -A of the Consumer Protection Act, 1986.

It is well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action. Reliance is placed on the case titled as Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 wherein in para No. 12 of the said judgment it has been held by Hon''ble Apex Court. "12. Recently, in State Bank of India Vs. B. S. Agricultural Industries, 2009 4 JT 191, this Court while dealing with the same provision, has held as under: - 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ''shall not admit a complaint'' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed there under. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".

The present case is fully covered by the case law cited supra. Another question for consideration before us is whether the controversy involved in the present Complaint is a consumer dispute or not? The answer to this question is negative. It is well settled principle of law that the dispute with respect to the shares does not fall within the ambit of "Consumer Protection Act". Reference may be made to the case law cited as III (1992) Consumer Protection Judgments Page 75 (N.C.), II (1993) Consumer Protection Judgments page 216 (N.C.) and I (1994) Consumer Protection Judgments page 27(N.C.).

Similarly controversy has been decided by the Hon''ble State Commission of West Bengal in case law as Ramendra Nath Basu Versus Sanjeev Kapoor,2009 1 CPJ 412 wherein it has held as under: - Consumer Protection Act, 1986 Section 2(1) (g) Securities Share trading -Fixed return of share trading profit -Alleged amount agreed between parties not paid No negligence on part of O.P. proved Transaction between parties not come under purview of Consumer Protection Act Investors investing money in share trading with expectancy of earning profits, also undertake huge risk of loss, for which no one could be held responsible No relief entitled.

The facts of the present case are fully attracted to the case law cited. Under the facts and circumstances of the case we are of the view that the present complaint is not maintainable before the District Forum. Hence, it is dismissed in limine".

AS per appellant''s own case, the shares were sold on 15.10.2008 and settlement was made on 17.10.2008 without his knowledge. But, the consumer complaint was filed only on 19.10.2010. Thus, on the face of it, consumer complaint is barred by limitation as envisaged under Section 24A of the Act. Moreover, no application for condonation of delay was filed.

FURTHER , it is an admitted fact, that appellant had been indulging regularly in day trading business of the shares.

THUS , the short question which arise for consideration is, as to whether appellant is a ''Consumer'' or not, as per Section 2(i) (d) of Act.

EXPRESSION ''consumer'' has been defined in Section 2 (1) (d) of the Act, which reads as under; "d "Consumer" means any person who, - - - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; Explanation - - - - - - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self -employment".

APPELLANT has nowhere pleaded in its entire complaint, that he is doing the share business for self -employment. Nor, he has pleaded that the services provided by the respondents were being availed of exclusively for the purpose of earning of his livelihood by means of self -employment. It is well settled, that disputes between the parties relating to commercial purposes, are excluded under the Act.

THIS Commission in Vijay Kumar Vs. Indusind Bank, 2012 2 CPJ 181 has held; "Since, petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the "over draft facility" from the respondent, as such he would not be a consumer as per Section 2 (1) (d) (ii) of the Act. Moreover, regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit. Thus, this activity is purely commercial one and is not covered under the Act."

SINCE , appellant had been trading regularly in the share business and the same being a commercial activity, therefore appellant would not fall under the definition of ''Consumer'' as per the Act.

ACCORDINGL Y we hold, that the State Commission has not committed any jurisdictional error in passing the impugned order. Moreover, the complaint filed before the State Commission was barred by limitation. Thus, the present appeal is not maintainable and same is hereby dismissed with cost of Rs.5,000/ -(Rupees Five Thousand only).

APPELLANT is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission, within four weeks from today.

IN case, appellant fails to deposit the cost within the prescribed period, then he shall be liable to pay interest @ 9% p.a., till realization.

LIST for compliance on 13th March, 2015.