SRI.K. VIJAYAKUMARAN, PRESIDENT. Complaint for a direction to the opp.party to pay back the Fixed Deposit amount with interest, compensation and costs. The averments in the complaint can be briefly summarized as follows: The complainants are the legal heirs of deceased C.V. Mariyamma. The said C.V. Mariyamma made a Fixed Deposit of Rs.50,000/- with the opp.party bank on 22.3.1976 as per the receipt No.36796. The Fixed Deposit was due for repayment on 22.4.1981. As per the direction of the opp.party bearing No.11/9 dated 9.4.1981, the said CV Mariyamma returned the above mentioned Fixed Deposit receipt duly signed on its back side to the opp.party with instructions for renewal. Thereafter the opp.party had allegedly imposed a general lien on the entire assets of the Melayil Industrial and Commercial Enterprises and the assets of its partners following institution of OS No.318/1982 before the Sub Court, Kollam. The said CV Mariyamma expired on 14.5.1991. In spite of requests by CV Mariyamma while she was alive and after her death by the complainants the opp.party turned down their request under the pretext of the general liene. The said OS 318/82 was settled out of the purview of the said Fixed Deposit and even there after the opp.party is willfully retaining the Fixed Deposit for no reason. Even after an issuance of lawyer notice the amount was not returned and hence the complaint. The opp.party filed version contending interalia, that the complaint is not maintainable either in law or on facts and the complainant is not a consumer. The opp.party bank filed OS No.318/82 before the Sub Court, Kollam against M/s. Melayil Industries and Commercial Enterprises and others for realization of the amount due to the bank. The complainants were defendants in that suit which was decreed on 28.2.1987. Thereafter the bank filed execution application and while the execution proceedings were pending, the parties entered into a settlement and the amount was paid by the defendants there in and the case was fully settled. The averment that the complainants are the legal heirs of the deceased CV Mariyamma is denied. As per the available records in the bank said CV Mariyamma has no fixed deposit in her name to the opp.party bank. The bank is no way liable to keep the records of more than 25 years back. At the time of full and final settlement of the said suit none of the complainants have raised any claim with regard to the said fixed deposit of CV Mariyamma.. The said CV Mariyamma while she was alive has also do not make any claim for this amount. On receipt of the request from the defendant the opp.party made all earnest efforts to trace out the fixed deposit but it is revealed that as per the available records in the bank nothing is shown about the fixed deposit. The complainants have full knowledge about this facts and approached this Forum after a long time with a malafide intention. There is no negligence or deficiency in service on the part of the opp.party. Hence the opp.party prays to dismiss the complaint. Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.parties 2. Reliefs and costs. For the complainant PW.1 is examined. Ext. P1 to P9 are marked For the opp.party DW.1 is examined. POINTS: The head office of opp.party bank sanctioned certain facilities to M/s. Melayil Industrial and Commercial Enterprises of which the complainants and their parents were the partners. Default being committed the opp.party bank filed OS No.318/1982 before the Sub Court, Kollam and the suit was decreed on 28.2.1987. While the execution of the decree was in progress the parties entered into a settlement and the decree was fully satisfied. Now the contention of the complainants is that in the above suit the opp.party exercised a lien on the assets of the partner including a Fixed Deposit of Rs.50,000/- in the name of one CV Mariyamma who was the mother of the complainants herein and the settlement was entered into excluding the above Fixed Deposit. Since the said CV Mariamma expired the complainants who are her Legal heirs are entitled to receive the amount but the opp.party is not releasing the amount. Ext.P7 shows that the complainants are the Legal heirs of deceased Mariamma and Ext.P2 and P6 would show that the 1st complainant was authorized by the others to receive the amount covered by the Fixed Deposit The contention of the opp.party is that as per the available records in the bank the said CV Mariyamma has no Fixed Deposit in her name in the opp.party bank and that the bank is not bound to keep records of more than 25 years back. It is further contended that none of the complainants raised any claim with regard to the Fixed Deposit of CV Mariamma at the time of settlement and had such a Fixed Deposit was there they would have raised a claim at the time of settlement from which it is obvious that