This case is coming for final hearing on 05-12-2014 in the presence of M/s.Sri P.Mariadas, B.Ganesh Patro and K.N.Durga Prasad, Advocates for Complainant and Sri K.Sankar, Advocate for Opposite party and having stood over till this date, the Forum delivered the following.
: O R D E R :
(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)
The Complainant filed the present Complaint against the Opposite Party bank on 17.10.2013 and requested the Forum (1) to pay an amount of Rs.10,23,884/- (which was kept under 15 FDRs with the Opposite Party-Bank), along with interest @ 24% p.a. till realization (2) to pay an amount of Rs.3,00,000/- towards compensation for causing mental agony, stress and anxiety to the Complainant (3) to pay an amount of Rs.2,000/- towards costs to the Complainant.
The brief facts are as follows:- The Complainant is the customer of the Opposite Party having deposited an amount of Rs.10,23,884/- by way of 15 Fixed Deposits on her name in Opposite Party Bank. After demise of her husband on 10.03.2012, Complainant noticed that the valuable documents including the original FDR bonds issued by the Opposite Party are mis-placed and initially she thought that either misplaced or be lost. On such enquiry it was found that the said 15 FDRs was stolen away by her daughters and were in the possession of her daughters. On repeated requests, her daughters tried to blackmail her with a plea that the said FDR Bonds has to be shared by all the children and the complainant equally. Thereafter they have filed the said original bonds in the court and filed a Civil suit for partition of the FDRs equally among the Complainant along with her son & 3 daughters equally. The said act of her daughters in claiming the share in the FDRs pertaining to the amounts to harassment towards the Complainant. On 3.4.2013, Complainant requested the Opposite Party to issue duplicate FDR bonds in place of the missing FDRs by executing the Notarised Indemnity Bond on 20.04.2013. When the Opposite Party asked for clarification with regarding to the misplacing or lost of the FDRs from the custody of the Complainant, the Complainant gave a detailed reply on 3.6.2013 narrating the entire facts that the FDRs were taken away by her daughters and she is aware of that fact. Even the Complainant has requested the Opposite Party on 6.6.2013 either to pay the value of the 15 FDRs or else to include her son Ganesh Kumar as the Nominee in all the 15 FDRs. Thereafter the Opposite Party has given reply on 19.06.2013 that since the original bonds are filed in court by the Complainant’s family members, the duplicate bonds cannot be issued and at the same time, even after repeated requests for refund of the FDR amounts also, the Opposite Party not responded and Opposite Party is simply stating that as the FDRs are held up in the Court, the Opposite Party cannot issue duplicate bonds and also they cannot release the amount pertaining to the 15 FDRs.
Finally the Complainant having vexed with the attitude of the Opposite Party Bank got issued Legal Notice dt. 8.8.2013 to the bank for payment of the 15 FDRs which were lying in the Opposite party Bank. As the Complainant is aged about 82 years and she sustained knee injury to her left leg, she is bedridden and she is badly in need of money. The rejection of the Opposite Party bank in either changing the nominee in all the 15 FDRs or by refunding the values of the 15 FDRs amount to deficiency of service and thereby the Complainant has filed the present complaint seeking reliefs as sought for.
Notice served to the Opposite Party. Pro et contra, on behalf of Opposite Party a detailed counter and stated as follows : The Opposite Party is admitting that the Complainant has kept an amount of Rs.10,23,884/- by way of FDRs on her name in the Opposite Party bank. As stated in the letter dt.3.4.2013 addressed to the Opposite Party that her Accountant V.Murali, son-in-law of K.Madhusudhana Rao i.e. husband of Smt.K.Aruna (daughter of the Complainant) and Smt.K.Aruna are dealing with the bank transactions on behalf of Complainant. The said facts are not known to the Bank. Though she has requested the bank to stop the payment to Sri V.Murali, K.Madhusudhana Rao and Smt.K.Aruna, in the Notarised Indemnity letter dt.20.04.2013, she herself admitted that the original bonds are missing and requesting for the duplicate bonds.
On 26.4.2013, the Opposite Party Bank received a Lawyer’s Notice dt. 24.4.2013 from P.Ravi Kiran, Advocate issued on behalf of Complainant’s daughters (1) Smt.Madhumathi Patnaik (2) Rajyalakshmi Patnaik (3) K.Aruna stating that a Civil suit was filed vide O.S.No.131/2013 on the file of VII Addnl District Judge, Visakhapatnam against the Complainant and her son Sri K.Ganesh Kumar with regarding to the partition of the house property along with the FDRs which were on the name of the Complainant. Then after receiving the lawyer’s notice from Sri P.Ravi Kiran, Advocate, Complainant submitted another letter dt. 6.6.2013 to change the Nominee in all 15 FDRs including her son Ganesh Kumar as “nominee”. On 20.02.2013, the Opposite Party Bank received Notice regarding IA 646/2013 in OS 131/2013 from VIIth Additional Districts Judge Court, Visakhapatnam along with Plaint copy. Basing upon the said Civil Suit the Opposite Party has to come to the clarification whether the bonds were stolen or lost or else they were misplaced. But as seen from the Civil Suit plaint it reveals the originals were in the Hon’ble VIIth Addl District Judge Court. So the bank could not issue the duplicate certificates in her favour and at the same time even the amount of the 15 FDRs cannot be given to the Complainant as a Civil Suit is pending before the VIIth Addl District Judge Court. Hence the prayer sought by the Complainant is not binding on the Opposite Party and the Complaint is dismissed with costs.
