R. WADIWALA & CO., & ORS. vs CHANDRAPRABHA SUMANTRAI DESAI, & ORS.

The present revision petition is directed against the order of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (''the State Commission'') in Appeal nos. 487 and 465 of 2009, whereby the State Commission had dismissed the appeal preferred against the order of the District Consumer Disputes Redressal Forum, Surat (''the District Forum'').

Briefly put, the facts relevant for the disposal of the revision petition are that the respondent no. 1 filed a consumer complaint against the petitioners as also Nilesh Shukla (HUF) and Nilesh Shukla, respondent nos. 2 and 3 (OP nos. 5 & 6) alleging that the complainant had executed contracts of selling shares through respondent nos. 2 and 3 of various shares of ACC Ltd., Glaxo India Ltd.,, Nestle India Ltd., Indian Hotels Co. Ltd., Southern Petrochemical Ltd., and BSES Ltd. The total sale price of which was Rs.4,64,524.18. Respondent nos. 2 and 3 traded these shares through petitioner no. 1 of which petitioner nos. 2 and 3 are partners and who are the sub broker of M/s G B Bhatt, broker on behalf of respondent nos. 2 and 3 (OP nos. 5 & 6). According to the complainant, despite transfer of these shares from her Demat account to the Demat account of petitioner no.1 the petitioner and respondent nos. 2 and 3 have failed to pay the entire sale consideration amount except Rs.90,000/- which was paid by the petitioners to the complainant from the account of respondent no. 2/OP no. 5.

Being aggrieved by the non-payment of the balance amount of Rs.3,74,524.18 the complainant filed a consumer complaint in the District Forum, Surat, seeking directions to the opposite parties including the petitioners to pay the balance consideration amount with 24% interest thereon, with effect from 15.03.2001. Besides Rs.25,000/- was claimed towards compensation for harassment, pain and sufferings.

The petitioners/ opposite party 1 to 4 on being served with the notice of the complaint filed the written statement resisting the allegations and stated that there was no privity of contract between them and the respondent no. 1/ complainant and as such they cannot be termed as service provider to respondent no.1. Respondent nos. 2 and 3 (OP nos. 5 and 6) neither appeared in response to the notice nor filed any objections or defence and were proceeded ex parte .

The District Forum on consideration of the pleadings and evidence allowed the complaint and directed the OPs including the petitioner as under:

"The complaint of the complainant is hereby allowed as under:

The opponent no.1 and 3 to 6 are hereby directed, jointly and severally, to pay to the complainant the sum of Rs.3,74,524.18 together with simple interest @ 9% per annum from the date of complaint till realisation;

The opponent no.1 and 3 to 6 are jointly and severally, directed to pay to the complainant the sum of Rs.10,000/- towards cost and compensation for mental tension;

The complainant is not entitle to any further relief;

The opponent should bear their own cost for this complaint;

The opponents should comply the order within 30 days from the date of order;

The copy of the order be supplied to the parties free of cost.

The above order is pronounced on 29.04.2009".

Being aggrieved by the order of the District Forum, the petitioners preferred an appeal no. 465 of 2009 in the State Commission, Gujarat. Respondent nos. 2 and 3 (OP nos. 5 and 6) also preferred an appeal no. 487 of 2009 against the order of the District Forum. The State Commission on re-appreciation of the facts dismissed both the appeals and confirmed the order of the District Forum. This has led to the filing of the present revision petition.

Learned counsel for the petitioner has contended that the orders of the Fora below suffer from material infirmity for the reasons that they have failed to appreciate that there was no relationship of consumer and service provider between the complainant/ respondent no. 1 and petitioners who were only acting as a sub broker of M/s G B Bhatt, (BSE) Broker on behalf of their clients, i.e., respondent no.2 on the instructions of respondent no.3. It is contended that even the transaction amount went into the account of respondent no.2/ OP no. 5 - HUF through cheques drawn in favour of respondent no. 2 but handed over to respondent no. 3. Thus, it is clear that respondent no. 1 is not the consumer of the petitioner and as such the Fora below have exceeded their jurisdiction in passing the order against the petitioner.

Mr Priank Adhyaru, Advocate for respondent no. 1/ complainant has argued in support of the impugned order. However, he has not been able to show any evidence which may indicate that there was a relationship of a customer and the service provider between the petitioners and respondent no.1/ complainant. In order to succeed against the petitioners, the respondent no. 1/complainant was obliged to establish the relationship of customer and service provider regarding which no cogent evidence has been filed or pointed out. Therefore, we are of the view that the respondent no. 1/ complainant has failed to establish the relationship of a customer and the service provider between the respondent no.1/ complainant and the petitioners/ opposite parties'' nos.1, 3 and 4 and as such the Fora below could not have taken the cognizance of the complaint against the petitioner.

On perusal of the record, we find that as per the allegations in paragraph 1 of the complaint, respondent nos. 2 and 3 (OP nos. 5 and 6) were providing their services as brokers to the respondent no.1/ complainant and there is nothing on record to suggest that there was any relationship of a customer and service provider on behalf of respondent no.1/ complainant and the petitioners who were acting as a sub-broker on behalf of M/s G B Bhat, broker. Counsel for respondent no. 1 has failed to show any cogent evidence which could indicate the relationship of a customer and service provider between the respondent no.1 and petitioners.

so far as the petitioners are concerned, respondent no.1/ complainant has failed to establish that she had hired or availed the services of the petitioners for consideration. That being so, the respondent no. 1 cannot be termed as a consumer qua the petitioners. This important aspect of the case has been ignored and over looked by the Fora below. Therefore, the order qua the petitioner cannot be sustained being without jurisdiction.

In view of the discussion above, we allow the revision petitions filed by the petitioner and the impugned order is modified as under:

The order against the petitioners/ opposite parties nos. 1, 3 & 4 is set aside and order against respondent nos. 2 and 3 (OP nos. 5 and 6) shall stand and respondent no. 1 shall be entitled to recover the amounts from respondent no. 2 and 3 (OP nos. 5 and 6) by moving the executing court.

The revision petitions are disposed of accordingly, with the directions to the State Commission to release the amount deposited by the petitioner in the State Commission as a pre-condition for stay against the execution along with accrued interest, if any.