O R D E R

 PRESIDENT

1)        By this complaint the Complainant has prayed that the Opposite Parties be directed to pay interest on New Bond from 01/07/04 to 30/06/07 amounting to Rs.19,500/- with interest @ 12% p.a. from the date of complaint till its realization.  It is also prayed that an amount of Rs.5,000/- be directed to be paid by the Opposite Parties as compensation for mental agony, harassment and loss alongwith cost of Rs.15,000/- towards this complaint.  

2)        According to the Complainant one Vasant Manilal Shah who died on 04/07/2004 (hereinafter referred to as the Deceased) was the absolute owner of non cumulative 6.5% Saving Bond 2003 bearing a Certificate No.00556 of Rs.1 Lac of the Opposite Party Bank.  The copy of the said bond is marked as Exh.‘A’.  It is submitted that the Complainant is the daughter-in-law of the deceased i.e. the w/o the younger son of the deceased by name Umesh Vasantlal Shah. It is alleged that the Complainant is now entitled to all the benefits of the aforesaid bond including the interest.  The maturity of the said bond at Exh.‘A’ was 27/09/2008 when the Opposite Parties would liable to return Rs.1 Lac and all the accrued interest thereon.  It is alleged that the Opposite Parties offered 6.5% interest on the said Bond and the Complainant has an option to withdraw or receive the periodical interest or on its maturity.  It is alleged that the half yearly interest @ 6.5% on the said bond comes to Rs.3,250/- and the same has become due from 01/07/2004 to 31/07/2007 to the tune of Rs.19,500/- in total.   

3)        It is the case of the Complainant that on 28/06/04 the deceased desired to make the gift of the said bond at Exh.‘A’ and recorded the said desire in writing on 28/06/04. The copy of which is marked as Exh.‘B’. It is submitted that the original of Exh.‘A’ & ‘B’ are lying with the Opposite Parties.  It is submitted that on the same date the deceased got prepared a transfer form for the transfer of the said bond.  It is alleged that at the relevant time deceased during his life time was living with the Complainant and her husband at Borivali on the address mentioned in the cause title of this complaint gifted the bond at Exh.‘A’.  It is submitted that pursuant to the said gift the deceased delivered the original certificate of holding of the said bond of Exh.‘A’. The Complainant accepted the said gift by accepting the delivery of the aforesaid certificate. According to the Complainant thereafter the Complainant became the absolute owner of the said bond and thus, entitled to all the benefits accruing thereon. It is alleged that on 22/07/04 the Complainant applied to the Opposite Party No.2 for transfer of the said bond from the name of deceased in her favour in the prescribed form and submitted all the documents as required by the Opposite Party No.2 for the said transfer. According to the Complainant upon submitting the application for transfer, the Opposite Parties carried out necessary investigation, inquiries and scrutinized the said application of the Complainant.  The Opposite Parties being satisfied transferred the said bond in the name of Complainant on 25/08/04 and by letter dtd.26/08/04 of Opposite Party No.2 forwarded New Bond to the Complainant.  It was informed to the Complainant by Opposite Party No.2 about such transfer in favour of Complainant.  The Opposite Party No.2 also issued a fresh bond in lieu of the earlier bond at Exh.‘A’ a New Bond.  The copy of which is at Exh.‘D’.  The copy of the letter dtd.26/08/04 written to the Complainant by Opposite Party No.2 is at Exh.‘C’.  It is alleged that upon the transfer of the said bond and the delivery of Exh.‘D’ the transfer became complete and the Complainant became the absolute owner of the said new bond.  It is alleged that the Opposite Parties are stopped to back out from the said transfer.   

4)        The Complainant has alleged that one Pankaj Shah, the elder brother of her husband learnt about the aforesaid gift in favour of the Complainant.  He did not like the same and intended to cancel the said gift.  The said Pankaj instead of adopting any legal proceeding against the Complainant opted for adopting behind the back tactics of approaching the then officer of the Opposite Parties.  Pankaj approached one Mr. Rohit Mendhekar an officer of the Opposite Parties and in collusion with him decided to intimidate the Complainant through the instrumentality of Opposite Party No.2 and threatened the Complainant and her husband on telephone.  It is alleged that said Rohit made a telephone call in middle of September, 2004 to the Complainant that she should return the said New Bond to which the Complainant refused to comply.  Rohit also threatened the husband of the Complainant on 21/09/04 that if the original bond is not given to the Opposite Parties, they would take the husband of the Complainant to police station.  The Complainant thereafter, issued notice to the Opposite Parties on 22/09/2004. 

