PRESENT
Complainant by representative Adv. Shri.Amul Jawale present.
Opponent – Absent.
ORDER
(Per- Mr. S. D. MADAKE, Hon’ble President.
- The complainant has filed complaint through power of Attorney holder who is her daughter namely Pushpa Gyamlani. According to complaint para 4 on 5.1.1990 her father approached opponent bank for opening a Saving Account in the name of Harchumal Hotchand ( HUF). Her father was Karta and mother was co-parcener in said account.
2. The account was opened on 1.2.1990 , her father did not nominate any body in the said account. The said account was only being operated by my father and my mother as they were only signatories in the said account. The documents regarding partition were submitted in order to avoid future disputes.
3. In para 10 of complaint, it is stated that on 21.3.2007 her brother Shankarlal addressed letter to Manager intimating father’s death and requesting the Manager to allow him as a Karta of said HUF . He was allowed to operate account without consent of her mother i.e. complainant.
4. The complaint shows that Shankarlal in connivance and collusion with bank manager opened a new Saving account No. 12164 and amount of Rs. 12,02,563/- withdrawn from earlier account was transferred in new account.
5. The complaint shows that illegality and fraud played by Shankarlal upon complainant as her name is not included in the new Saving account . The bank caused loss of Rs. 12,02,563/- by fraudulent Act.
6. The complaint shows that criminal case was filed against Manager and Shankarlal. It is prayed that new HUF account be closed and earlier Accouont be re-opened. The amount of Rs. 1,22,563/- be transferred in old account with 18 % p.a..
7. The opp. No. 1 to 3 filed written statement and resisted the allegations made in complaint. All allegations are denied.
8. The opp. No. 1 to 3 stated that upon death of Karta the HUF account was closed on the basis of letter of Shankarlal dated 21.3.2007 and new account was opened on receipt of Account opening form from Shankarlal and balance in the old account was transferred to new account.
9. It is contended that, all relevant documents were filed in Support of opening new account and same was considered on merit. In Banking law, there cannot be two accounts in same name and on death of Karta the said account has to be closed.
10. The opp. No. 1 to 3 submitted that after receipt of complaint from the complainant , the said new account has been frozen and there is a balance of Rs. 20,69,441.96/- ( Twenty lacs sixty nine thousand four hundred forty one and ninety six paisa).
11. The opp. No. 1 to 3 stated that Shankarlal filed Civial suit in Hon.High court claiming rights and interest in all properties, wherein complainant is a party defendant. It is stated that police has not taken note of complaint against bank Manager. The prayer is made for dismissal of complaint with cost.
12. The documents show that on 5.1.1990 account opening form was filed for opening account in the name of joint Hindu family firm. The name of complainant was shown as Co-parcener. The account No. 4694 was in the name of complainant.
13. The opponent bank was under an obligation to obtain consent of complainant who was shown as coparcener, prior to enter the name of Shankarlal as Karta. The failure to do so is serious omission. It is pertinent to note that, the name of complainant was not entered in new account No.12164.
14. The complainant’s name is wrongfully not included in the new account and amount which was lying in the old account is transferred in new account, causing wrongful loss to her. The employee of opponent failed to protect the interest of valued consumer who is Senior citizen of 89 years.
15. The act of opponent falls prima facie in the category of criminal breach of trust as defined under section 405 of Indian penal code. The claim of compensation has to be based on the basis of examination of witnesses.
16. The issue of balance available in the new account also requires examination of witnesses. Admittedly, complainant alleged an amount of Rs. 12 lacs was transferred in new account from old account. Admittedly opponent immediately frozen the new account after receipt of complaint and there is balcnce of Rupees twenty lacs. To decide this issue and determine liability we are of the view, that all these issues are required to be decided by filing civil suit.
17. The issue regarding the interpretation of partition deed and who can be included as Karta, after death of husband of complainant also requires detail recording of evidence.
18. In the result , we pass the following order.
O R D E R
1. RBT Complaint case No.509/2011 is rejected.
2. The complainant is entitle to seek relief by filing regular civil suit.
3. Parties to bear their own cost.
4. Copy of this order be sent to both parties.
