Smc Global Securities Ltd. Petitioner(S) v. Anil Kasliwal And Others (S).

lakhs in a scheme launched by Opposite Party No.1, Jai Prakash Associates Ltd. for one year, vide FD receipt No.1205067. As per the scheme, the Complainants were to receive 11.5% interest on maturity. The Complainants got the FD renewed for a further period of one year with the same terms & conditions. Due to financial constraints, the Complainants approached the Petitioner for encashment of the FD and submitted the FD receipt before the Petitioner for onward submission to Opposite Party No.1/Finance Company. Despite submission of the FD receipt, the Complainants did not receive the amount. On 15.03.2016, the Complainants served a legal notice on the Opposite Parties, but in vain. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed a Consumer Complaint before the District Forum with the following: -

"(1) The defendants be directed to stop such unfair trade practice with immediate effect.

(2) The defendants be directed to pay jointly and/or individually the principal amount of Rs.3,00,000/- alongwith the interest on Rs.3,00,000/- from the date of maturity of fixed deposit i.e. 15/01/2015 till the date of disposal of the complaint @ 18% to complainant.

(3) The defendants be directed to pay jointly and/or individually an amount of Rs.1,00,000/- towards mental agony and economic loss suffered to complainant.

(4) The defendants be directed to pay jointly and/or individually an amount of Rs.1,00,000/- towards the loss of repute caused to the complainant in the society due to the negligence and defect of defendants.

(5) The defendants be directed to pay jointly and/or individually Rs.35,000/- towards the complaint and legal expenses.

Therefore, the defendants may kindly be directed to pay jointly and/or individually a total sum of Rs.5,35,000/- along with the interest on Rs.3,00,000/- @ 18% from 05/01/2015 till the disposal of complaint."

3. Learned Counsel for Opposite Party No.2 stated that since the Complainants had invested money for the purpose of earning profit, they were not Consumers under the provisions of the

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Consumer Protection Act, 1986. On merits, Opposite Party No.2 stated that they were working as a broker and their role was very limited. They received the application form and money on behalf of Opposite Party No.1 and forwarded the same to Opposite Party No.1. There was no deficiency in service on their part. Further, there was no privity of contract between the Complainants and Opposite Party No.2 It was Opposite Party No.1 which was responsible for deficiency in service, if any. Consumer Complaint against Opposite Party No.2 was liable to be dismissed.

4 After hearing the Learned Counsel for the Complainants and Opposite Party No.2, the District Forum, vide order dated 04.05.2016, partly allowed the Complaint. Opposite Party No.1 was proceeded ex-parte. The order of the District Forum reads as follows: -

"Hence, admitting the complaint of the complainant, order is given that the Opposite Parties severally and jointly must pay amount of the FD No.1246758 (Annexure-3) of Rs.3.00 lakhs along with the interest w.e.f. 05.01.2014 till its payment to the complainants within a period of two months. Apart from the above, the opposite parties severally and jointly will pay to the complainants an amount of Rs.1000/- and Rs.5,000/- as mental relief and cost of litigation respectively within a period of two months and in case of not paying the amount of mental relief and cost of litigation, the opposite parties severally and jointly will be responsible for payment of interest @ 9% on the amount of the mental relief and cost of litigation within a period of two months from the d ate of this order.

Rest of the prayer of the Complainants is denied."

5. Aggrieved by the order of the District Forum, Opposite Party No.2/Petitioner filed an Appeal with the State Commission. The State Commission, vide impugned order dated 17.12.2019 dismissed the Appeal.

6. Not satisfied with the order of the State Commission, Opposite Party No.2/Petitioner has filed the instant Revision Petition with the following prayers: -

(a) Call for the records and accept the instant Revision Petition;

(b) Quash and set aside the impugned final order dated 17.12.2019 passed by the Hon'ble State Consumer Disputes Redressal Commission, Jaipur-I, Rajasthan in First Appeal No.1048 of 2017 against the Petitioner;

(c) Dismiss the Consumer Complaint No.217 of 2016 dated 06.03.2017 filed by the Respondent-Complainant before the District Consumer Disputes Redressal Forum, Jaipur-IV, Rajasthan against the Petitioner herein;

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(d) Award costs of this Petition; and

(e) Pass such other order/orders as this Hon'ble Commission may deem just and proper in the facts and circumstances of the case."

