BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 31st March 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.146/2013
(Admitted on 25.5.2013)
- Sri. Vitobha Rukma Bai Devara Bhandaram,
Priate religious Trust having office at
V.T.Road, Mangalore represented by
Complainant No.2.
- Sri. M.Varadaraya Prabhu,
S/o M. Ramakrishna Prabhu,
Aged about 65 years,
Managing Trustee,
Vittobha Rukma Bai Devara Bhandaram,
R/at Ayodhya Patidham,
Ganapathi Temple Road,
Mangalore 575001.
….. COMPLAINANTS
(Advocate for the Complainants: Sri PRR)
VERSUS
Canara Bank,
Carstreet Branch,
Represented by senior Manager,
Mangala Complex, Mangalore 575001.
….OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. MSKP)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, the payment of damages Rs.25,000/ to pay Rs. 10,000/ for compensation for causing mental agony, to pay Rs.4,000/ Schedule A total Rs.6,43,300/, Schedule B total Rs.34,599.50 , Schedule C Total 121.900, cost of the complaint.
2. In support of the above complaint M. Varadaraya Prabhu, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C14 as detailed in the annexure here below. On behalf of the opposite parties Narendra Baliga, (RW1) Branch Manager, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R9 as detailed in the annexure here below.
The brief facts of the case are as under:
We have perused the complaint and the version filed by the parties. This dispute is with regard to operation of Bank Account and the bank locker opened by the trust with the opposite party bank. The complainant no 2 as he claims to be managing trustee of the complainant no 1 the trust herein alleges that, the opposite party bank had broke open the safe locker and operated the bank account of the trust with the third parties without his(Managing Trustee) permission and hence there is deficiency in service from the opposite party bank. The opposite party contended that, the complainant no 1 has opened a Bank Account and also hired a safe locker to maintain financial account and to keep the ornaments of the trust. The Account shall be operated by the complainant no 2 here in jointly with either one Shri Maroli Laxman Kamath or one Shri Sringeri pundalika pai both are trustees. On demise of Laxman Kamath the complainant claims he is alone operating the trust account as he is sole trustee cum managing trustee. But he came to know that the opposite party bank indulged with unfair method and allowed some third parties to operate the Bank Account as well as safe locker by breaking open the locker in spite the complainant having a key of the safe locker. Hence opposite party committed deficiency in service and unfair trade practice. The opposite party in defense stated that, the complainant is not the managing trustee, there is a suit in which the complainant No 2 filed for declaring himself as managing trustee but, the suit dismissed and now pending before appellate authority, The complainant no 1 the trust had elected the new body and the resolution passed and requested us to release the ornaments for the celebration. Since there was court order dismissing the plea of the complainant and new trustees requested with indemnity bond and the new trust member documents the locker broke opened and the ornaments given for festival and the same has been replaced in the locker. Hence there is no deficiency in service on their part. The opposite party also contended that the complainant is not the consumer and with regard to locker is concern the relation is lessor and the lessee. It is also contended that, there are other trustees also who are the necessary parties and the complaint is not maintainable for non joinder of necessary parties and hence opposite party payed that, the complaint to be dismissed. These are being the facts of dispute in resolving it we consider the following.
POINTS FOR ADJUDICATION:
We with due diligence examined the evidences lead and meticulously studied the documents produced. The admitted facts are, the opening of the Bank Account and safe locker in the name of complainant No 1 by the complainant no 2 in the capacity of managing trustee and the operation of the Account and the locker by the complainant No 2 jointly with either one Shri Maroli Laxman Kamath or one Shri Sringeri pundalika pai both are trustees. The death of the Maroli Laxman Kamath on 01.10.1998, It is found in the trust minutes that the Shri Sringeri pundalika pai has resigned for the trustee ship from the trust, The braking open of the safe locker and the ornaments taken off and replaced again on the request of the persons claimed to be new trustees. The O.S. No 497/97 filed by the complainant no 2 and its dismissal. It is denied that the opposite party has replaced the ornaments taken out with exact material and weight originally kept. It is also denied that the O.S. No 497/97 is dismissed on merit and the judgement have any effect on this complaint. The complainant denied that the persons claimed to be trustees are, as trustees and they have authority to run the trust and its property. It is denied that the complainants are consumers and the complaint is maintainable and the deficiency in service on the part of the opposite party. Admissions and the denials reconciled and considered the following points for adjudication.
