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TMI Blog1994 (2) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... had availed of its services for sale of 100 shares each of TVSEL, UBPL, and for purchase of 500 shares of SVL for consideration - Held, yes - Whether complainant could claim to be a consumer qua second opposite party, Madras Stock Exchange, which had not rendered any service to complainant for consideration - Held, no - Whether first opposite party could be held guilty of gross deficiency of service and negligence - Held, yes - OP NO. 342 OF 1992 - - - Dated:- 15-2-1994 - JUSTICE S.A. KADER, PRESIDENT R.N. MANICKAM AND DR. SMT. RAMANI MATHURANAGAYAM, MEMBERS D.C. Jolly for the Complainant. R. Sivaprakash and A.S. Kailasam for the Respondent ORDER Kader, President - This is a complaint under section 17 read with section 12 of the Consumer Protection Act, 1986 ('the Act'). 2. The first opposite party filed a writ before the High Court, Madras in W.P. No. 2173 of 1993 and obtained a stay of further proceedings in the above opposite party. Subsequently the High Court by its order dated 15-12-1993 allowed this Commission to proceed with the petition and pass final orders. However, the implementation of the final order shall not be undertaken without perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. by their letter dated 15-2-1992 that the share certificates were sent to the first opposite party on 14-1-1992, but the opposite party No. 1 had not delivered the share certificates to the complainant. The complainant wrote to the first opposite party on 18-2-1992, but there was no response. The complainant wrote to the second opposite party giving details about the above transactions and requesting the second opposite party to intervene and settle the matter. There was a meeting at the office of the second opposite party but nothing came out if it. The second opposite party expressed its helplessness/inability to convince the first opposite party in this matter. According to the complain-ant, there was deficiency of service on the part of both the opposite parties and the claim is made for a sum of Rs. 2,01,425 on various heads. 4. The relevant contentions of the first opposite party are these : The complainant is not a consumer and the complaint is not maintainable. The complainant is not known to the first opposite party and the first opposite party never rendered any service to the complainant or collected any service charge from the complainant. It was only Mr. R. Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member. The second opposite party denies knowledge of all the allegations and averments made against the first opposite party. When the dispute was brought to its notice, this opposite party tried its level best to bring about a mutually satisfactory agreement and it was with this end in view that a meeting was held, but without success. The matter was not submitted to the arbitration of this opposite party and hence this opposite party could do nothing in this matter. It is not correct to say that this opposite party erred in not discharging its duties by washing its hands and insisting on the complain-ant to submit to arbitration. There was no deficiency of service on the part of this opposite party and the complainant is not a consumer as regards the second opposite party. 6. Exhs. Al to A25 and Bl to B3 are marked by consent. Proof affidavit is filed by the complainant. The opposite party has not filed any proof affidavit. 7. The points that arise for determination are : ( 1 )Whether the complainant is a consumer in respect of the opposite parties 1 2 or any of them ? ( 2 )Whether there has been any deficiency of service or negligence on the part of the opposite p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the services, need not actually be paid, it may be promised or partly paid and partly promised or under any system of deferred payment. When a person hires or avails of the services of a share broker for the purchase or sale of shares, there is an implied promise to pay the brokerage. It is not the case of the first opposite party that it rendered services in these transaction to the complainant free of charge, so as to take it away from the scope of service as defined in section 2(1)( o ) . This is a case where the services of the first opposite party have been availed of by the complainant on promise of payment of the required consideration, i.e., brokerage or commis- sion. Further in respect of the second transaction, the complainant has paid a sum of Rs. 7,335 by cheque to the 1st opposite party on 10-10-1991 and the same has been realised by the 1st opposite party on 12-10-1991 and there is no dispute on this aspect. The 1st opposite party has purchased 500 shares of Shyam Vinyl Ltd., at Rs. 14.25 per share and the total price comes to Rs. 7,125. The stamp duty Rs. 5 is for Rs. 1,000. It will come to less than Rs. 36, even allowing Rs. 20 for postal charges, the balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the false claim that the share certificates have been lost and tried to replace the shares. The replaced shares have not also been received by the complain- ant so far. In his counter statement the first opposite party would averred that the replacement shares have been handed over to Mr. R. Govindaraj on 20-9-1991 and that R. Govindaraj asked the first opposite party to transfer the same in the name of the complainant and his wife. Evidently, the complainant has not got the replacement shares or the value of the shares sold by the first opposite party. The first opposite party has, therefore, not only committed gross deficiency of service but also acted dishonestly. It is bound to refund the price of these shares to the complain-ant with interest thereon from date of the sales. The second transaction is for purchase of 500 shares of Shyam Vinyl Ltd. A sum of Rs. 7,335 has been paid by the complainant to the first opposite party by cheque through Mr. R. Govindaraj under Exh. A8 letter dated 10-10-1991. The cheque has been drawn in favour of the first opposite party and according to the complain-ant it has been realised by the first opposite party on 12-10-1991. The share cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is not a consumer as regards the second opposite party, the Madras Stock Exchange. Further there is nothing to show that there was deficiency of service on the part of the second opposite party. The dispute between the complainant and the first opposite party share broker has been taken to the second opposite party for settlement and the second opposite party has suggested an arbitration to which the complainant was not available. The second opposite party is not, therefore, guilty of deficiency of service or any negligence. 14. Point No. 3. We have already found the first opposite party guilty of gross deficiency of service and negligence in respect of both these transactions. It is bound to refund to the complainant the price of 100 T.V.S. Electronics Ltd. shares and 100 U.B. Petroproducts Ltd. shares sold by it. Exh. A4 shows that 100 U.B. Petroproducts Ltd. shares have been sold for Rs. 3,200 to Mr. Sankaranarayana Bhattacharya on 19-12-1990 for Rs. 3,200. The first opposite party is bound to repay the sum of Rs. 3,000 to the complainant with interest thereon at 24 per cent p.a. from 19-12- 1990 till payment. 15. The first opposite party has also sold 100 T.V.S. Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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