R.R. Equity Brokers Pvt. Ltd. vs Dinesh Kumar Jaiswal

BEING aggrieved by order dated 8.5.2012, passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur, Rajasthan (for short, ''State Commission''), Petitioners/Opposite Parties have filed the present revision petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act''). Brief facts are that Respondent/Complainant filed a Consumer Complaint before the District Consumer Disputes Redressal Forum, Jaipur -I (for short, ''District Forum'') stating that he has a trading account No. 20100024 with Petitioner No. 1, through which he used to do Sale -Purchase of the shares. It is alleged that respondent did not carry out any transaction from the aforementioned trading account in August, 2008, despite that petitioners on 17.9.2008, demanded an amount of Rs. 9,242 stating to be a debit balance. On being contacted Petitioner No. 2, admitted that transactions of some other accounts had been shown in his account and the same would be corrected soon and promised not to demand any amount. It is further alleged that despite the promise, nothing was done and thus respondent suffered loss of Rs. 60,000. Therefore, due to the acts of the petitioners, respondent also suffered mental agony, which amounts to deficiency in service and unfair trade practice. Hence, respondent prayed for a decree of Rs. 2,76,000.

BEFORE the District Forum, petitioners filed their reply as well as affidavit but the same were neither signed nor attested. The District Forum vide order dated 8.11.2011, partially allowed the complaint and held: "That the respondent will not demand Rs. 9,242 from the complainant. Apart from it to pay to the complainant Rs. 60,000 for economic loss, Rs. 5,000 as damages for mental agony and harassment and cost of complaint Rs. 1,500. The order may be complied within one month failing which the complainant will be entitled to interest @ 12% p.a. from the date of order till realization. The other prayers of complainant are disallowed".

BEING aggrieved, petitioners filed an appeal before the State Commission. Along with it, an application seeking condonation of delay of 120 days was also filed.

THE State Commission, being not satisfied with the grounds mentioned in the application for condonation of delay, dismissed the appeal on delay as well as on merits. Hence, the present revision.

WE have heard the learned Counsel for the parties and gone through the record.

AS per respondent''s own case, he is doing the business of sale and purchase of shares and for that purpose, he has a trading account with the petitioners. Thus, the short question which arise for consideration is, as to whether respondent is ''consumer'' or not as per Section 2(1)(d) of the Act.

IT is the contention of learned Counsel for the petitioners that since respondent is trading in sale and purchase of shares, so he is not a ''Consumer''. In support, learned Counsel has cited the following judgments of this Commission: (i) Vijay Kumar v. Indusind Bank, : II (2012) CPJ 181(NC), and

(ii) M/s. Steel City Securities Ltd. v. Shri G.P. Ratnesh and Anr., : I (2014) CPJ 576(NC) : R.P. No. 3060 of 2011, decided by this Commission on 3.2.2014.

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."

Respondent has nowhere pleaded in his complaint that he is doing the share trading business for self -employment nor it has been pleaded that the services provided by the petitioners are being availed exclusively for the purpose of earning his livelihood by means of self -employment. It is well settled that the dispute between the parties relating to commercial purposes are excluded under the Act.

THIS Commission in Vijay Kumar v. Indusind Bank, : II (2012) CPJ 181(NC), 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 , respondent is trading regularly in the share business which is commercial activity, under these circumstances, he would not fall under the definition of ''Consumer'' as per the Act. Moreover, regular trading in the sale and purchase of shares is a purely commercial activity and the only motive is to earn profits. Therefore, this activity being purely commercial one, is not covered under the provisions of the Act. Accordingly, we hold that since respondent is not a ''Consumer'' as per provisions of the Act, the State Commission committed grave error in allowing their complaint. Consequently, we allow the present revision petition and set aside the impugned order passed by the State Commission as well as the order of the District Forum. With the result, the complaint filed by the respondent before the District Forum shall stand dismissed.

ACCORDINGL Y , the present revision petition stand disposed of. No order as to cost.