SRI.K. VIJAYAKUMARAN, PRESIDENT.

            This is complaint for a direction to the opp.party to allow the complainant to  withdraw the interest  from his  fixed deposit, compensation and costs.

The averments in the complaint can be briefly summarized as follows:

          The complainant is an account holder having S.B account No.24262 with the opp.parties and he is a consumer  under the provisions of Consumer Protection Act.   The complainant has opened the account for the purpose of depositing  an amount as fixed deposit for withdrawing the  the interest for his livelihood.  On 9.8.2002 the complainant had deposited an amount of Rs.2,45,000/-  as fixed deposit  for a period upto 3 years  which was subsequently renewed up to 9.8.2010.  The interest of the deposit was being drawn by the complainant through the above SB account till 11.9.2005.  On 11.2.2006  when he approached the first opp.party to withdraw  the interest  he was not permitted for reasons known to the first opp.party only.   The complainant is an age old  and sick person. Therefore at the time of  making the deposit he has allowed to  include  the name of  his son K.P. Vinod  in the account as a nominee.   The then Manager  of the Federal Bank, Anchal  is a friend  of Vinod and  included the  above said Vinod Kumar  name as join account holder.   The 1^st opp.party is well aware of the fact that the amount  is deposit ed in  the bank by the complainant and nobody is having any manner of right over it.   The above fixed deposit was renewed  as per the instructions  of the complainant .  On 20.2.2006 the complainant issued an advocate notice to opp.parties  requiring  to allow him to withdraw the interest.  But the first opp.party did not permit the  complainant to  withdraw  the interest  and hence the complaint.

          The opp.parties  1 and 2  filed a joint version contending that the complaint is not maintainable.   The complaint arose not out of   any deficiency in service  and unfair trade practice.   The cause  of action arose  out of a dispute between the holders of the fixed deposit account opened  and operated jointly and the same is purely in the nature of a  civil  dispute  Who is the real owner of the amount deposited under the Fixed Deposit  account or who is eligible to receive the interest from the  said Fixed deposit and  in what   ratio etc are issues to be  decided by a competent civil court.  Until then the opp.party has got only the  status of a garnishee and therefore  this Forum has no jurisdiction to entertain this complaint.  The alleged complaint  is not out of any consumer dispute.   The opp.party is always prepared and willing to disburse the principal amount along with the interest  accrued at the agreed rate  as per the direction of this Forum or a competent court.  The averments in para 1 to 4 are false and hence denied.   The deposit was opened on 9.,8.2002 with A/c.No0.8875 for a sum of Rs.2,45,000/-  initially for a period of one year in the joint names of the complaint  and one K.P.  Vinodkumar who was the first holder and the complainant is the second holder  having  common address. Subsequently  the FD account was renewed .  The periodical interest accrued in the account had been credited to the savings accounts of the complainant .  The transfer of periodical interest  to the account  had  to be stopped on 16.11.2005, since there was a dispute regarding withdrawal of interest between the joint account holders.       The contention that  his son K.P Vinod Kumar  is only the nominee is  false and hence denied.   From the very beginning  the account  was opened and operated  jointly.  The averments in para 5 and 6  are false and hence denied.  On 16.11.2005  the 1^st opp.party   had intimated  the complainant that the bank has received written instruction from Sri. Vinod  requesting to stop the  transfer of interest accrued  in the SB account referred to in  the complaint  The 1^st opp.party  informed both the complainant as well as his advocate that the bank is prepared to disburse the principal amount as well as the accrued interest  if they were able to sort out the matter and come up with any joint instructions.   The averments in para 7 is not  in accordance with the relevant rules and laws.  One of the joint account holders of an account which is operated jointly has no right  to operate the account independently in the absence of joint instructions  and hence neither the complainant can withdraw the entire amount  along with the accrued interest  nor the opp.party has any right  or duty to disburse  amount to any one of the operators  until the written joint instructions is filed.  There is no deficiency in service on the part of the opp.party and  misconceived groundless  false.   Hence these opp.parties prays to dismiss the complaint.

The 3^rd opp.party filed a separate version contending that the complaint is not maintainable either in law or on facts .   The complaint was filed suppressing material facts.    An amount of Rs.2, 45,000/- was deposited by the 3^rd opp.party   who allowed the complainant  who is none other than  his father   to withdraw the amount till 9.8.2003 , and for that purpose alone the name of the complainant was happened  to be entered in the account.   The 3^rd opp.party had deposited the amount  for the purpose of constructing a home when the 3^rd opp.party attempted to withdraw the amount the complainant made baseless contentions and disagreed to withdraw the amount .    The complainant had made a strange contention  that he had opened the FD account and the name of the 3^rd opp.party   was included only as a nominee.  The said amount is the 3^rd opp.party‘s share over the family property sold.   There is an agreement among t the complainant, 3^rd opp.party,.  3^rd opp.party’s mother and sister which will reveal  the truth.   There is no deficiency in service on the part of the opp.party.   This opp.party  has deposited the amount and so  he has got every right to consider the instructions of the account holder and the complaint is liable to b e dismissed.

Points that would arise for consideration are:

1.     Whether  the complaint is maintainable?

2.     . Whether there. Is deficiency in service on the part of the opp.parties?

