RAJESH AGGARWAL vs VIPIN KUMAR GOYAL

THE complainant was carrying on business of sale/purchase of company shares listed at Major Stock Exchanges in India. Opposite party No. 1 was Managing Director of M/s. Hy Fly Financial and Management Services Pvt. Ltd. THE opposite party entered into a contract with the complainant on 16.9.92 for the sale of 1.5 lac shares of Roshanlal Oil Mills Ltd. @ Rs. 8/- per share. Confirmation memo dated 16.9.92 was issued by the opposite party. THE complainant paid a sum of Rs. 48,000/- by banker''s cheque dated 16.9.92 as advance deposit against the said contract. Further case of the complainant is that the opposite party neither delivered the shares nor refunded the advance deposit even after closure of the right issue. THE complainant paid a large number of visits to their office but to no purpose. THE complainant claimed refund of Rs.48,000/- paid as advance deposit, Rs. 3 lacs on account of loss of net profit @ Rs. 2/- per share, Rs. 6 lacs on account of expenses incurred in pursuing the matter with the opposite party, another Rs. 5,100/- and Rs. 2,000/- respectively on account of expenses incurred in boarding and lodging and legal notices etc. and Rs. 20,000/- on account of mental agony suffered by the complainant.

A short reply was received from the opposite party by post in which it was stated that in view of the various transactions, which took place between the parties, the complainant owed to the opposite party a sum of Rs. 10,19,400/- besides interest and expenses. By order dated 17.9.93, defence of the opposite party was struck out. The opposite party made an application dated 28.9.93 for recalling the order striking out the defence and accepting the opposite parties written version. The National Commission has since settled the question and it has been laiddown that the Fora constituted under the Consumer Protection Act, has no power to strike out the defence. Reference in this connection be made to South Delhi Teachers Cooperative Group Housing Society v. Dr. Madhu Rathor, 1995 CCJ 1991 (NC). Even otherwise, the Commission took on record the written version dated 17.9.93. In the written version, a number of preliminary objections have been taken. It has been stated that the complainant is not a ''consumer'' and, therefore, the present complaint is not maintainable.

In an application dated 30.4.96, the father of the complainant stated that the complainant had died in a road accident on 9.12.95 and the father Mr. Hari Om Aggarwal was the only legal heir of the deceased. It was further prayed in the application that the case be decided according to law. Copy of the death certificate was enclosed.

AT the time of hearing, none appeared on behalf of the complainant''s legal representative. We have heard Mr. Gautam Kapoor, Advocate for the opposite party. The contention of Mr. Kapoor is that on his own showing the complainant was dealing in the sale and purchase of shares and the contract for the purchase of shares in question, had allegedly been placed with the opposite party as part of the said business. According to Mr. Kapoor, therefore, the complainant had entered into a commercial transaction and the case did not fall within the ambit of Sub-clause (i) of Section 2(1)(d) of the Consumer Protection Act. In the alternative, the contention is that the shares had been purchased by the complainant for re-sale and, thus, the transaction was excluded from the purview of Sub-clause (i) of Section 2(1)(d). Mr. Kapoor also submitted that the case being one for the purchase of shares, there was no question of the applicability of Sub- clause (ii) relating to hiring of services. We find force in the contention of Mr. Kapoor and, accordingly dismiss the complaint as not maintainable. The parties are left to bear their own costs. The legal representatives of the complainant may, if so advised, have their remedy according to law, in the Civil Court. A copy of this order be sent to both the parties. Complaint dismissed.