7. Heard the Learned Counsel for the Petitioner. She submitted that as the Complainants had deposited the amount for earning profit, they were not consumers under the Consumer Protection Act, 1986. Further, the matter was to be adjudicated by the National Company Law Tribunal and not by the Consumer Forum. On merits, Learned Counsel submitted that the State Commission failed to appreciate that the role of the Petitioner was limited to the extent of collecting the duly filled form and forwarding the same to Opposite Party No.1/Respondent No.3. Even the Complainants issued the cheques in favour of Complainant No.3. She further submitted that after forwarding the filled form and the cheques the role of the Petitioner terminated. The Petitioner had nothing to do with the maturity amount or the interest. The Complainants unnecessarily impleaded the Petitioner as Opposite Party No.2. Learned Counsel further submitted that there was no privity of contract between the Complainants and the Petitioner. Further, the Petitioner had not received any consideration from the Complainants. Learned Counsel relied on the judgment of Hon'ble Supreme Court in Virender Khullar vs. American Consolidation Services Ltd. & Ors. decided on 16.08.2016.

8. Admitted facts of the case are that on 16.01.2013 the Complainants made fixed deposit of Rs.3 lakhs in a scheme launched by Opposite Party No.1, Jai Prakash Associates Ltd. for one year, vide FD receipt No.1205067. As per the scheme, the Complainants were to receive 11.5% interest on maturity. The Complainants got the FD renewed for a further period of one year with the same terms & conditions. Due to financial constraints, the Complainants submitted the FD receipt before the Petitioner for onward submission to Opposite Party No.1/Finance Company for encashment. Despite submission of FD receipt, the Complainants did not receive the amount.

9. As far as the question of maintainability is concerned, deposit of money in a Fixed Deposit Account cannot be termed as "commercial transaction." The submission of the Petitioner that the Complainants are not "Consumers" is rejected. Learned Counsel also submitted that the matter was to be adjudicated by the National Company Law Tribunal and not by the Consumer Forum. The Petitioner has not produced any evidence to substantiate that the matter was to be adjudicated by the NCLT. The District Forum was, therefore, well within its right to entertain the Consumer Complaint.

10. On merits, Learned Counsel for the Petitioner submitted that there was no privity of contract between the Complainants and the Petitioner. It is admitted by the Petitioner that the Petitioner was working as an agent of Opposite Party No.1. An agent of Opposite Party, the Petitioner cannot deny that there was no contract between the Petitioner and the Complainants. Petitioner also admitted that their name was also printed on the FD form. It is also admitted that they forwarded the FD form to Opposite Party No.1. The Petitioner, thus, cannot deny that there was no privity of contract between the Petitioner and the Complainants. The judgment relied by the Learned Counsel for the Petitioner in (supra) is distinguishable on facts. In Virender Khullar

that case the matter related to delivery of a consignment by shipping carriers. The case on hand

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relates to the Fixed Deposit amount. It is the case of the Complainants that they submitted the original Fixed Deposit Receipt to the Petitioner. In the reply filed before the District Forum, Petitioner had not clarified whether they forwarded the FD Receipt to Opposite Party No.1 for encashment. The District Forum held the Petitioner and Opposite Party No.1 deficient in service and directed to make payment jointly and severally. State Commission concurred with the finding of the District Forum. There are concurrent findings of fact. The Petitioner cannot be permitted to adduce new evidence at the revisional stage.

11. Also, Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the Petitioner succeeds in showing that the Fora below have wrongly exercised its jurisdiction or there is a miscarriage of justice. It was so held by the Hon'ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India

has held as under: -Insurance Co. Ltd. (2011) 11 SCC 269

"13. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

12. Same principle has been reiterated by Hon'ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8

wherein Hon'ble Supreme Court has held as under:- SCC 286

"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

12. In view of the foregoing discussion, we find no reason to interfere with the concurrent findings of both Fora below. Petitioner has failed to point any illegality or material irregularity in the order passed by the State Commission, warranting interference in exercise of Revision

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Jurisdiction of this Commission. Revision Petition is accordingly dismissed with no order as to costs.

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C. VISWANATH

PRESIDING MEMBER

......................J

RAM SURAT RAM MAURYA

MEMBER

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