3.     Reliefs and costs,

For the complainant PW.1 is examined.   Ext. P1 to P5 are marked

Points:

          Admittedly the Fixed Deposit of Rs.2,45,000/-  in the opp.party bank is in the name of the complainant and   3^rd opp.party jointly who are respectively father and son.   There is also no dispute that originally the interest accrued on the Fixed Deposit was being credited in the account of the complainant and the payment was subsequently  stopped  which according to opp.parties 1 and 2 is as per the instruction of opp.party 3.  It goes without saying that a depositor is entitled to get interest on his deposit.   The entire interest accrued was being credited to the account of the complaint as per the standing instruction of the parties which was cancelled by the opp.parties 1 and 2 on the request of opp.party 3  The learned counsel for the complainant would argue that unilateral cancellation of standing instruction is unsustainable.

          Through the complainant would state that the Fixed Deposit amount belongs to him and the  name of opp.party 3 was included as a nominee the copy of FD receipt produced by opp.party 1shows that  that contention  is not true and the amount is   in the joint names of the complainant  and opp.party3 .  Opp.party 3 has raised a dispute with regard to the right over the Fixed deposit amount  can be seen from the evidence adduced.   Such a dispute can be adjudicated by a competent civil court only and opp.party 3 ought to have approached the   Civil Court for the same.  But even after the expiry of 6 years he has not made any such movement is obvious from the non-production of any evidence in this regard

The learned counsel for the opp.party 1 and 2 argued that when money is deposited in the joint names unless it is proved that there was a manifest intention for the other person that it must go to the 2^nd person under law the 2^nd person can hold it only as a trustee, relying on the decision of the High Court of Kerala reported  in 2008 [1]  KLT SN 33 [case No.26] What was the intention behind the deposit in joint account  by the complainant and opp.party 3 is not forth coming.  The contention of the complainant is that he is the absolute owner of that amount.  The instruction given to opp.party 1 bank by opp.party 3 regarding payment of interest to the complainant  at the time of making deposit was terminated unilaterally.   According to the complainant the bank should not have stopped payment of at least ½ the interest accrued to him as the opp.party 3 can issue instruction only in respect of his share of interest.   There is some force in that contention.   The complainant has not sought for withdrawal of the fixed deposit.   When two persons jointly makes a Fixed deposit the normal presumption is that they have equal rights over the amount until the otherwise is proved.  Opp.party 3 can very well withdraw his consent regarding payment of his share of interest to the complainant. The action of the bank in stopping payment of interest to the complainant on the basis of such instruction can be appreciated for some time.  But how long?    The burden is on the person who issued the instruction to establish within a reasonable time  that he alone has right over the FD amount land the entire interest which opp.party 3 has not cared to do.  The opp.party 1 bank is not justified in  not issuing any direction to opp.party 3 to produce authority  within a reasonable time rather than relying on the instruction of opp.party 3 for more than 6 years and deny payment of at least lhis shares of interest to the complainant .  In these circumstances the contention of the complainant that there is collusion between opp.parties 1 and 3 cannot be ignored.   We feel that opp.party 1 bank should not have stopped payment of interest to the complainant indefinitely accepting the instruction of one of the  account holder ignoring the right of the other person especially when opp.party 3 has not produced any material showing his absolute right prima facie over the Fixed Deposit and seek shelter on the alleged dispute between the parties  

As pointed out earlier though opp.party 3 raised a contention in the version that he is the absolute owner who  has deposited the FD  amount and allowed the complainant to withdraw the interest  as he is  his father no material, worth believable,  was produced to establish that contention.  He has also not turned up to tender evidence.  Opp.parties 1 and 2 have also did not adduce  any evidence  to show that the Fixed deposit amount absolutely belongs to opp.party 3  who has right to instruct stoppage payment of interest to the complainant .  However opp.party 1 has produced a photocopy of the Fixed Deposit receipt along with their version which shows that the Fixed deposit was made jointly by the complainant and opp.party 3 .  Had opp.party 3 any absolute right over the FD he would have filed suit immediately after the filing of this complaint.   From the conduct of opp.party 3 in not approaching any civil court to get his rights over the Fixed deposit declared, after issuing instruction to stop payment of interest to the complainant who is none other than his father it is obvious that his only intention is to harass the complainant who is running from pillar to post to raise his livelihood.  The complainant at the time of hearing submitted that he is unable to raise money to file a civil suit and that his inability is being utilized by his son .  The lacks of bonafides  on the part of opp.party 3 who is claiming absolute right over the Fixed deposit can be gathered from the prolonged inaction on his side.

The complainant is a senior citizen aged more than 65 years and having no known sources of income other than the interest received by him from the FD.  Opp.party 3 has also no case that complainant has any other income.   The complainant has not applied for withdrawal of amount but request for interest in respect of the Fixed deposit  amount  over which he has also right.  In these circumstance we find that we shall be justified in issuing a direction   that until the dispute is settled by the  competent Civil Court the complainant must be given  his share of interest..

In the result the complaint is allowed  in part, directing the opp.parties 1 and 2 to pay  50% of the interest accrued in the above FD to the complainant till the matter is adjudicated by competent civil court.  No costs.

            Dated this the 30^th day of June, 2009.

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I N D E X

List of witnesses for the complainant

PW.1. K. Kuttappan

List of documents for the complainant

P1. –Pass book

P1 [a] . – Pass book [printout]

P2. – Advocate notice

P3. – Reply notice

P4. – Letter dt. 20.2.2006

P5. - Agreement