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2004 DIGILAW 172 (CHH)

PRIME INVESTMENT v. CHANDRA BAI KHIYANI

2004-09-22

R.S.AWASTHI, V.K.AGRAWAL, VEENA MISRA

body2004
ORDER V.K. Agrawal 1. This appeal, under section 15 of the Consumer Protection Act, 1986, is directed against the order dated 25-1-99 in, complaint no. 846/97 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called 'Distt. Forum' for short) directing the opposite party/appellant (to pay to the complainant/respondent a sum of Rs. 14,930.00 with interest @ 12% per annum. 2. Undisputably the appellant does business of shares on commission basis. The complainant/appellant owned shares of State Bank of India and handed over 50 shares to the appellant for sale. It is also not in dispute that the said shares were sold by the appellant on commission basis, and after deduction of his commission from the sale price, an amount of Rs. 14,930/was payable to the complainant/respondent. A contract note to that effect. was also issued by the appellant in favour of the complainant/respondent. 3. The grievance of the complainant was that despite sale of shares as above the sale consideration of Rs. 14,930/- was not paid by the appellant to the complainant/respondent. Since the payment was not made, despite complainant having served registered notice dated 28-2-97, he preferred the complaint before the Distt. Forum, claiming the above amount with interest. 4. The complaint was resisted by the opposite party/appellant. The main averment of the opposite party/appellant in his written version has that the above amount was adjusted by him in the outstanding dues against the complainant. It was also averred that the complainant is transacting business of sales and purchase of shares in the name of his two daughters and wife. It was averred that the complainant is not entitled to get any amount from the appellant, in view of the outstanding dues payable by him, to the appellant. 5. The Distt. Forum directed that the appellant shall pay to the respondent, the sale consideration of Rs. 14,930/- with interest thereon., 6. Learned counsel for parties were heard and record perused, 7. The learned counsel for the appellant reiterated its stand in the Distt. Forum. It was urged that the complainant indulges in business of sale and purchase of shares and therefore was not the consumer. It was also submitted that the appellant was entitled to adjust the sale consideration of shares from the outstanding amount against the complainant/respondent. Copy of the business transactions of the complainant by the appellant has been filed by him in the Distt. Forum. 8. It was also submitted that the appellant was entitled to adjust the sale consideration of shares from the outstanding amount against the complainant/respondent. Copy of the business transactions of the complainant by the appellant has been filed by him in the Distt. Forum. 8. Ii may be noticed that according to the averments in the complaint, the complainant had handed over the shares for sale to the appellant. Therefore it would appear that he himself does not undertake any business of sale and purchase of shares. Therefore even if the contention of the appellant is accepted that the complainant very frequently indulged in sale and purchase of shares through the appellant, the same would not show that the complainant was doing business of sale and purchase of shares. A person cannot be said to be doing business of shares, even if he frequently sells or purchases shares for himself or for his family members. It is in fact the appellant who indulges in business of shares by sel1ing and purchasing the same on commission basis, on the instruction of his customers. There is no reliable material to hold that the complainant/respondent indulges in business of shares. Hence the contention as above of the learned counsel for appellant cannot be accepted. 9. The next contention of the learned counsel for the appellant was that as there were outstanding dues against the complainant/respondent therefore the sale proceeds of the complainant's shares were adjusted towards the said amount. However the learned counsel for the complainant/respondent• submitted that the said shares were exclusively in the name of the complainant and he was entitled to have the sale proceeds thereof. The amount of sale consideration received after the sale of the said shares could not be adjusted in the outstanding amount, if any, against the joint holders who may have been related to the complainant. It is also noticed that the appellant has failed to lodge or show that there was any agreement between the parties regarding adjustment of the amount, as above. In the circumstances, the appellant does not appear to be entitled to adjust the amount of sale proceeds as has been done by him. If the appellant has to recover any outstanding dues from the complainant or his family members, he is at liberty to take recourse to appropriate remedy in that regard. 10. In the circumstances, the appellant does not appear to be entitled to adjust the amount of sale proceeds as has been done by him. If the appellant has to recover any outstanding dues from the complainant or his family members, he is at liberty to take recourse to appropriate remedy in that regard. 10. In the foregoing circumstances, we find no infirmity in the impugned order directing the appel1ant to pay the complainant/respondent the amount of sale proceeds of shares with interest thereon. This appeal has no substance. It is accordingly dismissed. Appeal Dismissed.