PULOMAJA MISRA vs KAILASH CHAND GUPTA

BRIEF facts of the case are that the opposite party Kailash Chand Gupta, is proprietor of Kay Cee Investments. He represented to the complainant that he and his wife Smt. Urmi Gupta, were stock and share brokers and provided professional services on payment of brokerage in the sale and purchase of stock and shares. Relying on the said representation the complainant handed over 900 shares of Mc Leod Russel (India) Ltd., Calcutta as per details mentioned in Annexure-A to the complaint, on 23.2.1995 for sale. Towards the end of February, 1995 the opposite party informed the complainant that he had sold the said shares through registered broker Khaitan & Co. @ Rs. 280/- per share and the sale proceeds amounting to Rs. 2,50,119/- would be given to her after deducting the brokerage amount of Rs. 8,190/- by 15.3.1995. In spite of repeated reminders and personal visits the amount was not given. On a request of the opposite party, time for making the payment was extended upto June, 1996 subject to payment of interest @ 24% p.a. The complainant failed to receive the payment even by the extended date. The complainant got it confirmed from Khaitan & Co. regarding the sale of 900 shares belonging to the complainant and the said fact was confirmed by them by their letter dated 12.12.1995 (Annexure-B). It was also ascertained by the complainant that the sale proceeds of the shares had been duly credited to the account of the opposite party by M/s. Khaitan & Co. in their books of accounts. The complainant instituted a criminal complaint on 28.7.1996 against the opposite party in the Court of ACM. The respondent made an application for his discharge which was rejected and further proceedings would take place in the said criminal case. In order to create a totally false defence which was result of after-thought the opposite party got served legal notice dated 10.11.1997 on the complainant saying that 900 shares handed over to him were lying with him and that the complainant should settle the account with him. Copy of the illegal notice is Annexure-D. The complainant claimed the sale proceeds of the said equity shares besides Rs. 1 lac on account of compensation for mental pain and agony and Rs. 25,000/- on account of costs besides interest on the aforesaid amount @ 24%.

NOTICE of the complaint was sent to the opposite party by registered post. The registered envelope was not received back undelivered raising presumption of service. The opposite party, however, failed to appear. The complainant has filed her own detailed affidavit besides the various documents to which reference has been made in the above narration. We have gone through the record and have heard learned Counsel for the complainant. The facts averred in the complaint clearly go the show that the complainant had hired the services of the opposite party for sale of her equity shares on payment of brokerage. The facts further proved that the opposite party sold the said shares through M/s. Khaitan & Co. and received the sale proceeds amounting to Rs. 2,50,119/- and was liable to return a sum of Rs. 2,43,810/- after deducting Rs. 8,190/- as his commission/brokerage. The amount became due on the receipt of the consideration for the sale of shares. So far the amount has not been paid. The legal notice sent by the opposite party is not supported by another material on record and is, therefore, liable to be rejected out of consideration. The facts clearly prove deficiency in service on the part of the opposite party. Keeping the totality of facts and circumstances in view the complaint is allowed and the opposite party directed to pay to the complainant Rs. 2,43,810/- along with interest @ 18% p.a. from 15.3.1995 till date of payment. In addition to the aforesaid amount the opposite party shall further pay Rs. 15,000/- on account of compensation and costs. This order shall be complied with within four weeks of the receipt of a certified copy by the respondent failing which it will be open to the complainant to invoke the jurisdiction of the Commission u/Sec. 27. Copy of he order be sent to both sides. Complaint allowed.