JUDGEMENT

          Complainant by filing this complaint has alleged that Dr. Anil Ghosh was the maternal uncle of the complainant  and during his lifetime he purchased 16000 units of Certificates of UTI at face value of Rs.10/- each under the scheme of Monthly Income Plan – 1999 [MIP-1999 (II)] bearing Folio No.2001249000113 (W 042337857 – W 042353856).

          That Anil Ghosh already died and during his purchase he made nomination in his mother Hemlata Ghosh and on the death of Dr. Anil Ghosh, the units were transferred in favour of said Hemlata Ghosh, the recorded nominee under the Folio No. 2001249000113.  The said Certificate was issued by the UTI on 30.10.1999 under the Membership No.20001240010317 and the date of maturity was endorsed upon it as on 30.10.2002.

          The said Hemlata Ghosh, since deceased, opted the name of her grand-son, Sri Avik Roy, the complainant herein as the Nominee of the aforesaid certificate of the Unit Trust of India, in order to deal with, transfer and/or receive the benefits of the said Certificate in her absence.  Subsequently, with the passing of time, it transpired that Lt Hemlata Ghosh made her last Will and Testament voluntarily on 08.09.1986 and that too in presence of two Attesting Witnesses, named therein and she was personally present and put her respective signatures in the said document and that Will and Testment was registered in the Office of the Additional District Sub-Registrar at Burdwan.

          In terms of the said Will and Testament dated 08.09.1986, Hemlata Ghosh appointed her son Dr. Anil Ghosh since deceased and in his absence her daughter Ila Roy since deceased (mother of the complainant) as the Executor and Beneficiary of the said Will.  The said Dr. Anil Ghosh, who predeceased her mother, died on 05.09.2001 and therefore in terms of the said Will, after the death of Hemlata Ghosh (grand-mother of the complainant) on 20.04.2002 at her last place of abode at 564, Parnashree Pally, Rekha Apartment, No. L, 3^rd Floor, P.S.-Behala, Kolkata-60.  Thereafter the said Ila Roy filed a case before the Ld. District Delegate at Alipore for granting Probate of the Last Will and Testament of her mother, Lt Hemlata Ghosh, in respect of the Estate left behind by her mother.

          During continuance of the said proceedings, one Kinkar Roy, S/o Sri Ashok Roy representing himself as the grand-son of said Testator, appeared in the said case and denied the existence of the aforesaid Will of Lt. Hemlata Ghosh dated 08.09.1996 and being a contentious one the said Probate case was numbered as Original Case No. 47 of 2005 before the Ld. District Judge at Alipore and the same was transferred before the Ld. 6^th Additional District Judge at Alipore bearing O.C. No.10/2005 and thereafter before the Ld. 2^nd Additional District Judge at Alipore, being numbered as O.C. No.14/2008 for proper adjudication of the dispute between the parties to the said case.

          Unfortunately, during the pendency of the case before the Ld. 2^nd Additional District Judge at Alipore, Ila Roy died on 17.06.2010 and as a consequence of which Sri Avik Roy, the complainant herein being substituted by the Ld. Court after the death of his mother proceeded with the said case and as per terms and conditions of the said Will, the complainant is entitled to the grant of Probate as the sole Executor and beneficiary of the Last Will of her maternal grand-mother, Lt. Hemlata Ghosh dated 08.09.1986 in absence of his mother Ila Roy since deceased.

          Most interesting fact is that Kinkar Roy though filed a Written Statement to contest the said case, but did not participate in the entire proceedings after 17.03.2011.  Consequently exparte decree had been passed in the aforesaid Original Case No.14/2008 against Kinkar Roy and the Ld. 2^nd Additional District Judge at Alipore has been pleased to grant Probate in favour of the complainant Sri Avik Roy on 30.07.2012.

          Fact remains that the 16000 Units of Certificate of UTI at the face value of Rs.10/, which were transferred in favour of Lt Hemlata Ghosh, on the death of the original holder, Dr. Anil Ghosh, since deceased, under the Scheme of Monthly Income Plan 1999 (II) [MIP-99], having Folio No. 2001249000113 (W 042337857 – W 042353856), Certificate granted by the Ld. 2^nd Additional District Judge at Alipore in O.C. No.14/2008 in favour of the complainant.  Moreover the name of the complainant Sri Avik Roy has been endorsed as the recorded Nominee of the aforesaid Certificate by the said maternal grand-mother of the complainant, Lt. Hemlata Ghosh, unfortunately died on 20.04.2002.

