S.P.SABAPATHY vs CHONA FINANCIAL SERVICE PRIVATE LTD.

THIS action has come up for admission initially before us on 4.10.2000 on which date we heard learned Counsel Mr. C.C. Chellappan appearing for the complainant.

THE matter was, however, adjourned without the arguments getting completed to 18.10.2000 and thereafter got adjourned to several dates and finally came up before us for disposal at the admission stage. In the mean time, the said learned Counsel appearing for the complainant sought help and yeoman assistance of another Counsel namely, learned Counsel Mr. S. Soundararajan. We heard the arguments of learned Counsel Mr. S. Soundararajan representing learned Counsel Mr. C.C. Chellappan appearing for the complainant. We have given anxious consideration to the arguments projected by the said learned Counsel in the light of the factual matrix placed on record by way of averments in the complaint and the documents filed along with it.

The sum and substance of the case of the complaint bristles to this : The complainant, S.P. Sabapathy, is an investor in shares and he utilized the services of the opposite parties, Chona Financial Service Private Ltd., the broker of the Stock Exchange in purchasing shares of various institutions. It appears, he had given instructions to the opposite party to purchase certain shares of certain institutions. The opposite party also appeared to have purchased the shares for and on behalf of the complainant. The shares so purchased, the complainant would say, had been sold out by the opposite party, Stock Broker, without getting proper instructions from him. This sort of an act on the part of the opposite party, he would say, would amount to deficiency in service calling for action.

FROM the factual matrix as adverted to by the complainant by way of incorporation of averments in the complaint and the documents filed along with it, nothing is traceable as respects the manner and methodology adopted in giving instructions by him to the opposite party Stock Broker relatable to the purchase or sale of shares. To put it otherwise, nothing is traceable as to whether the instructions said to have been given by the investor complainant to the opposite party Stock Broker is oral or written as respects the purchase or sale of shares. Confronted with such a situation, we questioned the same learned Counsel on this aspect of the matter. The said learned Counsel without any hesitation whatever admitted across the bar that 99% of the transactions in the Stock Exchange take place by way of instructions given orally through telephone or other means of communications and, therefore, there is no wonder, he would say, that the transactions governed by the case also took place as a consequence of oral instructions given by the complainant/investor to the opposite party Stock Broker. Such being the case, the adjudication of the dispute between the complainant and the opposite party as respects the alleged deficiency in service on the part of the opposite party Stock Broker is capable of being decided only on the adduction of voluminous oral evidence of a complicated nature. At this juncture, we may profitably pen down the weighty observations of the National Commission. In the case of M/s. Special Machines v. Punjab National Bank & Ors., 1991 (1) CPR 52, reflected in paragraph 28 at page 62 which reads as under : "28. The procedure for disposal of complaints under the Act has been laid down in Section 13 of the Act, the provisions of which are made applicable to proceedings before the National Commission by Rule 14(2) of the Consumer Protection Rules, 1987. Sub-sections (2) and (3) of Section 13 of the Act show beyond doubt that the Statute does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a detailed scrutiny and assessment of such evidence. It is no doubt true that the Forums constituted under the Act are vested with the power to examine witnesses on oath and to order discovery and production of documents. But such power is to be exercised in cases where the issues involved are simple such as the defective quality of any goods purchased or any shortcoming or inadequacy in the quality, nature and manner of performance of the service which the respondent has contracted to perform for consideration. Even in such cases, if it appears to the concerned Forum under the Act that the issues raised cannot be determined without taking elaborate oral and documentary evidence it is open to it to decline to exercise jurisdiction and refer the party to his ordinary remedy by way of a suit."

THE observations of the National Commission as extracted above are squarely applicable to the facts of the instant case. We may also refer another decision emerging from the National Commission in the case of Som Nath Jain v. R.C. Goenka & Anr., I (1994) CPJ 27 (NC). The observation of the National Commission in that case in paragraph 6 at page 28 are relevant and they read as under : "6. Having gone through the record and hearing the parties, we have serious doubts as to whether this is a complaint maintainable under the Consumer Protection Act. In any case, it is evident from narration of facts stated above that elaborate evidence will have to be taken regarding purchases/sale of shares, their prevailing prices in the market. Again, the transactions of sale and purchase were made on telephonic instructions. So elaborate evidence will have to be taken to establish what were the precise instructions given by the complainant to the respondent broker etc."

The National Commission after making such observations dismissed the original petition reserving liberty to the complainant to seek redress for the alleged wrong done to him by the opposite party/respondent in a Civil Court, if so advised. The observation as extracted above is also squarely applicable to the facts of the instant case.

HAVING regard to the fact that the issues to be raised in the case on hand cannot at all be determined without taking elaborate oral evidence, we are constrained to decline to exercise jurisdiction. We, therefore, directs the party/complainant to his ordinary remedy by way of a suit if he so advised.

IN fine, the complaint is rejected and the complainant is directed to seek remedy before a competent Civil Forum. The complaint is thus disposed of. Complaint dismissed.