While the both parties are filed their evidence, one of the daughter Smt.K.Aruna (Mentioned in the Letter Dt.3.4.2013 to the OP/Bank) filed I.A.160/2014 in CC 239/2013 along with the Plaint copy, IA 437/2013 in OS 131/2013 with the Docket proceedings of the Hon’ble VII Addl District Judge Court. In that IA 160/2014 the contention of the Complainant’s daughter Smt.K.Aruna is, she has to be impleaded as a party in the Complaint, as she is the nominee in some of the FDRs so that she can be impleaded as one of the Complainant in the present complaint. On perusing the facts and circumstances of the plaint copy of 131/2013, IA 646/2013 in OS 131/2013, IA 437/2013 in OS 131/2013, wherein the Temporary Injunction is granted with regarding to the Item No.2 i.e. Suit schedule property belongs to the Complainant’s family along with the legal provisions and case laws, this Forum opined that the daughter of the Complainant Smt.Kallepalli Aruna is not entitled to be impleaded in the present Complaint and the IA 160/2014 in CC 239/2013 is dismissed on 27.08.2014. Thereupon after receiving the Order in IA 160/2014 from the Forum, the Complainant’s daughter has not chosen to file any appeal by way of Revision in the Apex Court or in any other Court of law.
On perusing the pleadings of the both sides along with facts and circumstances, the Forum framed the following pointsfor consideration:
Whether the Complaint can be entertained before this Forum though the monetary values i.e. 15 FDRs including other FDRs are interlinked with the CC 131/2013 filed by the Complainant’s 3 daughters against the complainant and her son and the principle of subjudice is applicable to the present complaint;
Whether there is deficiency of service on part of Opposite party
To what relief
The Complainant filed her Evidence Affidavit and on her behalf Exs.A1 to A12 are marked. On behalf of the Opposite Party, Sri K.Shyam Kishore in the capacity of the Chief Executive Officer filed Evidence Affidavit and Exs. B1 to B13 were marked. Both the counsels has adduced oral arguments and also submitted written arguments in support of their versions. The Complainant’s counsel filed text copy of the TENNAN’s Banking Law, which states that “The legal position of the banker in connection with fixed deposit is one of a debtor. The banker continues to be a debtor even though the period fixed for the deposit has expired and the deposit is not withdrawn and although the banker may not allow interest after the deposit has matured for payment, he does not become a trustee for customer of the funds so lying with him. A third party has no right to claim the money deposited with a banker by giving notice to him. Such a notice does not create any liability on the part of the banker” and case law 2014 (4) ALD 488 of Hon’ble High Court of A.P. which is related to Indira Vikas Patras, wherein the Postmaster refused to permit the Respondent for encashing the Indira Vikas Patras.
At the time of arguments, the counsel for the Opposite Party Bank stated that as the Original 15 FDRs are in the Hon’ble VII Addl District Judge Court, wherein the Complainant’s 3 daughters has filed Civil Suit for the partition of the property along with the 15 FDRs owned by the Complainant. The bank cannot change the nominee in the FDRs and at the same time bank cannot release the amounts until the suit will be decided. The Complainant has fraudulently misrepresented the facts in her letters submitted to the bank that they were misplaced and in other letters, she herself stated that the said original FDRs were stolen by her daughters, so there is no clear clarification with regarding to the fact of either misplaced or lost or stolen by the daughters. If at all the complainant realize upon the version that the documents were stolen, she has to give a Police complaint and after framing the FIR and getting the certificate from the Police that they were not found then only the duplicates can be given but as seen from the Civil Suit copy filed by her daughters, it seems they were in the custody of the Court.
The counsel for the complainant objected in the middle and stated the Opposite Parties has not filed any documentary proof that the duplicate FIR will be issued after following due process. Then the counsel for the Opposite Party bank stated that no particular documents has been filed to that extent in this Forum, except relying upon the documents i.e. ex.B1 to B13 filed by the Bank. Then the counsel for the Complainant relying upon the Tennan Banking Law and the Case Law 2014 (4) ALD 488 decided by the Hon’ble High Court of A.P. on 27.03.2014, the Complainant is entitled for taking the amounts from the Opposite Party Bank which were kept in the Forum of the 15 FDRs and to that extent the bank cannot raise any objection as 3rd party has no right to issue Notice with regarding to the FDRs.
