FA.No.389/2009 against  CC.No.1045/2007 District Consumer Forum-II, Hyderabad.

Between:

A.Raghavender Rao,

S/o.late Krishna Murthy, Aged 56 years,

Occ: Partner of M/s.Ramalingeswara Oil Mill,

Uppugundur, Prakasam District.

…Appellant/Complainant.

And

M/s.Andhra Bank,

Sultan Bazar, Hyderbad,

Rep. by its General Manager.

…Respondent/Opp.Party.

Counsel for the Appellant          :  Mr.T.Surya Satish.

Counsel for the Respondent     :  Admn.stage.

QUORUM: HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, MEMBER,

AND

SRI K.SATYANAND, MEMBER.

TUESDAY, THE TWENTY THIRD DAY OF JUNE,

TWO THOUSAND NINE.

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

*******   

1.         Having heard the learned counsel for the appellant and having perused the record, we are of the opinion that the matter can be disposed of at the stage of admission.

2.         Appellant is the unsuccessful complainant.

The case of the complainant in brief is that he is the son of late A.Krishna Murthy, who pledged gold ornaments weighing 650 gms, nine LIC policies, four ITC Limited debentures as a guarantor for the loan borrowed by M/s.Ramalingeswara Oil Mill, a partnership firm, from the opposite party bank.  Later the bank filed O.S.No.11/1993 against the partnership firm for recovery of the amount.  Subsequently, the account of the firm was transferred to one APITCO Limited which in turn discharged the liability under one time settlement scheme, evidenced under discharge certificate dated 01.09.2006.  APITCO Limited also requested the bank to return all the securities to the guarantor as the loan account was settled.  Subsequently,  Krishna Murthy, the guarantor died leaving him, his brothers and others as the legal representatives, who are entitled to the gold ornaments, LIC policies and ITC Limited debentures.  When he requested the Chief Manager of the bank by letter dated 15.02.2007 followed by registered notice, the bank did neither give reply nor returned the securities.  Therefore, he filed the complaint for recovery of the gold ornaments weighing 650 gms, nine LIC policies, four ITC Limited debentures, besides Rs.2,80,000/- towards damages, Rs.50,000/- towards compensation for causing mental agony and Rs.20,000/- per month from the date of complaint till the opposite party returned  the securities and costs.

3.         The respondent bank resisted the case.  It alleged that the securities were made by a third party and not by the complainant.  The manager of the bank had made it clear to the complainant that the securities would be released only to the person who deposited the securities or to his legal heirs on furnishing succession certificate.  Neither the complainant nor any proper person had approached the bank with succession certificate.  It has not deliberately retained the securities.  Neither the complainant nor late A.Krishna Murthy was a customer of the bank.  Late Krishna Murthy was only a guarantor, and therefore, not a consumer under the Consumer Protection Act.  It is the civil court that could adjudicate the matter and therefore prayed for dismissal of the complaint with costs.      

4.         The complainant in proof of his case filed his affidavit and got Exs.A.1 to A.10 marked, while the bank filed affidavit of its Branch Manager reiterating the facts mentioned in the counter and did not file any documents. 

5.         The District Forum after considering the evidence placed on record opined that late A.Krishna Murthy was a guarantor and not a customer of the bank.  Since the guarantor died leaving legal heirs, unless the complainant files succession certificate, he was not entitled to the securities pledged by late A.Krishna Murthy as a guarantor.  At any rate, the consumer forum was not competent to deal with the matter and therefore, dismissed the complaint.

6.         Aggrieved by the said order, the complainant preferred this appeal contending that the District Forum did not appreciate either the facts or law in correct perspective.  It ought to have noticed that late A.Krishna Murthy, who pledged gold ornaments, LIC policies, Bonds, etc.  was not a debtor and therefore there is no need to file succession certificate.  The complainant being a  legal representative and in the light of various documents like birth certificate, ration card, election card, passport, educational certificates, etc. he was entitled to the securities, more so after discharge of the amount by the APITCO limited to which late A.Krishna Murthy stood as guarantor and therefore prayed that the complaint be allowed.

7.         The point that arises for consideration is whether there are any good and justifiable grounds to interfere with the order of the District Forum?

8.         At the outset, it may be stated that the complainant filed the complaint representing himself as son of late A.Krishna Murthy seeking return of the securities pledged by his father as a guarantor towards debt due by a partnership firm under the name and style of Ramalingeswara Oil Mill,  on the ground that he is one of the legal representatives and that after the original debt was discharged, he was entitled to the return of ornaments, etc.

9.         No doubt, along with the appeal, he filed general power of attorney dated 30.04.2008 said to have been executed by the other legal representatives in favour of the complainant authorizing him to file the case before the consumer forums and other authorities besides seeking custody of gold articles, LIC Policies, ITC Limited debentures, etc. deposited by late A.Krishna Murthy towards the loan borrowed by the partnership firm, M/s.Ramalingeswara Oil Mill.  He also filed “succession certificate” given by the Thasildhar, Nagulpadu Mandal, Prakasam District dated 22.04.2008, wherein he declared the complainant “as a  successor” of Amara Krishna Murthy.  He also mentioned the names of other family members eight in number who said to have executed general power of attorney which we have mentioned above.

10.       At the cost of repetition we may state that the complainant did not file the complaint representing as a general power of attorney holder of his family members.  He filed the complaint in his individual capacity and did not produce these two documents viz. general power of attorney and succession certificate either before the bank or before the District Forum.  Even otherwise these two documents cannot occupy the place of a succession certificate contemplated by Sec.370 and 214 of the Indian Succession Act.  It is not known as to the competency of a Tahasildar to issue succession certificate.  On one hand he alleges that there is no need to file succession certificate,  however manages to obtain from an incompetent authority to prefer the claim.  The bank is justified in not acting on the claim made by the complainant for return of securities.   

11.       Since the complainant could not prove that he is solely entitled to the securities as claimed by him, the District Forum was justified in dismissing the complaint on the ground that of locus standi, though not employed the said expression.  Apart from it late A.Krishna Murthy was not a customer of the bank.  He was only a third party guarantor.  The bank could not have determined the rights of the complainant pertaining to the securities of the deceased guarantor to be returned to him or as to the legal representatives of the guarantor, more so in the absence of any authoritative pronouncement by the competent court for return of the securities to the complainant.  From his own showing, it is beyond doubt, that the complainant is not the sole representative to receive these securities pledged by his late father when the other legal representatives are still alive and equally entitled to the securities.  The Bank cannot return them when other legal representatives did not appear before them nor made representation to give those documents to the complainant.  The dispute cannot be termed as a consumer dispute.   

12.       We do not see any infirmity in the order of the District Forum in this regard.  This is not a fit case where the appeal could be admitted. In the circumstances, the appeal is dismissed at the stage of admission.  However, no costs.   

PRESIDENT    

MEMBER   

MEMBER 

Dt:23.06.2009.