          Therefore being the sole Nominee of the Certificate of the Unit Trust of India, the complainant after the unfortunate death of said Hemlata Ghosh on 20.04.2002, submitted an application, for complying with the procedure of mutation due to death on 09.05.2002, in the Office of UTI intimating the death news of his maternal grand-mother, Lt. Hemlata Ghosh and the same has been duly acknowledged by the concerned office of the UTI.

          Soon after the death of her maternal grand-mother, Lt. Hemlata Ghosh, the complainant issued number of letters, addressing the ops to intimate the factum of making nomination in favour of him by said Hemlata Ghosh, during her life time, among those letters, one was sent on 03.06.2002 through the Ld. Advocate Sri Raghunath Chatterjee on behalf of the complainant, which was received by the ops on the said date.  Subsequently the second letter was issued through the complainant’s the them Ld. Advocate Smt Kaberi Mukherjee and the last one was sent by the complainant himself on 16.05.2003.  In those letters the complainant contended that her deceased maternal grand-mopther was seriously ill and had been suffering from Diabetic coma, since 18.01.2002 and therefore she was admitted in Health Point Nursing Home and was discharged on 31.01.2002.  Thereafter the health of the said Hemlata Ghosh gradually had been deteriorated and in March, 2002 she was literally confined in bed and the same was certified by said Dr. Ajoy Mukherjee and lastly died on 20.04.2002.

          The ops on 26.03.2003 replied to the letter sent by Smt Kaberi Mukherjee, the then Ld. Advocate of the complainant, asserting that on 21.01.2003 a request for change in nomination was received from Mrs. Hemlata Ghosh and as per her request, the change in nomination was effected in favour of Sri Kinkar Roy.  But it was surprising and shocking too on the part of the complainant that the recorded holder Hemlata Ghosh allegedly made the request for nomination on 21.01.2003 when she died on 20.04.2002.  So, it is not understandable that how a dead person made request for nomination.

          Practically complainant never tried to realize the benefit of the certificate of the UTI during the pendency of the application for granting Probate in respect of the Last Will and Testament of his maternal grand-mother, Lt. Hemlata Ghosh dated 08.09.1986, though the date of expiry was endorsed upon it as 30.10.2002.  Subsequent to the adjudication of the said dispute and granting of Probate in his favour on 30.07.2012, the complainant submitted an application on 23.11.2012 for Redemption of the Certificate of the UTI, furnishing the particulars of his Bank Account.

          But surprisingly one letter was issued, addressing the complainant on 11/12/2012 by the Deputy Manager of the UTI Infrastructure Technology and Services Ltd. stating that the cheques were issed on 01.08.04 in respect of the said Certificate of the UTI, amounting to Rs. 1,60,000/- and those were paid on 17.08.2004.  But the complainant after receiving that letter realized that op issued those cheques in favour of unknown person having his no right to get it and practically op acted it illegally and even after knowing about the death of Hemlata Ghosh.

          Another factor is that everything was done by the ops in connivance with such Kinkar Roy long after the death of Hemlata Ghosh and practically by such act, op has acted illegally and in negligent and deficient manner they did it and at the same time their illegal and immoral act and un-merchantable act is also proved.  So, in the circumstances complainant has prayed for relief against the ops.

          On the contrary ops by filing written statement submitted that the above complaint has been filed by the complainant alleging of non-receipt of maturity amount of 16,000 units at the face value of Rs.10/- issued on 30.10.1999 for negligent and deficiency in service as well as unfair trade practice etc along with prayer for compensation.

          But in this regard op has submitted that this complaint is not maintainable in view of Section 24(A) of the C.P. Act 1986 and at the same time op acted as per request for change in nomination dated 21.10.2002 was received from Ms Hemlata Ghosh and accordingly the change in nomination was effected in favour of Sri Kinkar Roy.  Thereafter due to death of Ms. Hemlata Ghosh the death claim documents were submitted by Kinkar Roy on 18.06.2002 and the units were transferred in his name, the existing nominee as per records and a fresh Membership advice bearing Folio No.2001249000164 issued and forwarded to Shri Kinkar Roy and that has been encashed by Kinkar Roy on 17.08.2004.  They have also submitted that they already replied about the letter of Kaberi Mukherjee vide their Letter  dated 26.03.2003 informing about the facts and figures and moreover the complainant has not submitted any material to show that after 2003 complainant submitted any petition to the op about the filing of Probate etc., death of Hemlata Roy etc and further they have submitted that they are well aware of the fact that Kinkar Roy was nominee of Hemlata Ghosh and they submitted that as per securities and Exchange Board of India Regulation 1993 all the records in respect of that units have been destroyed in accordance with the guidelines.  So, no documents can be produced before this Forum and further present complaint cannot be adjudicated by this Forum.  So, Forum has no authority to decide it and prayed for dismissal of this case.