Point No.1: The present complaint is filed by the Complainant for refund of the FDR amounts vide 15 FDRs i.e. Ex.A12 from the Opposite Party along with interest and compensation along with costs from the Opposite Party-Bank. The Opposite party’s version is that the Complainant’s 3 daughters has filed Civil Suit No.OS 131/13 on the file of VII Addl District Judge Court, Visakhapatnam wherein in Item No.1 of the suit schedule property, the FDRs mentioned and the Complainant initially stated that the said FDRs were misplaced or lost, but on pursuation of the legal notice sent by Sri P.Ravi Kiran, Advocate with regarding to the intimation of the filing of the suit in court and the contentions of the plaint, it reveals the originals are in Hon’ble 7th Additional District Judge Court, Visakhapatnam District. So as the issue i.e. refund of the 15 FDRs amount by withdrawing the same is interrelated with the Civil Suit OS 131/2013 the Complainant could not asked for the said relief and the Complaint itself is not at all maintainable because the principle of subjudice is applicable to this present complaint.
12.As per Legal Maxim ‘subjudice’ means under judicial consideration or in courts of trial and ‘lispendens’ means a pending suit.
13.The 15 FDRs which were on the name of the Complainant are marked as Ex.A12. Out of that 15 FDRs in 4 FDR Nos.7021, 7869, 5939, 5940 the son of the Complainant Ganesh Kumar is the nominee. The 4 FDRs No’s.7022, 7024, 5937, 5938, the Complainant’s daughter Smt.Madhumathi Patnaik is the nominee. In the 4 FDRs Nos.7019, 7020, 5933, 5935, the Complainant’s daughter K.Aruna is the nominee. In the 3 FDRs Nos.7023, 5934, 5936 the Complainant’s daughter Smt.Rajyalakshmi Patnaik is the nominee. On calculating the Deposits of 15 FDRs amount the total amount is Rs.10,23,876/- . The Complainant came with a wrong Calculation, that the 15 FDR’s Value is Rs.10,23,844/-. If the amount of 15 FDRs will be released after Maturity period Complainant will get Rs.11,40,181/-
14.Ex.A1 & B2 are the same documents i.e. Indemnity Bond dt. 20.04.2013. In the said Ex.A1/B2 the Complainant is stating that her FDRs lost or stolen and she is giving undertaking to return the same if they were found. In para No.2 of the Ex.A1/B2 it was stated as follows: “I jointly and severally hereby undertake to hold you harmless and keep you fully indemnified against all claims and damages which may be made in respect of the Fixed Deposit by any person claiming to be the holder of the Fixed Deposit or to be in any way interested therein”
15.Ex.A2 is the letter dt. 22.04.2013 given to the Opposite Party stating that the FDRs are missing and seeking for duplicate FDRs. Ex.A3 & B6 are the same documents dt.20.05.2013. In Ex.A3/B6, the Opposite Party Bank stated that the bank has received a Legal Notice dt. 24.04.2013 given by Sri P.Ravi Kiran, Advocate on behalf of Complainant’s 3 daughters stating that the original FDRs are filed in VII Additional District Judge’s Court Ex.B4 is the Legal Notice dt. 24.04.2013 given by Sri P.Ravi Kiran, Advocate on behalf of 3 daughters of the Complainant stating that OS 131/2013 was filed by the 3 daughters against the Complainant and her son Sri Ganesh Kumar for partition of the property and fixed deposits of 41 Nos. along with Savings account on the name of the Complainant and her husband. In Para 2 of Page No.2 of Ex.B4 the said Advocate who got issued Notice to the Bank requesting to renew the fixed deposit certificate of 41 Nos. in the Bank till disposal of the case before the District Court as the matter is subjudice. Ex.B12, dt. 7.7.2014 is the Legal Notice issued to the Opposite Party Bank by Sri P.Ravi Kiran, Advocate on behalf of 3 daughters of the Complainant with regard to the intimation of the OS 131/2013, IA Nos.437/2013 and IA 646/2013 in OS 131/2013 on the file of Hon’ble VII Additional District Judge Court, Visakhapatnam for partition of schedule property Item No.1 including the 15 FDRs in this complaint (regarding 41 FDRs) and Item No.2 with regarding to partition of the suit Immovable property among the complainant and their children. In Para No.2 of the Ex.B12, the complainant’s daughter’s are requesting the Opposite Party bank to furnish the details pertaining to the 41 FDRs which were on the name of the complainant. As the said details has to be furnished in the District Consumer Forum-I, Visakhapatnam i.e. in this Forum on 14.07.2014. Viewing the Ex.B1 to B13, it seems after receiving Ex.B12, the OP/Bank kept quiet and not sent any reply to the Complainant’s daughters.
