D.K. Tyagi, H.J.S., Member - (1.) The complainant has filed this consumer complaint before this Commission under Sec. 12 read with Sec. 18 of the Consumer Protection Act, 1986, against the opposite parties for compensation of Rs. 25,45,000/ - towards financial loss, Rs. 50,000/ - as litigation expenses and Rs. 15.00 lacs towards mental pain and agony. The complainant has stated in the consumer complaint that he had a Demat account having client ID No. 10611068 with Alankit Assignment Ltd., New Delhi. In the month of February, 2006, the complainant on the representation of the opposite party No. 2 had opened his DMAT account with the opposite parties and was allotted account Login ID -RAJRAV -67 and Client ID 10683809. The complainant was made to sign a form and the opposite parties had obtained about 40 signatures on the said form but at that time neither the said form was filled up nor any copy of the said form was provided to the complainant despite his request. That as agreed between the complainant and the opposite parties were supposed to provide statement of account to the complainant every month besides doing transaction in the said account on duly issued instructions of the complainant. The complainant was also handed over certain papers after opening of account which contained his confidential password and also 10 delivery instruction slips accompanied by a client master list approved by NSDL. The complainant has till date not scratched the said password and the said paper is intact with the complainant. In absence of the said password no transaction could have been carried out from the said account of the complainant. In the said account the complainant got transferred his shares of 20 companies from his previous account at Alankit Assignment Ltd. to the said account and also got transferred shares of two companies from his father's account No. 10632052, which was also maintained by Alankit Assignments Ltd. to his said account. After opening the said account with the opposite parties the complainant asked for the statement of account to ascertain that his shares from his previous account maintained by Alankit Assignment Ltd. have been duly transferred, but it was not provided. Non -providing of the statement of account to the complainant is deficiency in service provided to the complainant. The opposite party No. 2 had made the complainant understand that unlike other similar companies the opposite parties' brokerage fees is only 0.35% per transaction carried out by them on instruction of the complainant and not 1.5%. The complainant was also made to understand that no charges as the opening of account will be charged from the complainant, but the opposite party will charge the complainant by receiving commission of 0.35% per share transaction. That the complainant had been repeatedly requesting for providing him statement of account since in absence of the same the complainant was unable to issue instruction for any transaction. The complainant from the very beginning of his account with the opposite parties has not carried out any transaction in his shares nor has till date given any instruction to do so. Sometime in May, 2006, through newspaper and T.V. programme Teharedaar", the complainant came to know that the opposite parties are into business of befooling others for their personal gains and, hence, checked up with the dividends received from various companies whose shares, the complainant had got transferred from Alankit Assignment Ltd. to the said account of the complainant maintained by the opposite parties and found out that his account holding after being transferred to the said account maintained by the opposite parties has been drastically reduced and various transactions have been carried out from his said account, whereas he neither issued any instruction to do so nor has carried out any transaction himself. The complainant lodged complaint with the Branch Incharge of opposite parties at the office of opposite party No. 2, Sh. Sandeep Patiyal and also Branch Incharge Sh. Mukesh Jha, who were looking after the said DP account of the complainant. They admitted their negligence and deficiency in service provided to the complainant and assured to compensate him. The complainant believed them and waited for sometime, needful was not done by the opposite parties. The complainant hence again contacted Sh. Sandeep Patiyal and Sh. Mukesh Jha at office of opposite party No. 2, but they completely changed their stand and started threatening the complainant that the opposite parties are run by underworld people and as such the complainant should keep silent and not pursue the matter. The complainant soon spoke telephonically to the opposite party No. 1 but to no avail. The complainant through letters also called upon the opposite parties to provide him the statement of account as well as the contract notes, but even after receiving the said letters the complainant was not handed over the required papers. The complainant hence went to the local police station to lodge a complaint in the police station for the fraudulent acts of the opposite party but on account of influence of the opposite party the same was not registered and it took about 8 months for making the local police receive the complaint of the complainant. The opposite party has not only committed fraud with the complainant but has also not provided the proper service to the complainant, which they were supposed to do. The opposite parties were to provide the service of share transactions through the DMAT account, i.e. the said account of the complainant, but even after receiving the requisite amount from the complainant have failed to provide the services to the complainant and to the contrary have acted without consent or authority of the complainant and caused him loss of more than Rs. 25.00 lacs on account of the deficiency in service provided to the complainant. In case the opposite parties had supplied the statement of the said account to the complainant from time to time, then the complainant would have been able to find out about the embezzlement from his said account. The opposite parties, on account of the criminal complaint made by the complainant, had to seek intervention of