PRESENT

          Complainant  by Adv. H.J. Lulia present.                                                             

         Opponent by Adv. Ghanshyam Patil present.   

                                      ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President. )

1. Briefly stated the facts of the case are:

One Mr. Kanji filed suit against father of complainants Mr. before Hon’ble High Court bearing Suit No.1870 of 1977 in respect of , 274, Nagar, , 400062.

2. Mr. Khimji Jethva filed suit against various tenants as per Bombay Rent Act before Small Causes Court. In such proceeding Court receiver was appointed and was directed to recover rent after defraying expenses, the balance amount to be paid to him i.e. father of complainants.
3. Mr. Khimji Jethva was directed to furnish Bank guarantee of Nationalized Bank. The Court receiver called upon him to furnish Bank guarantee of sum of Rs.40,000/- of Nationalized Bank.
4. The Complainants No.3 a constituted attorney vide his letter dated 15.6.1981 made an application to opponent to furnish Bank guarantee to Court receiver so that court receiver, so that receiver will issue a cheque for a Rs.40,000/-.
5. That Mr. Khimji Jethva opened F.D. No.567282/121/81 on 8.12.1981 with interest 10% per annum due date 8.12.1984. He opened saving Bank account No.3588. The court receiver paid sum of Rs.40,000/- Mr. Jethva and credited interest amount in saving account.
6. Mr. Khimji Jethva expired on 13.9.1984 and fresh undertaking was given to Hon’ble for complainants that they will not withdraw the sum of Rs.40,000/-which was  deposited by their father vide F.D. No.567282/12/81, till execution of fresh Bank guarantee.
7. The court receiver informed the opponent by letter dated 30.11.1985 and returned the Bank guarantee. There after complainants sent letters dated 8.9.1986 to transfer said F.D. in their names with interest.
8. The suit No.1870 of 1977 was withdrawn by B.K. Mistry on 30.8.2000. The complainants sent letters from time to time for refund of F.D. amount with interest and visited for the claim of said amount.
9. The Opponent issued letter dated 8.8.2007 requesting for furnishing copy of Probate or other document for further action in the matter. The Complainants issued probate of Will executed by their father in petition No.834 of 1998 on 28.12.2007.
10. The complainants alleged that opponent is guilty for deficiency in service as the said amount in lying in the bank is not taking steps to credit the said amount in their Bank account.
11. The complainants claimed the Opponent Bank is liable to pay Rs. 5,83,756/- with interest at 24% from date of filing complaint. They claimed Rs.5,00,000/- as compensation for mental agony since three decades.          
12.  The opposite party wrote a letter to the complainants on 08/08/2007 and called upon to furnish copy of probate/letter of administration.
13. The opponent sent letter to the complainants on 21/05/2002 and it was informed that, they are unable to trace any old papers of their matter and called upon them to furnish paper, record and pass book and guarantee issued or any proof of deposit. (It is settle principle of law that, bankers are holding the amount of customers as a trustees. It is pertinent to note that, lay man always rely on that, the bank is always keep updated record and there are very seldom chances of mistakes. In this view it is not expected from nationalized bank that, they cannot have the record)
14. There are various complaints and requests are made by the complainants to the opposite party and even to the ombudsman. However, except calling for new document or repeatedly giving the lame excuses opposite party has not taken any concrete step to settle the issue.
15. It is admitted fact that, F. D. of Rs. 40,000/- was due on 08/12/1984 and interest was payable on half yearly rest i.e. on expiry of every six months, the opposite party had agreed to deposit amount of interest to the account of complainants.
16. Ongoing through all the records filled by the complainants and opposite party, we have come to the conclusion that, the complainants has made every effort to get back their legitimate amount. However, the opponent has given very lame excuses including they do not hold record of deposits. It is very unfortunate that, the nationalized bank do not hold the record of depositors. It is pertinent to note that, at no point of time the bank has denied the amount so deposited with them.   
17. In view of the peculiarity of the case and considering the suffering of the complainants and his courage and patience of such long tenure for justice, irrespective of suffering emotional doldrums on account of serious disease like cancer to his wife and on the other hand very unusual behavior of the opposite party, which is not rational. It is pertinent to note that, pursuance for justice for such long period not only require investment of time but also require to incur huge cost and suffering of mental agony. Thus, we are of the opinion that, this is one of the rarest case therefore, complainants is entitle for compensation of Rs. 1,00,000/-.  

18.     In the result , we pass the following order.

                                         O R D E R

1.       RBT Complaint case No.35/2012   is Partly Allowed.

2.       The Indian Overseas Bank is hereby directed to refund the deposit amount of Rs. 40,000/- alongwith interest @ 10% p.a. with half yearly rest as agreed upon within a period of 15 days from the date of receipt of the order.

3.       The Indian Overseas Bank is hereby directed pay to complainants of Rs. 1,00,000/- as compensation for mental agony.

4.         The Indian Overseas Bank is hereby directed pay costs of Rs. 10,000/- to the complainants.  

5.       Copy of this order be sent to both parties.