16.Observing the cause list and the Ex.A4 dt.3.6.2013 it reveals that the Complainant is aged about 82 years as on 17.10.13 date of filing of the complaint and as on today, she is aged about 83 Yrs. Ex.A8 is the letter dt.19.06.2013 by enclosing Form DA3 for change of nomination in the FDRs pertaining to the complainant. Ex.A9 is the letter dt.1.7.2013 along with the account opening form and a format. As per para No.2 of Ex.A9, Complainant is admitting that she is unable to bring the original bond which were lying in the Court and she is requested the bank to facilitate her to withdraw the amounts unconditionally without production of original documents. Ex.B1 is the letter dt.3.4.2013 served to the Opposite Party Sr.Manager stating that her accounts transactions were being looked after by one Sri Murali, Accountant and son-in-law Madhusudhana Rao along with her daughter K.Aruna, as there is some suspection upon them and they refuse to handover the relevant books or details to the Complainant she requested the bank not to make any payments to the Accountant Sri V.Murali and K.Madhusudhana Rao, son-in-law of Complainant and K.Aruna, daughter of the complainant also she requested to arrange the relevant details of all accounts which were outstanding on the name of the complainant so that she can operate the same personally. Ex.A10 and B13 are the same documents. Ex.A10/B13 dt. 8.8.2013 is the legal notice given to the Opposite Party Bank to release the FDR amounts to the complainant as she is facing some ailments and she is badly need the said amounts for her treatment and some personal needs. Ex.A11 is the acknowledgement card for Ex.A10/B13. Ex.A1, Indemnity Bond and Ex.B2 are the same documents. Ex.B3 dt.22.04.2013 is the letter given to the Opposite Party for issuing duplicate bonds basing upon Indemnity bond dt.24.04.2013 i.e. Ex.A1/B2.
17.As per Ex.B5 dt.16.5.2013, the Opposite Party stated that they cannot issue the duplicate bonds as the FDRs are kept in the Court. Ex.B6 is the letter dt.20.05.2013 stating that the Complainant is giving different versions with regarding to the FDRs which were on the name of Complainant. Ex.B7 is the IA 131/2013 on the file of VII Additional District Judge Court, Visakhapatnam. In that Ex.B7 in Item No.1, the FDRs are mentioned and in Item No.2, the house properties description is mentioned.
18.Observing the Ex.B7 i.e. the Petition under Order 39 (Rule1 & 2) of CPC it seems the petitioners i.e. 3 daughters of the complainant are seeking the court to give direction not to alienate the suit schedule property i.e. Item No.2 to any 3rd parties till disposal of the suit and in Para No.2B of Ex.B7 the Complainant’s 3 daughters are stating that the father of the Kuppili Nageswara Rao (i.e. father-in-law of the Complainant has executed a will dt.2.10.1968 bequeathing the schedule property i.e. Item No.2 i.e. Immovable property to the Petitioner’s father i.e. K.Nageswara Rao and his 3rd brother K.Tirupathi Rao. The said copy of the sale deed dt. 24.04.1957 and Will Deed dt.2.10.1968 is enclosed with the Civil Suit in OS 131/2013. In the same Para, the Complainant’s 3 daughters states that their father has invested the amount in the forms of deposits on the name of the Complainant and after the demise of his father, the said amount has to be shared equally by all the children including the complainant. Basing upon the said “advise of the complainant’s husband” the complainant has handedover the fixed deposit receipts to the Complainant’s 3 daughters and thereby as the son of the complainant is trying to take the said amount, the Item No.1 FDR properties are included in the suit and seeking for relief of share in the entire 41 FDRs i.e. in between Complainant and her 3 daughters + 1 son. The Complainant’s 3 daughters are just discussing about the “advise” mentioned in Para 2B of Ex.B7. But they have not filed any documents to the OP/Bank through Sri P.Ravi Kiran, Advocate, vide Ex.B4 and B12 Notices. With regarding to the FDRs, the Complainant filed 4 Consumer Cases (1) CC 243/13 (2) CC 245/13 (3) CC 239/13 (4) CC 241/13. Thereafter in CC 243/13 and CC 245/13 she filed “withdrawal memo on 23.06.2014” as she received the FDR amounts from Sree Ram Finance and the two cases CC 243/2013 and CC 245/2013 were dismissed on 27.8.2014, the same was reflected in Para No.16 of Order in IA 160/14 in CC 239/13, dt.27.08.2014.
19.Observing the contention of the 3 daughters in the petition under Order 39 (Rule 1 & 2) along with the docket sheet the copy obtained by the complainant’s 3 daughters vide IA 437/2013 in OS 131/2013 it seems on 6.6.2013 Temporary Injunction is granted with regarding to the Item No.2 property (i.e. Immovable property only). At the same time observing the IA 646/2013 in OS 131/2013 enclosed with the documents at the time of filing IA 161/2014 in CC 239/2013, viewing the docket sheet it seems there is no direction from the court with regarding to the Item No.1 property (i.e. regarding 41 FDRs which were on the name of the Complainant) as on 22.10.2013 and even the Opposite Party bank has not filed any documentary proof and any injunction with regarding to the holding of the FDRs or any freezing directing upon the FDRs lying with the Opposite Party-Bank. Even observing the arguments of the both sides, the counsel for the Opposite Party bank as stated that there is no direction to that extent that the FDRs were freezed or they should be withhold by the Opposite Party-Bank until disposal of the matter, except the version that as the matter is subjudice and Opposite Party-Bank cannot release the FDRs to the Complainant until disposal of the matter.