- Whether the complainant is a consumer under the consumer protection Act 1986? And the complaint is maintainable.
- Whether deficiency in service proved by the complainant against the opposite party?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have considered the evidence produced and the documents filed and also considered the law related to subject in issue. Studied the copy of judgement in 497/97 produced. After we traversed through the notes of arguments, heard the submissions of the party counsels and we answered the above points as under:
- In the negative.
- Does not arise.
- Does not arise.
- As per delivered order.
REASON
POINT NO.1: This complaint filed by the complainant in the capacity of managing trustee shri M VARADARAJA PRABHU alleging deficiency in service on the part of the opposite party with regard to the Bank Account and the safe locker opened by the trust the complainant No 1 Shri VITOBHA RUKMA BAI DEVERA BHANDARAM herein. The trust formed by the author in the year 1923 With five trustees and the trustee ship devolves hereditarily. The present complainant No 2 said to be one of the trustee as per meeting minutes dated 14.03.1983 with Mr M. Laxman Kamath, Shri S pundalika Pai, Shri M Krishna Prabhu. It is said in the same minutes that the Shri S pundalika Pai, Shri M Krishna Prabhu were said to be hangami trustees. The trust meeting conducted on 26.03.1983 attended by the above four members unanimously elected Shri M Varadaraj Prabhu as the managing trustee.
2. On 10.12.1984 a resolution passed to hire locker in the opposite party Canara bank and the locker to be operated by any two among Shri M Varadaraj Prabhu, Mr M. Laxman Kamath, Shri S pundalika Pai, on 31.01.1987 a trust meeting held and resolved to open a savings bank Account with the opposite party Canara bank and decided that, the Account shall be operated by the complainant no 2 here in jointly with either one Shri Maroli Laxman Kamath or one Shri Sringeri Pundalika Pai both are trustees. In the meeting attended by Shri M Varadaraj Prabhu, Mr M. Laxman Kamath, held on 10.08.1991 one of the trustee Shri S Pundalika Pai resigned and the resignation accepted. EX C 11 is the death certificate of deceased M. Laxman Kamath who expired on 01.10.1998. The letter dated 16.11.2010 EX C 2 written by the opposite party to complainant No 1 reveals that one shri S Pundalika Pai informed about new trustees and sought documents from the complainant No 2 in this regard. The letter dated 22.11.2010 EX C 3 in which complainant No 2 states that Further No new trustees have been appointed for the above temple The letter dated 22.11.2012 written by the complainant No 2 EX C 4 to the opposite party in which the complainant No 2 stated that Late Maroli Laxman Kamath since expired in year 1998 I have thereafter continued as the sole trustee cum Managing trustee. The letter dated 07.12.2012 EX C 5 written by the complainant No 2 in which he stated that since the demise of the Late Maroli Laxman Kamath he is continued as sole trustee cum managing trustee. EX R1 is the copy of the judgement in suit O.S.497/1997 instituted by the complainant No 2 in the court of principal C.J. Mangalore seeking relief of declaration that the meeting purported to be conducted by the defendants on 14.10.1994 and resolution supposed to have been passed therein for the removal of the complainant No 2 as the managing trustee of Shri VITOBHA RUKMA BAI DEVERA BHANDARAM is illegal and without jurisdiction and invalid and also for declaration that the plaintiff continues to be the Managing trustee of the Shri VITOBHA RUKMA BAI DEVERA BHANDARAM. This complainants suit was dismissed on 20.04.2012. The defendants in the suit are now Late Maroli Laxman Kamath, Shri Mohan V. Nayak whom were trustees before. The Late Maroli Laxman Kamath was the trustee and one of the signatory for the operation of bank locker and the Bank Account till his death on 01.10.1998. So two of the old trustees who attended the meeting and the complainant No 2 not attended the meeting. The EX C 2 letter dated 16.11.2010 reveals that Shri M Pundalika pai had informed the opposite party regarding formation of new trust committee. It is understood that both Laxman pai and the M Pundalika Pai are the erstwhile trustees and these two jointly empowered to operate the trust safe locker with opposite party as per resolution dated 10.12.1984.
