BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

Dated this the 18^th day of February 2021.

Filed on: 21.02.2017

PRESENT:

Shri. V.S.Manulal President-in-charge

Shri. V.Ramachandran Member

Smt.Sreevidhia T.N. Member

C.C.No.86/2017

Between

O R D E R

V. Ramachandran Member

1) A brief statement of facts of this complaint is as stated below:

The complainant Fr.Joseph Chacko Punchaputhussery is a Catholic Priest leading his retirement life aged 83 years. The complainant states that on 06.02.2018 he had opened a Savings Bank Account with the 2^nd opposite party – Federal Bank Ltd., Pattimattom Branch. On 13.05.2014, the complainant had deposited Rs.18,00,000/- as two F.D of Rs.9,00,000/- each vide F.D No.15480400019219 and F.D No.15480400019227 with the 2^nd opposite party, the amount of which he got out of his ancestral properties.

The complainant desired to form a Charitable Trust in the name of his family with his close relatives as its members. Accordingly a preface for a Charitable Society trust was prepared in which the members and the purpose of the trust has been put into writing on a stamp paper worth Rs.100/-. The original of the same is kept with the opposite party. The original of the preface and the original of the two fixed deposits receipts are kept under the safe custody of the opposite party. The opposite party issued a receipt bearing No. 27/2014 dated 13.05.2014 against the safe custody. The fixed deposit and the Savings Bank account are in the personal name of the complainant. The periodical interest are also credited into the Savings Bank account of the complainant. The intended trust could not be formed after preparing the bye-laws. As per the terms of the bye-laws the Trust ought to have been formed and thereafter the fixed deposits on maturity and after the life period of the complainant will transfer to “Fr.Chacko Joseph Punchaputhussery Charitable Trust” constituted as per the bye-law. But in the absence of a valid trust as visualized by the complainant the fixed deposits can’t be transferred to a name sake trust which is not in existence. The complainant is at present in need of money for several purposes. He is age old and under the care and protection of his near relatives. So he is in need of withdrawal of the F.D.

The 2^nd opposite party is not permitting him to withdraw the fixed deposit on lame excuses. According to the 2^nd opposite party, the F.D are intended for the trust and hence cannot be withdrawn by the complainant. The F.Ds are standing in the name of the complainant and the recitals in the Preface/Bye-laws of the proposed trust/society are only in the nature of a WILL to be transferred to the Trust. Further it is stipulated that during the life time of the complainant he alone has to manage and deal with the F.D. The complainant approached the opposite party with a written request for permission to release the F.D maintained in his name along with a No Objection Certificate from the proposed members of the Trust, but the 2^nd opposite party was not willing even to receive the application. Aggrieved by this the complainant approached the Forum for directing the opposite party to return the F.D. receipts with Nos. F.D. 15480400019219 and F.D. No. 15480400019227 and to release the F.D to the complainant and for a compensation for Rs.1,00,000/-.

2) Notices were issued to the opposite parties 1 and 2 from this Forum and the opposite parties filed their joint version in response to the notice received by them.

3) Version of the 1^st and 2^nd opposite parties

It is stated in their version that there are two Fixed Deposits in the name of the complainant with the 2^nd opposite party. At time of opening of the two Fixed Deposits of Rs.9 Lakh each (Total 18 lakhs) the complainant had specifically informed the 2^nd opposite party that the deposit amounts are the corpus of a Trust formed as “Rev.Fr.Joseph Chacko Punchaputhussery and the interest accrued from the F.D. are to be used entirely for charitable purposes. While opening the Fixed Deposits, the complainant had entrusted the original stamped Trust Deed/Bye-laws with the 2^nd opposite party and also instructed that the original deed and originals of the F.D receipts are to be kept in safe custody of the 2^nd opposite party. The 2^nd opposite party accordingly kept the said original bye-laws and F.D. receipts under safe custody. It is clearly stated in the second paragraph of the preface of the Deed that for the purposes stated in the Deed a Charitable society was formed in perpetuity with a capital of Rs.18 lakhs. Hence the contention that the no Trust was formed but intended to be formed is not correct and sustainable. The purpose for which the interest are to be used is clearly stated in the Deed. In page 4 of the deed in the last paragraph it is clearly stated that under no circumstances the F.D. can be withdrawn from the bank and the Bank Managers of the Bank from time to time shall not permit or agree for the withdrawal of the deposits. The said deed is signed and executed by the complainant and the office bearers/trustees. The complainant had never come to the bank with a request to close the Fixed Deposit and to withdraw the deposits at any point of time. Some persons claiming to be the relatives of the complainant had come to the bank and requested for release of the Fixed Deposit. The officials of the 2^nd opposite party visited the complainant’s residence and met the complainant. During the visit it was revealed that the complainant was not physically fit and hence not capable of taking proper decisions. At the time of visit the complainant has not made any request for closure of the Fixed Deposit. Therefore the opposite party is not in a position to ascertain the genuineness of the request purported to be made by the complainant.

No document is submitted to the opposite party to show that the trust/society formed as per the deed has subsequently dissolved. Opposite party is willing to close the deposits and release the proceeds to the complainant if the trust stands dissolved and if there is a genuine request from the complainant.