                                                      Decision with reasons

          On proper consideration of the argument as advanced by the Ld. Lawyers of the complainant and the ops and also considering the admitted position that initially the said 16,000 units was in the name of Dr. Anil Ghosh.  Subsequently it was transferred in the name of Smt Hemlata Ghosh as nomine and in the absence of Hemlata Ghosh certificate of UTI should have been changed in the name of Avik Roy.  It is undisputed fact that op has admitted that as per request on 21.01.2002 for change of nomination as received by the op in favour of Kinkar Roy, they transferred the nominee’s name in place of Avik Roy and included the name of Kinkar Roy.

          But truth is that Hemlata Ghosh died long prior to that date i.e. on 24.04.2002.  Further fact is that op has submitted that on the death of Hemlata Ghosh, the claim with documents were submitted by Kinkar Roy on 18.06.2002 and units were transferred in him name the existing nominee Kinkar Roy.  Then it is clear that there was no chance of transfer of document on the death of Hemlata Ghosh because Hemlata Ghosh during her life time never issued such an application for change of nomination.  So, it is clear that everything was done by Kinkar Roy with the help of the Officers of the UTI and with connivance of UTI Officers and Kinkar Roy and they managed to change the nominee’s name long after the death of Hemlata Ghosh and withdrew the said amount.

          But there is no such answer on the part of the op why they did not inform the matter to Avik Roy, but already filed an application just after the death of Hemlata Ghosh that in respect of Probate case in which those units are subject matter, time was pending and Kinkar Roy appeared and it became contentious case.  Truth is that the letter was received just after the death of Hemlata Ghosh who died on 24.04.2002 and even after existence of such letters how the UTI authority changed the name of nominee Avik Roy to Kinkar Roy when it is admitted by the op that Kinkar Roy submitted application for change of nomination on 21.10.2012.  For the sake of the argument that if it is accepted during the life time of Hemlata Ghosh that application was filed by Hemlata Ghosh, then how op on the basis of documents filed by Kinkar Roy on 18.06.2012 recorded a fresh Membership advice in favour of Kinkar Roy.  That means Kinkar Roy submitted some false death certificate of Hemlata Ghosh because on 18.06.2002 Hemlata Ghosh was not in this world because she already disappeared from this world on 24.04.2002.

          Unfortunate fact is that this UTI authority has realized that they committed an offence and they also realized that their act is no doubt unfaithful act and they joined hands with Kinkar Roy and managed to change the name of nominee from Avik Roy to Kinkar Roy and released the amount in favour of Kinkar Roy and after their such release, they took such plea that all the documents has been destroyed as per rules because they are not willing to produce the papers before this Forum.  So, as abundant precaution they have taken such path that all those documents are destroyed but unit certificate, change of name etc. have been destroyed and this is the common practice of the perpetrators who are adopting such sort of unfaithful path in respect of drawing unit certificate etc and in this case it is proved that Avik Roy became an absolute owner of all the units including property left by Hemlata Ghosh.  Because already Probate has been granted in favour of Avik Roy and in that proceeding Kinkar Roy appeared and ultimately left the fray realizing that he shall not be able to change the Will but in the meantime he has managed to withdraw that 16,000/- units with connivance with officers and staffs of UTI.  So, considering all the above fact it is clear that this present op appeared before this Forum with dishonest and black hands, knowing fully well about a pending case in respect of Probate related Will executed by Hemlata Ghosh who ultimately died on 20.04.2002 but long after her death with connivance of Kinkar Roy and UTI officers, ops with unfair trade practice did all such heinous act.

          Most interesting factor is that for the sake of the argument if it is accepted that at the relevant time they considered the death certificate of Hemlata Ghosh on 18.06.2012 in that case invariably op must have to change the name from Avik Roy to Kinkar Roy because op has admitted that request for change in nomination was received from Hemlata Ghosh on 21.10.2012 that means they have falsely stated about that, that means on 21.10.2012 there was no cause of existence of Hemlata Ghosh because Hemlata Ghosh went away from this world permanently on 20.04.2002.  It indicates that all the vexatious documents were placed by Kinkar Roy and without assigning any death certificate when he already filed an application before the op authority reporting the matter that Hemlata Ghosh died on 20.06.2012.