20.Now with regarding to the applicability of the subjudice to the present complaint :
21.As seen from Ex.B7 i.e. Order 39, Rule 1 & 2 petition for seeking direction from the Hon’ble Court with regarding to not to alienate the immovable property (i.e Item No.2 in OS 131/2013) on the file of Hon’ble VII Additional District Judge in Para No.2B, the 3 daughters of the Complainant, Smt.Madhumathi Patnaik, Smt.B.Laxmi Patnaik, Smt.K.Aruna are stating that their father (i.e. husband of the complainant) is having a joint property by way of Will Deed dt. 2.10.1968 executed by the father of Sri K.Nageswara Rao that the schedule property (immovable property) vide Item no.2 has to be shared by Sri K.Nageswara Rao and his brother K.Tirupathi Rao. The copy of the said Sale deed pertaining to immovable property dt. 24.4.1957 Will Deed dt.2.10.1968 are enclosed along with the suit. At the same time in the Para-2B, they are stating that the Sri K.Nageswara Rao has saved Rs.53,66,550.43 vide 41 FDRs of Item No.1 in suit No.OS 131/2013 which were invested in the forms of deposits on his wife’s name i.e. the Complainant in the present complaint and that should be shared equally among children and the complainant equally after demise of Sri K.Nageswara Rao and he died on 10.03.2012 intestate. So basing upon the Legal-heir Certificate brought by them dt.12.04.2012 issued by Tahsildar, Visakhapatnam Urban Mandal, they are seeking Injunction for not to alienate the property in IA No.437/2013 in OS No.131/2013. Observing the Certificate docket sheet obtained from the Hon’ble Civil Court with regarding to the IA 437/2013 filed along with the IA 160/2014 in CC 239/2013 it seems on 6.6.2013 a “Temporary Injunction” is granted in IA 437/2013.
22.Though the Complainant’s 3 daughters are stating that including them along with complainant and her son are entitled for the equal share in the Item No.1/the entire 41 FDRs share on the name of the complainant, except mentioning the above Will Deed dt.2.10.1968 with regarding to schedule property they have not whispered about any document pertaining to the share of the 41 FDRs (including 15 FDRs) in this Complaint. In Para 2(B) of Ex.B7 it seems the 3 daughters of the complainant are stating that their father i.e. the husband of the complainant died intestate leaving the 3 daughters + one son + the complainant as Legal-heirs. As seen from the Legal-heir certificate dt.12.04.2012 enclosed with the IA 160/2014 in CC 239/13 it seems they are the Legal-heirs of all Sri K.Nageswara Rao i.e. husband of the Complainant. Coming to the point of the definition of intestate, the principle of intestate will be applicable to the Item No.2 of Immovable property mentioned in CC 131/2013, but not to item No.1 41 FDR’s as Complainant is still alive and the FDR’s are on the name of Complainant only. Observing the 15 FDRs which were on the name of the Complainant i.e. Item No.1 mentioned in the Civil Suit OS 131/2013 and also in Ex.B7. It seems, the Complainant is the holder of the 15 FDRs which were in the OP-Bank and out of the 15 FDRs, (1) For 4 FDRs Complainant’s son Ganesh Kumar is the nominee. (2) For 4 FDRs Complainant’s daughter Madhumathi Patnaik is the nominee. (3) For 4 FDRs Smt.K.Aruna is the nominee (4) For other 3 FDRs Smt.Rajyalaxmi Patnaik is the nominee. As per the Legal Maxim, Nemo est haeres viventis means = No one can be heirs during the life of his ancestors.As per the Legal Maxim, Testamentary omne morte consumateenmeans = Every will is completed by death.So viewing the 15 FDRs kept with the Opposite Party for the value of Rs.11,40,181/- we are of opinion that the principle of ‘intestate’ does not applicable for the FDRs as the complainant who is aged 83 years is still alive as on today.