5)        It is submitted that there were several correspondence between the Complainant’s Advocate and Opposite Parties. The Opposite Parties in the said correspondence denied the Complainant’s right to the aforesaid bond. The copies of the said correspondence are filed on the record.   It is alleged that the Complainant does not know what was the nature of the grievance made by Pankaj to the Opposite Parties.  It is alleged that due to collusion between the Pankaj and the Opposite Parties, the Opposite Parties refused and did not furnish the correspondence between Pankaj and Opposite Parties. It is alleged that the purpotated transfer of the Complainant’s bond thereafter in the name of deceased is illegal, void and not binding upon the Complainant.  The Complainant has alleged that by letter dtd.11/07/07 she demanded the interest amount of Rs.19,500/- of the said bond from 01/07/04 to 30/06/07.  The Opposite Parties did not pay the same.  It is alleged that there cannot be transfer to or in the name of dead person in law.  The Complainant has alleged that therefore, she is entitled to receive the interest amount of RS.19,500/- from Opposite Parties.  The non payment of the above interest by the Opposite Parties amounts to deficiency in service.  The Complainant has therefore, prayed for grant of the reliefs as per para 1 of this order.   

6)        The Opposite Parties contested the claim by their written statement.  It is contended that the complaint filed by the Complainant is false, frivolous and the same has been filed with a malafide intension to harass and pressurize the Opposite Parties.  It is alleged that the Complainant has committed an offence of forgery and cheating while getting the said bond transfer in her name one of the son of the deceased had made serious allegations against the Complainant to the Opposite Parties.  It is submitted that as such, the dispute in the complaint is serious and the same has arisen between the Complainant and the other son of the deceased.  It is contended that unless and until the said dispute is resolved by the competent Civil Court and the right of the parties are decided by the Civil Court, the Complainant cannot claim any rights over the said bond.  The Forum has no jurisdiction to conduct the trail and to record oral evidence.  The complaint therefore, ought to have filed before appropriate Civil Court by the Complainant for establishing her rights in respect of the said bond.  It is contended that the subject matter of the complaint is beyond purview, scope and powers of this Forum.  It is therefore, submitted that this complaint is liable to be dismissed on that ground only. 

 7)        It is contended that as per the records of the Opposite Party the deceased Vasantlal is the owner of the said bond and the Complainant has no right in respect of the said bond.  It is further contended that the transfer effected by the Opposite Parties in favour of the Complainant has been treated by the Opposite Parties as null and void and reverted the said bond to its original status.  By this complaint the Complainant has challenged the said transfer made by the Opposite Parties in the name of the deceased.  It is contended that if the Complainant is aggrieved by such transfer effected by the Opposite Parties in the name of deceased, then the Complainant should have filed a suit for seeking declaration before the competent Civil Court.  According to the Opposite Parties the deceased is the owner of the said bond and as such, the Complainant has no right in respect of the said bond and therefore, the Complainant is not a consumer within the meaning of Sec.2(d) of the Consumer Protection Act, 1986.  The Complainant has no locus standi to file this complaint.  It is submitted that Mr. Pankaj Shah is one of the nominee in respect of the bond in question and has raised the dispute with regards to the rights of the Complainant.  The Complainant has not joined Pankaj Shah as party to this complaint.  The Complainant is therefore, bad for non joinder of the necessary Parties and is liable to be dismissed on that count.  It is contended that on 22/07/04 when the Complainant made application to the Opposite Parties for transfer of the bond in question in her name on the basis of writing dated 28/06/04 alongwith the transfer form purported to have been signed by the deceased Vasantlal Shah, the Complainant did not inform that Vasantlal Shah had expired on 04/07/04 i.e. prior to filing of the said application for transfer.  It is contended that the Opposite Parties scrutinized the application by presuming the Vasantlal Shah as alive and on the basis of the said transfer form in good faith transferred the said Bond in favour of the Complainant on 25/08/04.  According to the Opposite Parties the eldest son of deceased Vasantlal by name Pankaj Shah by his letter dtd.14/09/04 informed the Opposite Parties that Vasantlal Shah had expired on 04/07/04.  It is contended that the Complainant and her husband had forged the signature of deceased Vasantlal Shah and obtained forged and fraudulent document from the Opposite Parties in the name of the Complainant.  It is submitted that pursuant to the complaint of Pankaj Shah the Opposite Parties upon investigation found that Vasantlal Shah died on 04/07/04 i.e. much prior to the application for transfer of the bond made on 22/07/04.  It was also found that the fact of death of Vasantlal Shah want not informed by the Complainant to the Opposite Parties.  By concealing the said facts the Complainant got the said bond fraudulently transferred in her name. It is contended that upon death of Vasantlal Shah the mandate for transfer became ineffective and as such, could not be acted upon by the bank.  It is contended that therefore, the Opposite Parties requested the Complainant and her husband to deposit the original bond transferred in the name of the Complainant to the Opposite Party and to get the rights decided by the competent Court.  The copy of the letter of Pankaj Shah dtd.14/09/06 is at Exh.‘A’.  It is submitted thereafter the exchange of letters and correspondence and notices were taken place between both the parties to this complaint which are filed alongwith written statement at Exh.‘B’ to ‘G’. It is contended that what is stated by the Complainant in her various letters as well as in the notices sent by her advocate are erroneous and wrong. It is denied that the transfer of the bond in question in the name of deceased is illegal and not binding upon the Complainant.  It is denied that the Complainant is entitled to receive the amount of Rs.19,500/- towards interest as claimed.  It is denied that the Complainant has suffered any loss or mental agony.  It is contended that therefore, the question of claiming any damages or compensation does not arise.  It is denied that the complaint is in-time and the cause of action for this complaint arose on 17/12/2007. 