4) The evidence in this case consisted of the documentary evidences marked as Exbt.A1 to A3 on the side of the complainant. No oral evidence adduced by the complainant. No oral or documentary evidence adduced by the opposite parties.

5) The issues to be decided in this case are as follows:

1. Whether the complainant has proved any deficiency in service on the part of the opposite parties?

2. If so, whether the complainant is eligible for compensation?

3. Reliefs and costs?

6) Point No. (i)

We have examined the matter in detail and taking into consideration of the circumstances, evidences produced on records and also with respect to the other documents we are coming to the following inferences.

The complainant had made two fixed deposits in the 2^nd opposite party bank vide FD. No.15480400019219 for Rs.9,00,000/- (Rupees Nine Lakh only) and FD No. 15480400019227 for Rs.9,00,000/- (Rupees Nine Lakh only)on 13.05.2014. The complainant had also entrusted a copy of a by law of a charitable trust formed in the name of Rev.Fr.Chacko Joseph Punchaputhussery which is revealed from Exbt.A1 produced by the complainant. As per Exbt.A2 it can be seen that a trust deed is made and its by law is framed on 21^st October 2013 in the form of a charitable deed, in which on page 2 second paragraph reveals that a charitable society is formed in the name of Rev.Fr.Chacko Joseph Punchaputhussery charitable society in which six individuals others than the complainant have made their signature, which is seen executed ona stamp paper worth Rs.100/-. It can be seen as last paragraph of page 4 of the bye law of the above deed that ഒരു കാരണവശാലും Fixed തുക മൂലധനം ബാങ്കിൽ നിന്ന് പിൻവലിക്കുകയോ ചെയ്യാതെ ഇരിക്കാൻ കാലാകാലങ്ങളിൽ മാറി വരുന്ന ബാങ്ക് മാനേജർമാർ ഒരിക്കലും സമ്മതിക്കുകയോ, അനുവദിക്കുകയോ ചെയ്യരുത്. സൊസൈറ്റിയുടെ നിയമാവലി യഥാർത്ഥ (True Copy യും) സ്ഥിര നിക്ഷേപത്തിന്റെ രസീതും എന്നും ബാങ്ക് ലോക്കറിൽ ഭദ്രമായി സൂക്ഷിക്കേണ്ടതാണ്.

Accordingly, the fixed deposit receipts and the fixed deposit receipts and the original of the deed was entrusted for the bank for safe custody. Further on, the paragraph (h) of the bye-law it can be seen that at any time if the society becomes defunct, the deposited F.D amount and the amount in the S.B Account shall be given to the Arch Bishop of Ernakulam and Angamali, who are made as nominee of the complainant in the bank.

As per instruction of the Commission, the original fixed deposit receipts were produced by the bank and which was returned to the bank after taking photocopies of those receipts.

The following endorsements are also seen made on the receipts of the F.Ds.

(1) NOT TRANSFERABLE

(2) INT : TO SOCIETY S.B

(3) NOMINATION REGISTERED

This deposit is made in the name of Joseph Chacko Punchaputhussery Charitable Trust, St. Joseph’s Church, Ernakulam, India Pin-683 562.

The opposite party in their version has stated that as per the trust deed executed and handed over the opposite party for safe custody, it is laid down that under no circumstances the F.D can be withdrawn from the bank and the Bank Manager of the bank from time to time shall not permit or agree for withdrawal of the deposits. Further, the opposite parties alleges that the complainant had never come to the bank with a request to close the fixed deposit and to withdraw the deposit at any point of time. The officials of the 2^nd opposite party visited the complainant’s residence and met the complainant and found that the complainant is not physically fit and not capable of taking proper decisions.

Further and above, no documents is submitted in the bank or produced before the Commission to show that the trust/society which is formed as per the deed was subsequently dissolved. It is to be noted at their juncture that the bank is stating that they are willing and ready to close the deposits and release the proceeds to the complainant if the trust stands dissolved and there is a genuine request from the complainant. The main issue is regarding the validity and genuiness of the trust deed executed by the complainant. A perusal of the trust deed produced and marked as Exbt.A2 in which there is no recital regarding the revocation of the trust deed by the complainant. As far as the present complaint is concerned the existence of the trust and genuity of the trust and adherence of conditions laid down are the issues raised by the opposite parties which are beyond the purview and jurisdiction of this Commission.

In these circumstances, we are of the opinion that the complainant have failed to prove neither deficiency of service or unfair trade practice from the side of the opposite party. Therefore, point No.(i) is proved against the complainant.

Point Nos. (ii) and (iii)

Since point Nos.(i) is proved against the complainant, point Nos. (ii) and (iii) deserves no merits and hence the compliant is dismissed. No costs.

Pronounced in the open Forum on this the 18^th day of February 2021.

Sd/-

V.Ramachandran, Member

Sd/-

V.S.Manulal, President-in-charge

Sd/-

Sreevidhia T.N., Member

Forwarded by Order

Senior Superintendent

APPENDIX

Opposite party’s Exhibits :: Nil

Date of Despatch ::

By Hand ::

By Post :;

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