23.As on today that too observing the IA 646/2013 in OS 131/2013 docket sheet, which is furnished by the Complainant’s 3 daughters in IA 160/14 in CC 239/2013 it seems as on 22.10.2013 the docket sheet speaks as follows: “Notice to respondent No.1 not given – Call on 22.11.2013”. Except that particular direction there is no specific or special direction with regarding to the FDRs kept with the Opposite Party in this complaint. Even the counsel for Opposite Party is also stating that except receiving Notice from the Advocate Sri P.Ravi Kiran that the FDRs are not to be withdrawn or name should not be changed and they should be renewed until disposal of the suit OS 131/2013 which was pending in Hon’ble District Court, Visakhapatnam (reflected in Para 2, page 2 of Ex.B4). The Tennaman Banking Law, furnished by the complainant states that,“A 3rd Party has no right to claim money deposited, with a banker by giving notice to him. Such Notice does not create any liability on part of the Banker”.The Legal Maxim, Jus ex inuria non oritur means = A Right does not arise from a wrong.
24.As seen from the Para 2, Page 2 of Ex.B4 and the Ex.A12, 15 FDRs it seems only the complainant is the holder of the FDRs and the complainant’s 3 daughters (i.e. Plaintiff in OS 131/2013 and Defendant No.1 Sri Ganesh Kumar are nominee in the 15 FDRs), so unless the demise of the complainant, the complainant’s 3 daughters cannot rely upon the principle of intestate with regarding to the 15 FDRs and that too even the Opposite Party has not brought any direction from the Court or any direction from the Court and with regarding to the renewal of the 15 FDRs kept with the OP-Bank, as per the request/demand of the 3 Daughters in Ex.B12 through Sri.P.Ravi Kiran, Advocate. Even observing the Ord.XXXV (Rule 1 to 4) of Civil Procedure Code, it reveals that the OP-Bank can file Interpleader Suit with regarding to the 15 FDRs whispered in the OS 131/2013 as Item No.1 schedule property and in this Complaint the OP/Bank has not filed the Civil Suit under Order XXXV Rule 1 to 4. If the OP-Bank files the suit as per Order 35 Rule 1 to 4 there are chances for getting any direction upon the 15 FDRs which were in the present complaint vide Ex.A12. Except stating that, the complainant has not filed FIR copies with regarding to 15 FDRs stolen by her daughter, the OP-Bank has not filed any document to prove their contention to estop the Complainant for taking her 15 FDR’s amount. At the same time the Opposite Party Bank is agreeing that, the complainant has filed Ex.A1/B2 Indemnity Bond with regarding to the 15 FDRs given by the Complainant to the OP-Bank on 20.04.2013.
25.Observing the Ex.A1/B2 it seems the complainant is assuring the OP-Bank and also giving undertaking with regarding to the any loss or damages or expenses that will be sustained by the bank in issuing the FDRs and she is also giving undertaking that she is the sole owner i.e. the Holder of the 15 FDRs vide Ex.A12. Viewing the Para No.5 of Ex.A4/Ex.A10/Ex.B13 Notices and the cause title along with Affidavit filed by the Complainant while filing the complaint, it seems the complainant at the age of 83 years suffering with knee injury and bedridden thereby she is facing hindrances occurred due to the filing of the Civil suit OS 131/2013 in Hon’ble VII Addl District Judge Court by the 3 daughters of the complainant against her which was elicited vide Ex.B4 and Ex.B12. It seems the complainant is running from pillar to post a the peak age of 83 years for withdrawl of 15 FDRs from the OP-Bank without any order hanging from any other courts. Observing Ex.B1 i.e. letter dt.3.4.2013 addressed to the OP-Bank it seems the complainant is having some suspection upon her Accountant Sri B.Murali and one of the daughter K.Aruna and her husband K.Madhusudhana Rao with regarding to the utilization of the bank transactions on behalf of the complainant. Thereby she has requested the OP-Bank not to make any payments to them and also further requested to send the relevant details with regarding to the accounts, the outstanding so that she can operate personally. After receiving the said Ex.B1, the Opposite Party not given any reply and not filed any defence Document to the Ex.B1, except filing the Ex.B1 to B13 Documents. The word ‘Jus’ means = The Law ; Right. The Legal Maxim, Ubi jus, ibi remedium means = Where there is a right there is a remedy. The Legal Maxim, Drorit ne poet pas monitor means = A Right Cannot die.
26.At the time of the arguments the counsel for the complainant has filed a case law 2014 (4) ALD 488 between Post Master, Chirala Head Post Office, Chirala & others Vs Voleti Satya Phani Vardhini and another held “the plaintiff 1 and 2 are the owners of the missing Indira Vikas Patras purchased by deceased husband and father of the Plaintiff No.1 & 2 (minor son) respectively. When no other claimant has come forward to claim money under subject IVPs, appellants (Post Master, Chirala) ought to have gracefully made payment to respondents. In the said matter one V.Subbarao has purchased the Indira Vikas Patras and the amount will be returned to the said person with maturity value of 36,000/- after 5 years from the date of purchase. Wherein V.Subba Rao died and his wife claimed the said Indira Vikas Patras amount from the Postal Department and the Postal Department denied that as the Indira Vikas Patras are missing and they cannot be given. Though she has given police complaint before Inspector ofPolice, Chirala and they were not found and she was directed to approach the Court of law for obtaining declaration with regarding to the ownership of the IVPs. But the elaborate hearing of the matter, the Hon’ble Court felt that the stand taken by the appellants is unacceptable, nay, unfortunate. Here in this case where 37 years old widow has knocked at the doors of Hon’ble Court by complaining that the appellants have taken a very unreasonable stand that she will not be paid the money unless the original IVPs are produced as the Plaintiff’s husband died and also no other claimants have come forward to claim the said amount and though 10 years has been lapsed, appellants failed to raise any substantial question of law for interference of this Court and thereby the Hon’ble Court felt that the appellants will be put to quietus to the litigation atleast now and relieve the respondents from the woes of litigation as they have been suffering for nearly two decades”.