 8)        The Complainant has filed rejoinder to the complaint under the signature of her husband to whom she had given power of attorney.  The Opposite Parties have filed affidavit of Goli Krishna the Vise President of the Opposite Party No.1.  Both the parties filed the written arguments.  We heard the oral argument of the Complainant’s Ld.Advocate Shri. D.P. Guchia.  The advocate for the Opposite Parties submitted that the written argument submitted by the Opposite Parties be treated as oral argument of the Opposite Parties. 

 9)        The Hon’ble National Commission in the case of Amitabha Dasgupta V/s. United Bank of India have observed that -

“Proceedings under the Consumer Protection Act, are essentially are summary in nature. Adjudication of issues involving disputed factual questions should not be taken up and left to be decided by the Civil Courts.”  

 The Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd. V/s. Munimesh Patel reported in 2006 CTJ 1073 (SC) (CP) has also observed as under –

                      “13.  The nature of the proceedings before the Commission as noted above, are essentially in summary nature.  The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction.  The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.

            14.  Above being the position, the Commission was not justified to deal with the matter in the manner as was done.  In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute.  Accordingly, the appeal is allowed but with no order as to cost.”

            In our view considering the aforesaid observations of the Hon’ble National Commission and the Hon’ble Supreme Court of India, it appears that the dispute regarding the bond in question is necessary to be decided on various counts – such as, 1) Whether the Bond in question is a forged document obtained by the Complainant from the Opposite Parties.  2)  Whether the documents submitted by the Complainant to the Opposite Parties on 22/07/04 for transferring the Bond in question in favour of the Complainant after the death of deceased Vasantlal Shah when he had nominated some nominees in respect of the bond in question can be acted upon by the Opposite Parties. 3)  Whether the complaint is bad for non joinder of necessary parties.  4)  Whether the Complainant is require to file a suit for declaration.  5)  Investigation of the genuineness of the document of alleged gift deed in favour of the Complainant etc.  We therefore, hold that in view of the controversy between the parties, the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by this Forum.  The objection therefore, raised by the Opposite Parties that unless and until the disputes/controversy is resolved by the competent Civil Court and the rights of the parties are decided by the Civil Court, the Complainant cannot claim any rights over the bond in question is legal and proper.  We also hold that this Forum has no jurisdiction to conduct the trial and to record oral evidence and the subject matter of the complaint is beyond purview, scope and powers of the Forum.  In the result in our view the complaint filed by the Complainant is not maintainable before this Forum and the same is required to be adjudicated by Civil Court upon adducing elaborate evidence by both the parties.  We therefore, pass the following order

                                                             O R D E R

i.            Complaint No.320/2007 is dismissed with no order as to cost.

ii.          The dismissal of this complaint, however, will not debar the Complainant from seeking its remedy before Civil Court or any other Forum as the Complainant may choose to get the reliefs in respect of the present case.  

iii.    Certified copies of this order be furnished to the parties.