3. In the light of above facts we discern the position now exist is the complainant No 2 is not is a position to operate the bank Account and the locker because his power to operate the Account and locker is in joint with either one Shri Maroli Laxman Kamath or one Shri Sringeri pundalika pai both are trustees. Now one has expired and another is not a trustee who has resigned. So the complainant No 2 cannot operate the bank account as well as locker and hence the position of the complainant No 2 is itself in dispute with regard to trusts Bank Account and locker. It is needless to state that the complainant No 2 has become consumer on the force of the authority given by trust and the authority given by the trustees. The complainant claims he is the sole trustee. The Indian trust Act 1866 do not support the trust with sole trustee. The Act requires minimum two trustees to form a trust. The trustees are obliged to replace the trustees as and when occasion arise. However from the suit record it is revealed, a meeting of the trustees held in 1994 and the complainant No 1 is removed from the managing trustee position. The suit against his removal and the conducting of the trust meeting filed by the complainant No 2 is dismissed. Hence the position is he is not the consumer either because he cannot operate the trusts bank account alone or as managing trustee. He do not have local standi to question the deficiency in service on the part of the opposite party. The other point we noticed is the opposite party had permitted the break opening of the locker by the new trustee by obtaining an indemnity bond as per practice and the ornaments were taken out for using in festival and the same has been stated to be replaced. The suit is pending before the appellate authority once the suit reached its finality the complainant No 2 will have recourse and claim relief for deficiency in service on the part of the opposite party. Now the suit is pending for disposal the matter is lis pendis and we cannot conclude the position of the complainant No 2 as a consumer or not as far as the trust’s Bank Account and the Safe locker is concern.
4. Also as per above facts detailed, lot of evidences like trust deed the authenticity of the trust meeting the position of the complainant No 2 the operation procedure when the signatories are not either alive or not as trustee, the fate of the trust reduced to single trustee, and it seems we heard from the bar that there are other cases also pending, in our opinion the dispute cannot be resolved in summery proceedings. In summery the complainant No 2 is not the consumer and the dispute is lis pendis, and needs voluminous evidence to be recoded, we are of the opinion that, this dispute is not maintainable for adjudication in summery trial and we answered the point no 1 in the negative.
POINT NO 2 & 3: As per above discussion we held the point no 1 in the negative, we answered the point no 2 & 3 as does not arise.
POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 31st March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 M. Varadaraya Prabhu,
Documents marked on behalf of the Complainants:
ExC1: 10.11.2010: Letter addressed by the complainants to the Manager of Opposite Party.
ExC2: 16.11.2010: reply given by the senior manager of Opposite Party.
ExC3: 22.11.2010: Letter addressed by the complainants to senior manager of Opposite Party.
Ex.C4: 22.11.2010: Letter addressed by the complainants to senior manager of Opposite Party.
Ex.C5: 7.12.2012: Letter addressed by complainants to the chairman of Opposite Party.
Ex.C6: Postal receipt.
Ex.C7: Postal acknowledgements.
Ex.C8: 10.12.2012: Reply given by senior manager of Opposite Party to complainants letter dated 22.11.2012.
Ex.C9: Postal envelope.
Ex.C10: Statement of account of 1st complainant Bhandaram for the period from 1.4.2012 to 15.4.2013.
Ex.C11: Death certificate of Maroli Laxman Kamath.
Ex.C12: Certified copies of proceedings book of board of Trustees of 1st complainants Bhandaram for the period from 14.3.1983 to 15.4.1991.
Ex.C13: Certified copies of proceedings book of board of Trustees of 1st complainants Bhandaram for the period from 12.6.1991 to 3.4.1992.
Ex.C14: Certified copy of the commissioners Report filed in O.S.No.17/2013 on the file of IV Additional Civil Judge, Mangalore.
Witnesses examined on behalf of the Opposite Party:
RW1: Narendra Baliga, Branch Manager
Documents marked on behalf of the Opposite Party:
Ex.R1: 20.4.2016: Copy of Judgment in O.S.No.497/1997.
Ex.R2: 15.11.2012: Opinion given by Advocate.
Ex.R3: 16.11.2012: Letter of Trustees.
Ex.R4: 17.11.2012: Resolution dated 16.11.2012.
Ex.R5: 17.11.2012: copy of Indemnity Bond executed by Trustees.
Ex.R6: Statement of A/c S.B. from 1.1.2010 to 27.11.2015.
Ex.R7: Locker Register (Master Sheet) (2 sheet).
Ex.R8: Copy FD Receipt No. 225452.
Ex.R9: copy of Inventory/ Mahazar dated 17.11.2012
Dated: 31.03.2017 MEMBER
