CIRUCIT BENCH  AT TIRUPATHI

F.A. 378/2006  against C.C. 45/2005, Dist. Forum, Tirupathi

Between:

1. The Chief Executive Officer

The Srikalahasti Co-operative Town Bank Ltd.

Srikalahasti, Chittoor Dist.

2. The Manager

The Srikalahasti Co-operative Town Bank Ltd.

Srikalahasti, Chittoor Dist.                ***                                   Appellant/                                                                                                           Opposite Parties

And

P. Bathemma

W/o. Late P. Guruswamy

Age: 56 years, Katur Village

B.N. Kandriga Mandal

Residing at H.No. 6-6-490

Irla Nagar, Tirupathi.                         ***                                   Respondent/

                                                                                                Complainant

Counsel for the Appellants:                        Mr. V. Sudhakar Reddy,

                                                                   Advocate, Hyderabad.

Mr. G. Ramaiah Pillai,

                                                                   Advocate, Tirupathi

Counsel for the Respondent:                      Mr. M. Ramgopal Reddy

QUORUM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

                                                          &

                                    SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE NINETEENTH DAY OF JANUARY TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

          The opposite party, the  Co-operative Bank preferred this appeal against the order of the Dist. Forum  in directing it to pay the amount covered under the S.B. account of one late P. Guruswamy to the complainant.

          The case of the complainant in brief is that she is the wife of one P. Guruswamy who opened an  S.B. account with the appellant.   He died on 31.3.1998 leaving her as legal heir entitled to the amount.  When she requested the appellant to pay the amount  covered under  the S.B account they did not give any reply,  and therefore she filed the complaint claiming the amount covered under the S.B. account together with interest  @ 9% p.a. and compensation of  Rs. 25,000/- and costs.

          The bank resisted the case.  It alleged that the Dist. Forum had no jurisdiction.   They do not have any objection to pay the amount as per the directions of the competent civil court.  There was no deficiency in service on their part.   In fact they have received an objection letter from one  M. Anasuya  alleging that she was the daughter of  P. Munilakshamma,  who is the first wife of  late  P. Guruswamy.   She also submitted a registered will Dt. 12.7.1993 executed by  P. Guruswamy bequeathing half of the property to her.   Therefore the amount  could not be paid to any person except by an order of  competent Civil Court  and therefore prayed that the complaint be dismissed.

          The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A10 marked while the appellant bank filed affidavit evidence of its Chief Executive Officer and got Exs. B1 to B6 marked.

          The Dist. Forum after considering the evidence placed on record opined that the complainant being the wife of  late P. Guruswamy  has every right to claim the amount, and therefore directed the appellants to pay the amount covered under the S.B. account with interest @ 9% together with costs of Rs. 1,000/-.

          Aggrieved by the said decision, the bank preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.  It ought to have seen that a suit  O.S. No. 49/2006  was filed before the Principal Junior Civil Judge, Srikalahasti  for declaring that the plaintiff therein is entitled to half of the amount lying in S.B. account of appellant bank.  The Dist. Forum did not consider the objection letter received by it from the daughter,  born to the first wife of the deceased.  Unless the complainant obtains  succession certificate from the competent Civil Court  and in view of the will alleged to have been executed by P. Guruswamy  the amount could not have been ordered to be paid to the complainant and therefore it requested that the appeal be allowed.

          The point that arises for consideration is whether the complainant is entitled to the amount covered under the S.B. account?

          It is an undisputed fact that  late P. Guruswamy opened an S.B. account with the appellant bank.  The contention of the bank is that  P. Guruswamy died on 31.3.1998  leaving a registered will  Dt. 12.7.1993 bequeathing half of the property to his daughter M. Anasuya born through his first wife Smt. P. Munilakshamma and the other to his  daughter P. Guna born through complainant.  When the complainant claimed this amount the bank has admittedly received an objection letter from M. Anasuya  disclosing that  late P. Guruswamy  had executed a registered will  bequeathing half of the amount to her she being the daughter of  his first wife and therefore not to pay the amount to the complainant.   It is also not in dispute that  M. Anasuya  filed a suit O.S. No. 49/2006  on the file of Principal Junior Civil Judge, Srikalahasti alleging the above facts and for a declaration that she is the daughter of  P. Guruswamy  and that she is entitled to half of the amount lying in the S.B. account.   In the said suit   not only the bank is a party but also  Smt. Bathemma complainant and P. Guna her daughter.   The Dist. Forum,  despite the appellant has filed the said

objection letter disclosing that  P. Guruswamy has a daughter through his first wife  and execution of  registered will did not take into consideration any of these facts.   It has allowed the complaint without looking into the pleadings raised in this regard.   Undoubtedly, this is highly unsatisfactory way of  disposing of the matter.   It is not known why the Dist. Forum did not take cognizance of  the  registered will said to have been executed by late P. Guruswamy bequeathing half of the  property to his daughter M. Anasuya.

          In the light of above pleadings, the Dist. Forum ought not to have allowed the complaint directing the appellants to  pay the entire amount to the second wife i.e., to the complainant,  more so, when M. Anasuya  has filed a suit before the  Civil Court wherein she sought for a declaration to pay half of the amount basing on the registered will executed by late P. Guruswamy.

          It is also brought to our notice that an injunction was also issued against the complainant not to withdraw  the amount granted by the Dist. Forum.  At any rate, since the suit is pending  for adjudication of  the questions as to the execution of will, we feel it is a fit case that the Dist.  Forum ought not to have determined and issued a direction to the appellant bank to pay the entire amount covered under the S.B. account.  More so, when the civil court has the jurisdiction  where both the parties could agitate the very same questions before the competent Civil Court.   Since the very issue in this complaint is pending  in the Civil Court,  where all these questions would be gone into,  and considering the nature of the dispute, we are of the opinion that the Dist. Forum ought not to have taken up the matter.  It is the Civil Court that is having jurisdiction to determine whether the complainant along with other  legal heirs are entitled to the amount covered under the S.B. account or not

In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed  with an observation that the complainant as well seek the very same relief  in O.S. No. 49/2006.  We direct both the parties to bear its own costs.

The statutory  amount that was deposited by the bank at the time of  preferring the appeal be directed to be withdrawn by the appellant with an observation that the said amount be paid as per the terms of the decree that could be passed by the Civil Court in this regard.

          PRESIDENT                                     LADY MEMBER

                                 Dt.  19. 01. 2009.