          Considering all the above fact we are convinced to hold that the entire defence is vexatious and false defence and only to save their skin they have already destroyed all the documents.  Invariably they shall have to defence the dishonest officers of UTI because in any way this Forum directs to produce all those documents in that case it would be found that ops did not consider the first letter of Avik Roy after the death of Hemlata Ghosh.  Then it is clear that connivance was there in between the Kinkar Roy and the UTI authority and they considered the appeal of Kinkar Roy and converted the name of Kinkar Roy by the op and that is invariably unfair trade practice on the part of the op which is proved beyond any manner of doubt and dishonesty on the part of the administration is well proved and they have willfully cheated the complainant and with the help of Kinkar Roy they managed to enjoy the juice of fruit. 

          So, we are convinced that complainant has been able to prove that he is entitled to get back the entire units certificate of 16,000 and there is no scope on the part of the op to discharge their liability by stating that Kinkar Roy withdrew it when Kinkar Roy had no authority to withdraw it but that authority was given by the op vexatiously.  Then invariably for adopting unfair trade practice op shall have to compensate for that and in this case they have tried to contest stating that case has been filed after lapse of 10 years.  But fact remains in the meantime present complainant faced Probate cases and if so invariably without getting Probate Certificate complainant shall not get relief from the op and after getting proper document of title i.e. Probate Certificate they filed such prayer but that was turned down by stating that Kinkar Roy already withdrew it.

          The whole cloud of the entire case was created by the op for the purpose of covering their misdeeds.  But anyhow from the written version of the op, it is clear that cloud was created with the help of Kinkar Roy on the basis of application of Kinkar Roy dated 21.10.2012 because truth is that Hemlata Ghosh was not in existence in the world on 21.10.2012 because she lost her breadth on 20.04.2002.  It indicates that the entire defence is false and fabricated for which the op should be penalized.

          Moreover considering the entire materials documents, facts and particularly the written statement we are convinced that the present Forum has it jurisdiction to decide it.  When after death in respect of UTI Certificate op had nothing to say when Additional District Judge, Alipore in respect of that Will was same and op has no authority to challenge any Probate and this Forum has any authority to deny about the authenticity of the Probate because Probate Certificate was granted by competent authority that is Additional District Judge of the District Alipore and said Probate Certificate has been done and that has been filed.  So there is no dispute because that Probate case was heard contentious finally the judgement was passed in support of complainant when Kinkar Roy left the fray then that decree was passed against Kiran Roy also.

          So, there is no complication regarding Title.  Moreover from all corner after deciding we have gathered that the complaint is not barred by limitation.  But fraud is practiced by the company to raise Title dispute only to avoid payment when company’s misdeeds in this case are well proved.  Their malpractice practically Will is proved that op practiced fraud upon the complainant and by practicing fraud they release the amount in favour of Kinkar Roy who has no right title in the said units.  In the result we are convinced to hold that the present complaint is maintainable and this Forum has jurisdiction to decide it and truth is that complainant proved the unfair trade practice on the part of the op and their negligent and deficient manner of service and they also proved that the op have adopted unfair trade practice and gave such indulgence to withdraw the said amount by one Kinkar Roy who had no right in respect of the present  16,000 units which was in the name of Hemlata Ghosh who died on 20.04.2002 and any change of name of nominee on the death of Hemlata Ghosh on 20.04.2002 shall be treated as vexatious transfer by the op and in this case that is proved.

          In the result the complaint succeeds.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against op nos. 1 & 2 and same is allowed exparte against op no.3 with cost of Rs.10,000/-.

          Ops are hereby directed to pay 16,000 units which was in the name of Hemlata Ghosh at the fact value of Rs.10/- of each unit in favour of the complainant and also a compensation of Rs.20,000/- for harassment, causing financial loss and mental agony to the complainant also.  Accordingly ops are directed to pay immediately a sum of Rs.1,60,000/- [ value of the UTI Certificates having Folio No.2001249000113 (W 042337857 and W 042335386] bearing New Folio No.2001249000164 having death of maturity endorsed upon it as on 20.10.2002 + Rs.10,000/- the litigation cost as awarded + Rs.20,000/- compensation as awarded i.e. total Rs.1,90,000/- to the complainant within 15 days from the date of this order failing which or each day’s delay penal interest @ Rs.300/- shall be assessed till full satisfaction of this decree.

          For adopting unfair trade practice and for practicing fraud upon the complainant op shall have to pay a sum of Rs.20,000/- as punitive damages which shall be paid to this Forum and it is imposed for adopting unfair trade practice by the op company and to check their such sort of administrative un-merchantable activities.

          But op nos. 1 & 2 shall have their right to realise the amount from Kinkar Roy by starting civil proceeding when it is proved that op nos. 1 & 2 with connivance with Kinkar Roy managed to transfer those units in favour of Kinkar Roy illegally.  Op nos. 1 & 2 are hereby directed to comply the order very strictly within 15 days from the date of this order failing which penal action shall be started.