27.Observing the ratio desidendi of 2014 (4) ALD 488 supra (in Para-26) and the contents of this case in the hand along with Ex.A12, Ex.A1/B2, B1 and A10/B13 Legal Notice, sent to the Opposite Party bank for refund of the 15 FDRs amounts and the age factor of the complainant as she is aged about 83 years, wherein observing the said Ex.A12, 15 FDRs the complainant herself is the absolute owner of the FDRs and neither the 3 daughters of the complainant nor the son of the complainant cannot claim the same applying the principles of the intestate. Hence, we conclude that she is facing so much harassment from the Opposite Party for withdrawl of the FDRs moving from pillar to post and awaiting for enjoying the fruits of the Fixed Deposit Receipt values,
28.With regarding to the jurisdiction of the Consumer Fora :
As per Indian Medical Association Vs. V.P.Shanta & ors, 1995 CTJ 969 (SC)(CP) decided on 13.11.1995 it was held that “the consume courts were fully equipped and competent to deal with such cases” and the same was observed in 2002 CTJ 405 (SC)(CP) in Amar Jawala Paper Mills Vs State Bank of India. In the case of CCI Chambers Coop. Housing Society Ltd Vs Development Credit Bank Ltd., 2003 CTJ 849 (SC)(CP), the Hon’ble Supreme Court held, “merely because recoding of evidence is required or some questions of fact and law arise, which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved”. In the case of 2003 CTJ 85 (SC)(CP) State of Karnataka V. Vishwabharathi House Building Coop. Society, it was held, “on the jurisdiction of the Consumer Fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the For a under the C.P.Act have jurisdiction to entertain a complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis”. In the case of 2007 CTJ 557 (SC)(CP) Hon’ble Supreme Court while deciding the case of Kishore Lal V. Chairman, Employees State Insurance Corpn, it was held that “the jurisdiction of the consumer forum has to be considered liberally so as to bring many cases under it for their speedy disposal”. Even in the case of Spring Meadows Hospital Vs Harjot Ahluwalia, 1998 CTJ 61 (SC)(CP), it was held that, “the C.P.Act creates a framework for speedy disposal of consumer disputes and an attempt has been mace to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction”. In all the aforementioned 7 Case Laws vide para No.27 & 28 supra, the Hon’ble Court held that, “the above verdicts are lay down that the consumer complaints are not the writ petitions and as such cannot be thrown away inlimine. These are in the nature of civil suits and despite the fact that the Code of Civil Procedure does not apply to such complaints, the fact, however, does remain that they have to be dealt within the manner the civil suits are dealt with. Whims have no place in such dealings”.
29.Hence in the light of the facts, circumstances, Ex.A12(15 FDR’s of Complainant), Ex.B1, B4,B12, B7, A1/B2 (Indemnity Bond given by the Complainant), Ex.A10/B13 (Legal Notices got issued by Complainant to Opposite Party Bank) and the case laws 7 Case Laws, 1995 CTJ 969 (SC)(CP), 2002 CTJ 405 (SC)(CP), 2003 CTJ 849 (SC)(CP), 2007 CTJ 557 (SC)(CP), 2003 CTJ 85 (SC)(CP), 1998 CTJ 61 (SC)(CP), 2014 4 ALD 488., Sec.3 of C.P.Act,1986 and the object of the Consumer Protection Act for a better protection of the Consumers Rights, as there is no document or any direction which is binding over upon the 15 FDRs of the Complainant, which was admitted by the Opposite Party bank counsel in the arguments, we are of conclusive opinion that the principle of the subjudice doesn’t apply to the present complaint and Forum can entertain the complaint.
Accordingly Point No.1 is answered.
30. Point No.2: Observing the Ex.A1/B2, A2, B1, dt. 3.4.2013, B4 & B12 Notices, and Ex.A10/B13, Legal Notices sent to the Opposite Party for withdrawing the 15 FDR amounts by the complainant, we are of conclusive opinion that the OP-Bank without any direction from the competent authority and even after receiving the Indemnity Bond also intentionally withholding FDRs amounts to severe harassment put towards a 83 years old complainant and thereby there is deficiency of service on part of the Opposite Parties for not releasing the 15 FDRs which were on the name of the Complainant.