the Hon'ble High Court for getting the arresting stayed and in the petition, have filed copy of document purporting to be the Power of Attorney whereas the complainant never executed the same. On the other hand the complainant had been regularly seeking intervention of the NSDL and was supplied with another document purported to be Power of Attorney and also shown to be attested in Bombay on 18.11.2008, whereas the complainant was in Roorkee at that time. The said document purported to be Power of Attorney is neither stamped nor duly authenticated, neither any witness to the execution was present, as is evident from the copy of the said document filed before the Hon'ble High Court of Uttarakhand. The entire act of preparing the said document purporting to be Power of Attorney is fraudulent and also a deficiency in service provided to the complainant by playing with the faith of the complainant reposed in the opposite parties by opening his said account. It is also relevant to point out here that the Power of Attorney bears date 26.12.2005 and admittedly the said account of the complainant has been opened on 15.02.2006 by the opposite party. During investigation, the opposite party again carried out transaction in the said account of the complainant, as is evident from the statement of account dated 04.09.2008, which was provided to the complainant by NSDL through its letter dated 24.11.2008 after obtaining the same from the opposite party. The statement of account dated 04.09.2008 shows a transaction of about Rs. 45,000/ -, whereas the complainant had never consented for the same. The statement of account provided to the complainant vide letter dated 24.11.2008 shows the transaction of shares pertaining to more than 45 companies, whereas the complainant had got transferred shares from 22 companies from his and his father's DMAT account maintained by Alankit Assignment Ltd. and after transfer of his shares from Alankit Assignment Ltd., the complainant has not carried any transaction nor instructed to do so from his said account as such statement of account showing more than 45 companies indicates that during investigation also the opposite parties are carrying out transaction from the said account of the complainant. Hence, the opposite parties continue to commit deficiency in service provided to the complainant. On account of the deficiency in service by the opposite parties, the complainant has been made to suffer financial loss on account of the shares of 22 companies, which are disclosed in this consumer complaint. The shares mentioned in the 22 companies, at the time of transfer from Alankit Assignment Ltd. to the said account maintained by the opposite party, bore value of more than Rs. 12.00 lacs and at the time, when the embezzlement was carried out by the opposite parties, the share market was at its peak and the shares bore a value of more than double, i.e. about 25.00 lacs. On account of the acts of the opposite parties, the complainant not only sustained loss on account of unauthorized transactions carried out by the opposite parties in the said account, but also on account of the litigation amounting to Rs. 50,000/ - arisen out of the deficiency in service provided by the opposite parties. The complainant is a practicing doctor and on account of the acts/omissions of the opposite parties, has not been able to concentrate on his profession since he is running from pillar to post to seek the available remedies against the opposite parties for the fraudulent acts of the opposite parties, thereby sustaining more financial loss. The cause of action for the complaint has arisen to the complainant initially on 15.02.2006, then in May, 2006, then on the dates mentioned hereinabove and then on 04.09.2008 and continues ever -since then. The complainant is a consumer of the opposite parties within the meaning of the Consumer Protection Act, 1986 and this Commission has the jurisdiction to hear and decide the consumer complaint.
(2.) The opposite parties have filed the written statement and pleaded that this Commission has no jurisdiction to hear and decide the case. Trading was being done by the complainant to earn profits, therefore, the dispute is not ad -judicable in the summary procedure provided under the Consumer Protection Act and the appropriate remedy is to refer the dispute to Arbitrator or to the Civil Court, where detailed evidence can be produced. It is admitted that the complainant opened his account in the opposite party -company in the month of February, 2006. Before opening the account, the complainant had perused the opening form as well as terms and conditions, thereafter, he put his signatures. One copy of the opening form was also provided to the complainant. There was a clear instructions in the written agreement made between the parties that the complainant may receive any information through internet for which the complainant had provided his e -mail id rajkumargauravl2@rediffmail.com. After opening the account, the complainant himself transferred shares of 22 companies and also purchased shares of Rs. 6.00 lacs in the said account, but the complainant had not paid any money to the opposite party company. The opposite party company had provided password to the customer to know about the account and transaction through internet. The complainant used to take informations from the company and all informations regarding the account of the complainant were available on the internet. The opposite parties also sent informations regarding the account and all transactions through courier. Therefore, there is no deficiency in service on the part of the opposite parties. The opposite parties have charged brokerage as per Broker -Client Agreement in the light of Rules of Stock Exchange. Clause No. 5 of the Broker -Client Agreement is as follows: - "Brokerage and Taxes: IISPL shall be entitled to a brokerage of upto the maximum rate permitted by SEBI/Exchange, of the value of every transaction that may be undertaken by the CLIENT by using the E -broking and/or Offline Service. The rates of brokerage for each Product that the CLIENT may avail of under this Agreement are mentioned in trading and product guidelines brochure hereto. The rates of brokerage