the claim is not bonafide The complainants are relying on Exts. P3 and P4 to establish that deceased CV Mariyamma had a Fixed Deposit of Rs.50,000/- with opp.party Bank. Exts.P3 is a letter sanctioning certain facilities to M/s. Melayil Industrial and Commercial Enterprises by the Head Office of Opp.party and Ext.P4 is a letters sanctioning certain advances to them. In both Exts.P3 and 4 a Fixed Deposit for Rs.50,000/- is referred to which was kept as security for the facilities. Ext.P5 is a letter issued to CV Mariamma on 9.4.81 informing her of renewal of the Fixed Deposit of Rs.50,000/- which matures on 22.4.1981. Exts.P3 to P5 would establish beyond doubt that CV Mariamma had a Fixed Deposit of Rs.50,000/- with the opp.party bank which was kept as security for the facilities and advances sanctioned. Now the contention of the complainants is that CV Mariamma renewed the FD in pursuant to Ext.P5. But the contention of the opp.party is that in pursuant to Ext.P5 Mariamma surrendered the FD receipt and collected the amount as per the Fixed deposit. That argument will not hold water in the light of the stipulation in Exts.P3 and P4 that the FD of Rs.50,000/- is held as additional security to the facilities sanctioned as per Exts. P3 and P4 and in view of the fact that the settlement was arrived at only in the year 2000 and C.V. Mariamma expired in the year 1991. It has come in evidence that there was default on the part of the partners of Melayil Industrial and Commercial Enterprises in making repayment and a general lien was exercised by opp.party bank on the assets of the Firm and its partners which was released only in the year 2000 after the settlement. So the question of releasing the Fixed Deposit in the name of C.V. Mariamma the year 1981 does not ariser. The case of the opp.parties is that they are not bound to keep the records beyond 25 years. In this case the lien exercised by opp.party in the assets of the firm and its partners was lifted after the settlement in 2000. Therefore, it is obvious that the lien on the FD of Rs.50,000/- in the name of CV Mariamma was also lifted in 2000 . DW.1has admitted that all the records relating to the settlement in OS.381/82 are there in the opp.party bank and is ready to produce the same. Though the case was adjourned for production of the same neither DW.1 turned up for further cross examination nor the records were produced from which an adverse inference has to be drawn. It is also worth pointing out in this context that the opp.party has not produced any record though they would contend that the available records would show that there is no such Fixed Deposit. The opp.parties could have produced the records relating to the securities held by them as per Ext.P3 and P4 which would have revealed the details of the FDR for Rs.50,000/- mentioned therein. The burden to establish that the Fixed Deposit of Rs.50,000/- in the name of CV Mariamma was released to her is on the opp.party which in our view they failed to discharge. It goes without saying that the item offered as security to the facilities as per Exts.P3 and P4 would be released only after payment of the dues and in this case the settlement was in the year 2000 and the non production of the settlement records which were available with the opp.party as admitted by DW.1 would clearly establish that the case put forward by the opp.party is not true or even probable. For all that has been discussed above we have no hesitation to hold that the complainants are entitled to get the Fixed Deposit amount in the name of CV Mariamma with interest. However there is no evidence to show that the Fixed Deposit was renewed by C.V. Mariamma after Ext.P5 and therefore Fixed Deposit will earn interest at the rates applicable to the SB Account. The conduct of the opp.party in not releasing the same is deficiency in service. Point found accordingly. In the result the complaint is allowed directing the opp.party to pay the complainants Rs.50,000/- with interest applicable to Fixed Deposit above 5 years from 23.4.81 for 5 years and thereafter interest @ applicable to SB Account. The opp.parties are also directed to pay the complainants Rs.5000/- towards compensation and costs. The order is to be complied with within one month from the date of this order. Dated this the 14th day of July, 2010. . I N D E X List of witnesses for the complainant: PW.1. - F.V. Albin List of documents for the complainant P1. – Photocopy of Partnership deed P2. – Document No.188/1975 P3. – Letter No.EH/301 dt. 22.4.1977 P4. – Letter No. EH/301 dt. 18..11..1977 P5. – Letter No.11/9 dated 9.4.1981 P6. –Copy of Authorization letter P7. – Legal Heirship certificate P8. – Copy of Legal notice P9. – Copy of Postal receipt List of witnesses for the opp.party DW.1. – Unnikrishnan List of documents for the opp.party: NIL | 
