BEFORE THE SOUTH MUMBAI  DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM,

                                                                    O.No.

Complaint No.SMF/MUM/CC/2005/117

   Date of filing :  14/06/2005                                                                                                     

                                                                           Date of Order:  22/09/2017

1. M/s. Kamlesh Textile,

Registered Partnership Firm

18/19, Dhavantri Bhavan,

 143-A, August Kranti Marg,

Mumbai – 400 036.

2. Mr. Sanjay Thakorlal Mody,              
3. Mrs. Jashvanti Thakorlal Mody,         (Name of the Complainant No.3

Nos. 2 & 3 Both being partners of       deleted by order dtd.30/01/2012)

Op.No.1 Complainant having their

Address at - 18/19, Dhavantri Bhavan,

 143-A, August Kranti Marg,

Mumbai – 400 036.                         ….. Complainants.    

  V/s.

1.  Canara Bank,

Nationalized Bank Head Office

112, J.C. Road,

Bangalore – 560 002 Having their

Branch Office at

Kemps Corner Branch,

134, August Kranti Marg,

Kemp’s Corner,

Mumbai – 400 036.

2. Mr. Kamlesh Thakorlal Mody,

No. 10, Poonam, Third Floor,

67, Nepeansba Road,

Mumbai – 400 006.                                    ….. Opposite Parties

                    Coram:

Shri. G.K. Rathod                 :   Hon’ble President

Shri. S.R. Sanap                   :   Hon’ble Member

Appearance:  Complainant              –        Adv. Shri. Ramesh Cheulkar

For Opponent No. 1 -        M/s. M.V. Kini & Co. /

Adv. Shri. Ghanshyam Patil

                       For Opponent No. 2  -        Adv. H. Kumar Vaidyanathan/

                                                                   Adv. Smt. Geeta

// J U D G M E N T //

PER SHRI. G.K. RATHOD – HON’BLE  PRESIDENT

The brief facts of the case is that the Complainant No. 1 is a partnership firm duly registered under the Indian Partnership Act and having registered office at above mentioned address.  The Complainant Nos. 2 and 3 are the partners of the Complainant No. 1 partnership firm and the Opponent is the Branch office of the Nationalized Bank.  By the letter dtd. 27/09/2001 , the Complainant firm issued the cheque bearing No. 539219 dtd. 27/9/2001 drawn on Corporation Bank Branch, Mumbai for Rs. 15,00,000/- in favour of the Opponent No.1 to be kept as Fixed Deposit (F.D.) with them for a period of three years jointly in the name of Mrs. Jashvanti Thakorlal Mody,  Mr. Sanjay T. Mody. It is further submitted that just four days prior to the date of maturity and without   demands for repayment made by the Complainants, the Opponent by their letter dtd. 24/9/2004 addressed to the Complainant Nos. 2 and 3, had informed them that Kamlesh T. Mody, one of the joint holder of said FDS by his letter dated 24/09/2004 had instructed them not to allow encashment / withdrawal  of the said FD amounts unless the withdrawal letter/FD receipts were signed jointly by all three Depositors and that the Opponent therefore freezing the subject deposits.  It is further submitted that by letter dtd. 12/10/2004, they pointed out that the said Kamlesh T. Mody had no locus-standi to issue instruction for non payment as the said FDs were the property of the partnership firm, being the Complainant No. 1 and Kamlesh Mody was no more Constituted Attorney of the said firm and that Mrs. Jashvanti Mody being the Complainant No.2  is a senior citizen was eligible for an extra ½ % interest.  The Firm had requested that the deposit be issued showing her name as the first name. They addressed the letters dtd. 4/11/2004 and a petition dtd. 9/11/2004 to the General Manager of the Opponent once again clarifying and explaining the aforesaid position,  thereafter, the Opponent by their letter dtd. 16/11/2004, once again informed the Complainant that the withdrawal could be made only on the joint request of all  the three  Depositors, which was not the condition or obligatory at the time of signing of the FDRs.  Therefore, the Opponent No. 1 illegally and wrongfully with-holding the said amount of Rs.15,00,000/-, constitutes deficiency in service.  Therefore, the Complainant’s claim for the above said amount with interest and losses.  Also prayed for Rs.2,00,000/- as damages for loss caused to the Complainants firm and Rs. 30,000/- towards the cost of the proceedings.

In support of the complaint, the Complainant has also filed affidavit, evidence, documents, written arguments.

