TRILOCHAN DIPAKLAL MEHTA Vs. RAMESH AMBALAL MODI

JUDGEMENT

(1.) The appellant is the original complainant who filed a complaint before the District Forum, Mehsana against Ramesh Ambalal Modi who is proprietor of Shrinathji Share broker carrying on business as share broker. The complainant was in possession of various scrips and has sold 754 shares of Reliance, 20 shares of Asian Paints, 95 shares of Orissa cement, 50 shares of Apple, 300 shares of A. V. Thomas, 94 shares of Lohia Machinery and 5 shares of Kesoram at the rates mentioned in the list and gave delivery to the broker alongwith the transfer form. The broker appears to have delivered the shares to the respective purchasers and sent a cheque for Rs.95,841/- to the appellant complainant and requested him not to encash the cheque for some time. The complainant thereafter sent the cheque for realisation to the bank. The bank has refused the payment on the ground that there was no balance. The complainant alleges that the broker has left the city with the intention not to make payment to anybody. The complainant has also produced the printed bill of Shrinathji broker which shows the share transaction made by the opponent on behalf of the wife of the complainant. The complainant has stated that he has sold the shares in the name of his wife but the shares belonged to him and the cheque was deposited in joint account of him and his wife. The opposite party had filed written statement and contended that the complainant was not consumer and the transaction of shares was not through recognised stock exchange and, therefore, the act of selling shares is illegal.

(2.) It may be noted that this complainant has filed two complaints, one for the recovery of Rs.95,000/- under promissory note which was also for the share transaction and this complaint is for the deficiency in service in respect of share transaction in which a cheque for Rs.95,841/- is given. However, the District Forum has mixed up both the cases and facts of both the cases have been narrated in the judgment of the District Forum which according io the complainant shows complete nonapplication of mind and the judgment is, therefore, erroneous on that ground also. In this decision the District Forum has written several things with respect to the promissory note and the findings, therefore, to our opinion, are totally erroneous regarding promissory note which was not the subject matter of dispute in this complaint. The case was remanded to the District Forum. Even then, to our opinion, the District Forum has not applied its mind and have not taken into consideration the real facts in the dispute and has come to the conclusion that the complaint involves complicated questions which cannot be decided without taking evidence and has therefore dismissed the complaint. We are at pains to say that the District Forum has not carried out the orders of remand made by this Commission. The case of the complainant is very simple i. e. he has sold the shares through the opponent, given list of the shares, the shares were sold and monies were recovered and cheque for the amount which has been recovered has been given which has been dishonoured and thereby the opponent is guilty of deficiency of service. The original bills have also been produced which are in printed letterhead of the opponent, xerox copy of which has been produced and in order to dispel any doubt the complainant has also produced the correspondence with the bank. We have perused the original bill and the cheque and there is no doubt that the opponent was representing himself as a broker and the contract also contains the information that the parties have to act according to the rules of the association. He has sold the shares, recovered the money, even gone to the extent of giving the cheque which leaves no doubt that the transactions were ordinary commercial transactions and whether this transaction is legal or not is not supported by any other evidence except the bare say of the opponent. It is his duty to prove that he is not liable which he has failed to discharge. We are, therefore, of the opinion that the complainant has clearly proved his case that there is deficiency in service. The complainant has also cited three decisions of other State Consumer Disputes Redressal Commissions who have also taken the view that when shares are sold through brokers, seller is consumer within the meaning of Sec.2 (1) (d) of the Consumer Protection Act. We fully agree with the decision of the other Commissions which are annexed with the appeal Memo. We are, therefore, not reproducing the facts stated therein. The appellant complainant is, therefore, entitled for full relief. He is also entitled for some damages for pain and suffering which we quantify at Rs.10,000/-. ORDER the appeal is allowed. The order of the District Forum is set aside. Shri Ramesh Ambalal Modi, proprietor of Shrinathji Broker shall pay Rs.95,841/- with running interest @ 18% p. a. from 24.3.91, the date on which the cheque was issued till the payment is made and shall also pay Rs.10,000/- by way of damages for pain and suffering and pay the cost of both the Courts which is quantified at Rs.2,000/-. These amounts shall be paid within 4 weeks from today.