RAJESH AGGARWAL Vs. VIPIN KUMAR GOYAL

JUDGEMENT

(1.) The complainant was carrying on business of sale/purchase of company shares listed at Major Stock Exchanges in India. Opposite party No.1 was Managing Director of M/s. Hy Fly Financial and Management Services Pvt. Ltd. The opposite party entered into a contract with the complainant on 16.9.92 for the sale of 1.5 lac shares of Roshanlal Oil Mills Ltd. @ Rs.8/- per share. Confirmation memo dated 16.9.92 was issued by the opposite party. The complainant paid a sum of Rs.48,000/- by banker's cheque dated 16.9.92 as advance deposit against the said contract. Further case of the complainant is that the opposite party neither delivered the shares nor refunded the advance deposit even after closure of the right issue. The complainant paid a large number of visits to their office but to no purpose. The complainant claimed refund of Rs.48,000/- paid as advance deposit, Rs.3 lacs on account of loss of net profit @ Rs.2/- per share, Rs.6 lacs on account of expenses incurred in pursuing the matter with the opposite party, another Rs.5,100/- and Rs.2,000/- respectively on account of expenses incurred in boarding and lodging and legal notices etc. and Rs.20,000/- on account of mental agony suffered by the complainant.

(2.) A short reply was received from the opposite party by post in which it was stated that in view of the various transactions, which took place between the parties, the complainant owed to the opposite party a sum of Rs.10,19,400/- besides interest and expenses. By order dated 17.9.93, defence of the opposite party was struck out. The opposite party made an application dated 28.9.93 for recalling the order striking out the defence and accepting the opposite parties written version. The National Commission has since settled the question and it has been laiddown that the Fora constituted under the Consumer Protection Act, has no power to strike out the defence. Reference in this connection be made to South Delhi Teachers Cooperative Group Housing Society V/s. Dr. Madhu Rathor,1995 CCJ 1991. Even otherwise, the Commission took on record the written version dated 17.9.93.

(3.) In the written version, a number of preliminary objections have been taken. It has been stated that the complainant is not a 'consumer' and, therefore, the present complaint is not maintainable.