(2)               To rebut the allegation, the Opponent No. 1 Canara Bank has submitted written statement.  They have denied entire contents of the complaint in toto and also denied the allegations of deficiency in service from the Opponent and further stated that the allegations of the Complainant are false.  It is further submitted that   dispute between parties are of civil nature and to be decided by the Civil Court, and therefore, this Forum has no jurisdiction to entertain and try this complaint.  It is further submitted that Complainant being a partnership firm and disputes between the parties are of commercial natural and the transactions carried  by the  Complainant are of commercial transactions,  as such, the Complainants are not entitled for any protection and under the Consumer Protection Act.  The complaint deserved to be dismissed.  It is further submitted that vide letter dtd. 27/9/2001, the Complainant issued cheque of Rs. 15,00,000/- to be kept as the Fixed Deposit for a period of three years jointly in the name of (1) Mrs. Jashwanti T Mody, (2) Mr. Sanjay T. Mody and (3) Mr. Kamlesh T Mody and issued FD Receipt of Rs. 3,00,000/- each, and interest may be credited on quarterly basis to their SB Account No. 7927, as more particularly described in the said letter dtd. 27/9/2001 being  exhibit one to the complaint, the Opposite Party further stated that they have not opened  any deposit in the name of  Kamlesh Textiles. 

(3)               The Deposit opened in three joint names as stated above, which was payable either or survivor or maturity.  However, before Deposits get matured, one of the joint Depositor, Mr. Kamlesh Mody instructed them not to make the payments unless receipts are discharged by all the Depositors.  It is further submitted that as there arouse disputes between joint Deposit Holders and neither in the letter dtd. 27/9/2001 nor in A/c Opening Form, it was mentioned that Kamlesh Mody are only Power Of Attorney Holder and hence stand taken by the Complainant Kamlesh Mody has locus standi are false and denied by the Complainant.  It is further submitted that Mr. Kamlesh Mody are one  of the joint Account Holder of the FDs opened and since he has raised objections regarding release of payment of FDs unless receipts are discharged by all the Depositors and it appears that there is a serious dispute between the Deposit Holders and till dispute are dissolved between the Deposit Holders, the Opponents are not in a position to release payment of FDs in favour of the Complainant, ignoring the interest of one of the joint deposit holder as such, the Opponent has acted reasonably and fairly as rules and norms, safeguarding the interest of all the joint Deposit Holders and therefore, the Opponent No. 1 has rightly withhold the payment of FDs as there are serious dispute among Joint Deposit Holders.  There is no breach of contracts, Deposit Opening Form is signed by all the three Depositors and interest was credited in the Joint Account of all the Depositors and not to the Firm M/s. Kamlesh Textiles.  As such, no case is made out by the Complainant against the Opponent. There is no deficiency in service on the part of the Opponent. Hence complaint deserves to be dismissed with costs.  To support the written statement, affidavit evidence, written arguments also case laws cited by the parties.

(4)               Written statement is submitted by the Opponent No. 2 Kamlesh Mody and supported the contents of the Opponent No.1.  Also submitted the written arguments, affidavit evidence.

(5)               From the above facts, the following points arose for our consideration.

 Reasoning :-

(6)               After considering the contents of the complaint and documents produced on record, the Complainant No. 1 is a partnership firm duly registered under the Indian Partnership Act and the Complainant Nos. 2 and 3 are the partners of the Complainant No. 1 partnership firm.  The Complainant being a partnership firm and dispute between  the parties are commercial nature, and transactions carried by the Complainant are commercial transactions, as such, the Complainant is not entitled for any protection under this Act.  We found substance in the submission of the Opponent Nos. 1 and 2.  As per the letter dtd. 27/9/2001, the Complainant issued cheque of Rs. 15,00,000/- to be kept as Fixed Deposit for a period of three years jointly in the name of Mrs. Jashwanti T. Mody, Mr. Sanjay T. Mody and Mr. Kamlesh T. Mody for issue of five  Fixed Deposit Receipts of Rs. 3,00,000/- each and the interest may be credited on quarterly basis to their SB Account No. 7927.  The Opponents have not found any deposit in the name of Kamlesh Textiles, i.e. the Complainant.   On the contrary, Deposit opened in the three joint names as stated above, which was payable either or survivor on maturity.  It is further whispered from the fact that the Opponent No.2 Mr. Kamlesh T. Mody is one of the Joint Account Holder of FDs opened. Since he has raised the objections regarding encashment/withdrawal of payment of FDs  not to allow unless receipts are singed/discharged by all the depositors, the Opponent No. 1 act reasonably and fairly as per rules and norms safeguarding the interest of all the joint deposit holders and therefore, the Opponent No. 1 has rightly withhold the payment of FDs and we found substance in the submission of the Opponent Nos. 1 and 2 as dispute appears to be civil nature. We do not find any substance in the complaint.  In view of the above observations, and considering the dispute between the parties, this Forum has no jurisdiction to decide the matter. Accordingly we answered the point Nos. 1 and 2 negatively.                    

(7)               Hence the following order :

//O R D E R//

1. The complaint stands dismissed.

2. Parties to bear their own costs.

3. Certified copy of this order be supplied to both the parties free of costs.       

                    sd/-xxx                                                        sd/-xxx

(Shri. S.R. Sanap)                                       (Shri.G.K. Rathod)

 Hon’ble  Member                                       Hon’ble President

Note:-  As the pleadings, affidavit, documents, written arguments of the parties are in English, the order in the proceeding is passed for the better knowledge of the parties in English.

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