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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Rekha Gupta, Presiding Member
Karvy Stock Broking Ltd. and Anr. —Petitioners
versus
Krishan Dutt Joshi —Respondent
Revision Petition No.2487 of 2016
(Against the Order dated 03/06/2016 in Appeal No. 333/2010 of the State Commission Uttaranchal)
Decided on 17.8.2017
Counsel for the Parties:
For the Petitioners:Mr. Vinod Kumar, Advocate
For the Respondent:Mr. Rajiv Kumar, Advocate
IMPORTANT POINT
Commercial users cannot maintain consumer complaint.
Headnote:Consumer Protection Act, 1986—Section 2(1)(d)—Capital market—Demat account—Missing of shares—Application for condonation of delay which was filed before State Commission, has been drafted in a very vague manner—There are no details to account for day to day delay of 230 days—It does not even mention name of Lawyer who was pursuing matter—Issue relating to whether complainant is a consumer was never mentioned by petitioner either before District Forum or before State Commission—It has neither been mentioned in written statement nor in appeal filed before State Commission—Even today he could not give any evidence to support his argument that petitioner was not a ‘consumer’ as he was in business of trading and hence, he had opened account with petitioner for commercial purpose—Revision petition dismissed.
Held: I have gone through the application for condonation of delay which was filed before the State Commission. It has been drafted in a very vague manner. There are no details to account for the day to day delay of 230 days. It does not even mention the name of the lawyer who was pursuing the matter at Haridwar. It is quite clear from the application that the matter was not diligently pursued by the petitioners themselves as also their lawyer.
The issue relating to whether the complainant is a consumer was never mentioned by the petitioner either before the District Forum or before the State Commission. It has neither been mentioned in the written statement nor in the appeal filed before the State Commission. Even today he could not give any evidence to support his argument that the petitioner was not a ‘consumer’ as he was in the business of trading and hence, he had opened the account with the petitioner for commercial purpose.
In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, therefore, dismissed with no order as to costs. (Paras 11, 12 and 13)
Result: Revision Petition dismissed.
Rekha Gupta, Presiding Member—The present revision petition has been filed against the judgment dated 03.06.2016 of the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (‘the State Commission’) in First Appeal no. 333 of 2010.
2. The facts of the case as per the respondent/ complainant are that the respondent had opened a demat account for the purpose of trading in shares. On perusal of the statement of the account, he realised that about 4000 shares worth Rs.2,50,000/- were missing from the statement that had been made available to him. The respondent made numerous requests to the petitioner/ opposite parties and filed the present complaint when no action was taken by the petitioner.
3. The petitioners/ opposite parties in their written statement pleaded that nothing had been concealed and that the complaint was frivolous. As per the rules, the present dispute must be referred to arbitration and in such a situation, the present complaint was liable to be dismissed.
4. The District Consumer Disputes Redressal Commission, Haridwar, (‘the District Forum’) vide its order dated 03.02.2010, while allowing the complaint observed as under:
“Upon perusal of the documents placed on record, it transpires that the complainant had sent a letter to the opposite parties regarding missing shares but the opposite parties did not respond to the said letter. There is nothing on record to suggest that the account of the complainant has been credited with the said shares. Therefore, on the basis of available evidence, there appears to be force in the contention of the complainant and he is entitled for the relief prayed for. The opposite parties should ensure to credit the lost share in the account of the complainant and pay a sum of Rs.5,000/- on other heads. Accordingly, the complaint of the complainant needs to be accepted.
The complaint of the complainant needs to be accepted in the aforesaid terms. The opposite parties are directed to ensure the credit of 4000 lost shares in the account of the complainant with immediate effect within a period of one month from the date of this order and also pay a sum of Rs.5,000/- towards compensation to the complainant”.
5. Aggrieved by the order of the District Forum, the petitioner/ opposite parties filed an appeal before the State Commission. The appeal was filed with a delay of 230 days, though the number of days have not been mentioned in the application for condonation of delay.
6. The reasons given for the condonation of delay in the application were as under:
“3. That the copy of the order dated 03.02.2010 was taken by the counsel of the appellant no.1, Haridwar but the same was not conveyed to the appellant no. 1 so the appellants had no knowledge of the order.
4. That the appellant no. 1 enquired from his lawyer at Haridwar about the proceedings he told that the judgment has been delivered and the complaint has been allowed.
5. That on hearing of the counsel, the appellant no. 1, asked his counsel at Haridwar on 03.08.2010 to apply for the copy of the order. A copy of the judgment was delivered on 05.08.2010.
6. That the appellant no. 1 sent the copy of the above judgment and order to appellant no. 2 who was its own legal cell. The opinion of the legal cell was that a restoration was to be moved against the order, so the relevant papers were given to the counsel at Haridwar preparing restoration application for setting aside the impugned order.
7. That while preparing the restoration application, the counsel at Haridwar was of the opinion that no restoration lies against the order as order 9 CPC is not application of the Consumer Courts.
8. That after seeking opinion of the said counsel, the appellant no. 1 again forward the matter to its head office appellant no. 2 for further directions in the matter. The appellant no. 2 after taking advice from its legal cell directed to prefer an appeal before this Hon’ble Forum.
9. That the Hon’ble Forum being establ
