Heard learned counsel for both the sides.

2.        Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.        The case of the complainant in nutshell is that complainant has been nominated by one Purusotam Malla in the account opened with opposite party-Bank. After retirement from service, Sri Malla took shelter with the complainant. It is alleged that Sri Mall has no legal heir or immediate survival for more than seven years till his death on 30.10.2009. After the death of Sri Malla, the complainant claimed to be the son because during the stay with complainant, the complainant has obtained confidence of Sri Malla and that matter has been established by means of an affidavit duly executed by Sri Malla. It is alleged that one Bikram Malla, who claimed to be the natural born son of deceased Purusotam has filed a suit claiming his status which is pending before the learned Civil Judge(Senior Division), Jagatsinghpur.  The said Bikram Malla also filed a petition before the opposite party-Bank claiming the deposits of Sri Purusotam Malla. Since the opposite party-Bank did not pay the same to complainant, complaint petition was filed.

4.        The opposite party filed written version stating that there is a civil suit being C.S.No.57 of 2010 along with I.A. No. 52 of 2010 pending before the learned Civil Judge for which this Forum lacked jurisdiction to proceed with the matter. The opposite party-Bank has submitted that when the civil suit is pending, the complaint petition is not maintainable.

5.        After hearing the learned counsel for the parties, learned District Forum passed the following order:-

                “xxx  xxx  xxx

                In the result, this complaint is allowed on contest against the O.P.Bank without cost. The O.P. Bank shall do well to release the amount to complainant within 45 days from the date of order. The complainant shall have to submit vacate order of injunction along with undertaking to the effect that the said sum may be recovered from him in process of law by law of succession or inheritance to get the service from O.P. Bank.”

6.        Learned counsel for the appellant submitted that learned District Forum has committed error in law by overlooking the order passed by this Commission in R.A.No.42 of 2010 which was preferred to by Bikram Malla, who was unsuccessful before the District Forum to be  added as party under Order I, Rule 10 of the CPC. In that revision petition, this Commission has observed that consumer petition is not maintainable. In spite of that, the learned District Forum passed the aforesaid order. Since, the learned District Forum  without considering all these submissions and order of this commission, passed the impugned order which is liable to be set aside.

7.        Learned counsel for the respondent submitted that this Commission has already observed that consumer complaint is maintainable. He submits that learned District Forum has taken a view that under Section 3 of the Act, consumer complaint is maintainable even if civil suit is pending.

8.        Considered the submissions, perused the DFR including the impugned order.

9.        It appears from the pleadings and submissions of both the parties that Purusotam Malla has got bank account with some deposits and the bank account has the nominee who is no other than the complainant. It is also admitted fact that Bikram Malla claiming to be the son of Purusotam Malla, claimed the amount from the bank and he has also filed civil suit to declare his status and deposits of Purusotam Malla. When there is an attempt in the civil suit for declaration of status of Bikram Malla,  son of Purusottam Malla, this dispute should not be placed before the Consumer Forum to decide. This Commission has rightly observed in R.P.No. 42 of 2010 which has arisen from the order passed in complaint case No. 22 of 2010. Therefore, this commission has clearly passed the order in the last part of the order which is as follows:

                “xxx   xxx   xxx

                Mr. J. Patnaik, learned counsel for the petitioner produces before us the notice in the said civil suit no. 57 of 2010, wherein this revision petitioner-Bikram Mall is the plaintiff and Pradyumna Kumar Nayak is defendant no.1 and Chief General Manager, State Bank of India, ADB, Jagatsinghpur is defendant no.2. When the matter is subjudice and the appropriate Forum is the civil court, which is competent to decide the title and the claim over the account of the deceased, the consumer complaint no. 22 of 2010 is absolutely unnecessary. When parties are claiming to be the nominee and natural born son of the deceased Purusotam Mall, this type of dispute is not at all maintainable in the Consumer Fora and the Consumer Fora cannot decide and adjudicate the said dispute. For that, we are not inclined to interfere with the aforementioned order of the District Forum and direct dismissal of the consumer complaint no. 22 of 2010 pending on the file of District Forum, Jagatsinghpur.

                The revision is disposed of accordingly.”

10.     With the above observation when the Commission has taken the view that the complaint is not maintainable, the impugned order should not have been passed. However, after the evidence is adduced, there is no change to the observation made by this Commission. Therefore, the complaint is not maintainable and as such, the impugned order is also passed without jurisdiction. Therefore, the same is set aside.

11.    The appeal stands allowed. No cost.

DFR be sent back forthwith.

           Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.