may be revised by IISPL from time to time at its sole discretion. The CLIENT shall also pay any applicable taxes, including service taxes, handling charges, depository charges that may be levied on any transactions undertaken pursuant to this Agreement." It is denied that the complainant neither issued any instruction for various transactions nor has carried out any transaction himself. Any transaction of sale or purchase was done by the company was on the instruction of the complainant for which information was given to the complainant on his e -mail id. Apart from this, if the complainant desires he could have obtained the statements of account after deposting a nominal charges in the opposite parties company. The opposite party company is not responsible for any loss to the complainant due to share market crash. The opposite party company is a reputed company in the country, who was awarded best Broker Award by "Finance India Pacific Magazine". The complainant had filed a false report in the police and after investigation, the police had filed FR in the court. The complainant had never suffered a loss of Rs. 25.00 lacs. The Hon Tale High Court had also passed an order in favour of the opposite party company and stayed the arrest of its employees. Due to the debit balance outstanding against the complainant, the opposite party company had asked for money for which the complainant had issued a cheque No. 445540 of Rs. 49,000/ - on 29.04.2006 of Union Bank of India, which was dishonoured by the bank. The opposite party company had informed the complainant vide its letter dated 23.10.2006, even then the complainant did not give any money to the opposite party company. Thereafter, the opposite party had sold the shares for a sum of Rs. 45,000/ - to get money from the complainant's account on 04.09.2008. The complainant is a clever man, who had transferred his and his father's shares of 22 companies worth Rs. 6,32,388/ - and in lieu of the value of shares, the complainant had purchased shares of 23 other companies worth Rs. 6.00 lacs through the opposite party company without paying any amount. There was neither value of Rs. 12.00 lacs at the time of transfer of the shares nor value of those shares became 25.00 lacs when the share market was at its peak. All the transactions were made by the opposite party company on the instruction of the complainant, therefore, there is no deficiency in service on the part of the opposite party company. The complainant is not a consumer in view of the Consumer Protection Act, 1986. There is a clause in the agreement that all the disputes between the customer and the company shall be referred to the Arbitration. Valuation of this case is only Rs. 6,32,388/ -, therefore, this Commission has no jurisdiction to hear and decide the case. In the additional pleas, the opposite party company has stated that the complainant had filled a Broker -Client Agreement form on 26.12.2005 and a Power of Attorney was also provided to the opposite party company, which was signed by the complainant and two other witnesses. In the Power of Attorney the complainant had authorized the company that in case of debit balance, the company can recover the money after selling the shares of the complainant. The opposite party company is registered with BSE and NSE and works under the Rules and Regulations of SEBI. When the opposite party company ask for its money to the complainant, the complainant had threatened the employees of the company and also lodged a criminal case against the employees of the opposite party company. Police after investigation has filed FR in the court. The complainant had also sent a false complaint to the NSDL for which NSDL had replied to the complainant. No employee of the opposite party company had threatened the complainant. The opposite party company is not responsible for any loss caused to the complainant, due to the crash of the market. There is no amount outstanding towards the company. There is no cause of action arose against the opposite party company. The complainant is not entitled for any amount rather per contra the opposite party company is entitled to get Rs. 6,087.48 ps. on the basis of statement till 04.03.2010.
(3.) The complainant -Dr. Rajkumar Gaurav has filed an affidavit (Paper Nos. 157 -165) in evidence. The complainant has also filed several documents at the time of filing the consumer complaint. These documents are several transaction statements, delivery instructions, transfer instruction for delivery, D.P. account password, letter dated 23.02.2006 sent by opposite parties to the complainant, Client Master List, Schedule of Charges For Depository, letter dated 05.05.2006 sent by the complainant to Mr. Mukesh Jha, Branch Incharge, India Infoline Securities (P) Ltd., letter dated 08.06.2006, letter dated 06.07.2006, letter dated 11.10.2006 sent by the complainant to Mr. S. Ganesh, Assistant Vice President, NSDL, letter dated 11.10.2006, letter of India Infoline Securities (P) Ltd. to the complainant dated 23.10.2006, complainant's letter dated 20.11.2006 to Depository Head, India Infoline Securities (Pvt.) Ltd., complainant's letter dated 22.01.2007 & 16.03.2007 to D.G.P. of Uttaranchal, copy of Chick F.I.R., copy of complaint to police, letter dated 25.04.2007 to D.G.P. of Uttaranchal, copy of notice of Hon'ble High Court, Uttaranchal, Nainital, copy of Criminal Writ Petition No. 579 of 2007 (M/B); Mukesh Jha & 4 others vs. State of Uttarakhand 65 others, account opening form, beneficiary account details, agreement for transaction statement through internet with Power of Attorney, D.P. client agreement, Broker -Client agreement -NSE, letter dated 15.09.2007 to S.S.P., Haridwar, notice under Sec. 111 Cr.P.C. letter dated 10.10.2008, letter dated 16.12.2008 to D.I.G., Garhwal Range, Dehradun, letter dated 18.12.2006 to Depository Head, India Infoline Securities (Pvt.) Ltd., reply to complainant by NSDL dated 24.11.2008, certain papers regarding trading of shares and letter dated 14.09.2008 to S.S.P., Haridwar etc. The complainant has also filed certified copy of the Criminal Complaint No. 3430 of 2009; Rajkumar Gaurav vs. Mukesh Jha & others under Sec. 420, 504 and 506 IPC before P.S. Kotwali, Roorkee.;