Accordingly Point No.2 is answered.
31.Point No.3: As confirmed in Point No.1 that the principle of the subjudice does not apply to the present complaint and vide Point No.2 there is deficiency of service on part of OP-Bank for not releasing the 15 FDRs which were on the name of the complainant, we are of considered opinion that the complainant is entitled for the release of the 15 FDRs (i.e. Ex.A12). The OP-Bank is directed to release the 15 FDRs amount to the Complainant by accepting the Ex.A1/B2 Indemnity Bond given by the Complainant. If the Opposite Party fails to release the amount within one month from the date of receipt of this Order, the Opposite party has to pay interest upon the 15 FDRs amount of Rs.10,23,876/- @ 12% p.a. from the date of order i.e.19.12.2014 till realization.
32.With regarding to the granting of compensation to the complainant as the OP-Bank is running business with the general public and securing the amounts of the common public, the compensation is not awarded to the complainant. However, Observing the Ex.A10/B13 Legal Notices served to the Opposite Party Bank, we feel that the complainant is entitled for costs for legal expenditure for an amount of Rs.2,000/- to be paid by the OP-Bank.
Accordingly Point No.3 is answered.
33.In the result the complaint is allowed in part. The Opposite Party Bank is directed to release the 15 FDRs amount to the complainant which amounts to Rs.10,23,876/- within one month from the date of receipt of this order. Failing which in case of non-payment of amount after 30 days from the date of receipt of the Order, the complainant is entitled for 12% interest p.a. on amount of Rs.10,23,876/- from 19.12.2014 till realization. The OP-Bank is directed to pay an amount of Rs.2,000/- towards legal expenditure to the complainant. Time for compliance is 30 days from the date of receipt of this order.
Dictated to the Stenographer, transcribed by him, corrected by me and pronounced by us in the open Forum on this the 19th day of December, 2014.
Sd/- Sd/-
President (FAC) Member District Consumer Forum – I,
Visakhapatnam
APPENDIX OF EVIDENCE
Exhibits Marked for the Complainant:
Ex.A1 | 20.04.2013 | Indemnity bond executed by the Complainant in favour of the Opp party | Photocopy |
Ex.A2 | 22.04.2013 | Letter addressed by the Complainant to the Opp party | Photocopy |
Ex.A3 | 20.05.2013 | Letter addressed by the Opp party to the Complainant | Photocopy |
Ex.A4 | 03.06.2013 | Letter addressed by the Complainant to the Opp. Party | Photocopy |
Ex.A5 | 05.06.2013 | Acknowledgement | Photocopy |
Ex.A6 | 06.06.2013 | Letter addressed by the Complainant to the Opp. Party | Photocopy |
Ex.A7 | 08.06.2013 | Acknowledgement | Photocopy |
Ex.A8 | 19.06.2013 | Letter issued by the Opp. party to the complainant | Photocopy |
Ex.A9 | 01.07.2013 | Nomination variation Form DA3 along with covering letter addressed to the Opp. Party | Photocopy |
Ex.A10 | 08.08.2013 | Regd Lawyer’s notice | Photocopy |
Ex.A11 | 18.08.2013 | Acknowledgement | Photocopy |
Ex.A12 | | Bunch of FDR bonds belonging to the Complainant | Photocopies |
Exhibits Marked for the Opposite Party:
Ex.B1 | 03.04.2013 | Letter addressed to OP Bank by the Complainant | Attested true copy |
Ex.B2 | | Indemnity Bond | “ |
Ex.B3 | 22.04.2013 | Letter addressed to OP Bank by the Complainant | “ |
Ex.B4 | 24.04.2013 | Regd Lawyer’s Notice | “ |
Ex.B5 | 16.05.2013 | Reply from the OP-Bank to the Complainant regarding issue of duplicate bonds | “ |
Ex.B6 | 20.05.2013 | Letter addressed by OP-Bank to Complainant | “ |
Ex.B7 | | Affidavit, Petition & Suit Schedule filed in OS 131/2013 before the VII Addl Dist Judge at Visakhapatnam | “ |
Ex.B8 | 03.06.2013 | Letter addressed by the Complainant to OP-Bank | “ |
Ex.B9 | 06.06.2013 | Letter addressed by the Complainant to OP-Bank | |
Ex.B10 | 19.06.2013 | Letter addressed by the Complainant to OP-Bank requesting for issue of duplicate Bonds | Attested true copy |
Ex.B11 | 01.07.2013 | Letter addressed by the Complainant to OP-Bank requesting change in nomination and add fresh sole nominee in all FDR Bonds. | “ |
Ex.B12 | 07.07.2014 | Regd Lawyer’s Notice issued to OP-Bank | “ |
Ex.B13 | 08.08.2013 | Regd Lawyer’s Notice issued to OP-Bank | “ |
Sd/- Sd/-
President (FAC) Member District Consumer Forum – I,
Visakhapatnam
