Order 1

Order Details: Notice of Motion
Pdf Text: N.M.886-19 in Suit 466-19 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.886 OF 2019
IN
SUIT NO. 466 OF 2019
(CNR.NO.MHCC010023492019)
Mr. Kush Shridhar Bajaj .. Plaintiff
Versus
Bank of Baroda & Ors. .. Defendants
Shri. Pankaj S. Shah, Advocate for Plaintiff.
Shri. Hardik Desai, Advocate for Defendant no.2 and 3.
Shri. Akshay Kamble, Advocate for Defendant no.4.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR No. : 32
Dated : 02nd May, 2019.
: ORDER :
1. Plaintiff taken out this Notice of Motion for order of
temporary injunction restraining Defendant No.1 including its agents,
employees and officers from remitting any amount to Def. Nos. 2 to 4 or
any of them in respect of fixed deposit receipt particularly described in
schedule at Exh.C in any manner whatsoever.
2. Plaintiff is the son of Shri. Shridhar Shobhraj Bajaj who
died intestate on 24.01.2016 leaving behind plaintiff and his brother
Luv are only the legal heirs and representatives. Shri. Bansidhar Bajaj
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and Madhu Nagpal are appointed as legal guardian of the plaintiff by
the National Trust for the welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple Disabilities, Ministry of Social
Justice and Empowerment, Government of India by a Certificate dated
08.07.2018 (Exh.B). Deceased Shri. Shridhar Bajaj was holding five
fixed deposit receipts in Defendant No.1 bank, the particulars of the
five deposit receipts are mentioned in paragraph 4 of the plaint.
Defendants are nominated as a nominee for the said fixed deposit
receipts. If the amounts of the fixed deposit receipts are released in
favour of the defendants then irreparable harm, injury, loss will be
caused to the plaintiff. Hence, prays that Notice of Motion be made
absolute in terms of prayer clause.
3. Defendant No.1 failed to file their reply on the Notice of
Motion, hence Notice of Motion proceeded 'without reply' against
Defendant No.1.
4. Defendant Nos.2 to 4 are the descendants of Shobharaj
Bajaj. Prior to his death, Shobharaj had a miserable personal life. He
had taken divorce from his wife. His son plaintiff suffers from autism –
a mental and development disorder or illness. During his miserable
personal life, his relatives came to his aid and assistance. Therefore,
being grateful to his relative he intended to part with certain amounts
to his relatives and therefore he had nominated the def. nos. 2 to 4 as a
nominee in the fixed deposit receipts. Defendants being the nominee
are entitled the amount of the fixed deposit receipts. Suit has been filed
by the representative of plaintiff without obtaining any valid and proper
authority. Plaintiff has no cause of action to take out the Notice of
Motion against the defendants, hence Notice of Motion be dismissed
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with costs.
5. Considering the averment of both the parties, following
points are arise for my determination and I have recorded my finding as
per the reason given below.
Sr.No. Point Finding
1 Does Plaintiff made out prime facie
case in his favour?
Affirmative
2 Does plaintiff entitled for interim
relief as prayed against defendant
no.1?
Affirmative
3. What Order? As per final order.
6. Heard Ld. Adv. Pankaj Shah for plaintiff, Ld. Adv. Hardik
Desai for defendant no.2 and 3 and Ld. Adv. Akshay Kamble for
defendant no.4.
7. Ld. Adv. Shri. Shah for the plaintiff further submitted that
Luv had email to the defendant no.1 bank on 17/01/2019 stating that
original fixed deposit receipts are in his possession and requested not to
remit the amounts of FDR to anybody under the pretext that FDR are
misplace or not traceable. Defendant no.1 bank sent reply to Luv Bajaj
by email on 04/02/2019 and asked him to produce the order of
injunction and succession certificate for claiming the amounts of the
FDR. Hence cause of action arose for filing the present suit on
04/02/2019. Ld. Adv. Shri. Pankaj Shah for the plaintiff submitted
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that Luv is the citizen of United State of America and working there
therefore, it is difficult for him to travel to India to attend the
proceeding hence only Kush has been filed the present suit through his
legal guardian.
8. Ld. Adv. Shri. Hardik Desai for defendant no.2 and 3
submitted that deceased Shridhar having two sons that is present
plaintiff and Luv Bajaj who is the brother of plaintiff but he is not added
as party in the suit. Deceased Shridhar Bajaj had executed the will on
18/03/2013 and Luv had collected the copy of the will from the
executor of the will Shri.Vijay Raheja on 07/02/2017 but there is no
whisper about the will in the plaint, therefore, plaintiff suppressed the
material fact from the court.
9. It is undisputed fact on record that Luv and Kush are only
the legal heirs of deceased Shridhar Bajaj. Though Copy of the will is
collected by the brother of plaintiff namely Luv, who is not party in the
present suit therefore, there is no question of suppression of fact from
the court. Hence the submission made advanced by Ld.Adv.Shri.Desai
is not acceptable to me.
10. In view of the submission of both the parties, court has to
consider whether the plaintiff has establish prima facie case in his
favour for the relief and also to examine balance of convenience that is
balance of comparative loss cause to the plaintiff and the defendants in
case of not passing order as prayed for.
11. In the instant case, present plaintiff and Shri. Luv Bajaj are
the legal heir of the deceased Shridhar Bajaj. Plaintiff is suffering from
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cerebral palsy. Shri.Luv is the residing in United States of America.
Defendant Nos.2 to 4 are the nominees for the five FDR receipts
mentioned in Para.4 of the plaint. The apprehension of the plaintiff
is that defendants may approach to the defendant no.1 bank to collect
the amount against the FDR receipt on the pretext that original are
misplace or not traceable. If the temporary injunction as prayed by
plaintiff is not granted then defendant no.1 bank will released the
amounts in favour of the defendant no.2 to 4 as they are the nominees
for the said FDR receipts but if the injunction is granted no prejudice
will be caused to them as their claim will be consider and decided in
Succession Certificate which is already filed by the plaintiff in the
Hon'ble High Court.
12. Defendant no.2 to 4 are cousin brother, sister and aunt of
the plaintiff. There were certain family issues relating the estate,
properties of deceased Shridhar Bajaj but plaintiff being the legal heir is
entitled the amount against the FDR receipts. The Ld. Adv.Shri.Hardik
Desai for the defendant no.2 and 3 submitted that defendants are being
the nominees have exclusive rights over the FDR receipts. But it is the
settled law that nominees are the only trustee they can not claim right
over the FDR receipts.
Ld. Adv.Shri. Hardik Desai for defendants place reliance on
Shakti Yezdani and Ors. Vs Jayanand Jayant Salgaonkar
and Ors. MANU/MH/2599/2016.
13. The facts were essentially that a deceased individual left
behind several shares and investment. While the individual made a
bequest in the form of a will, certain others made claims as a nominee
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of the shares. The nominee claim that they were beneficial owners of
the shares upon the death of the nominator in view of such nomination.
There are various Acts, namely Companies Acts 1956, Banking
Regulations Act 1949, Depositories Act 1996, that have provisions
pertaining to nomination. Though all these Act have provision from
nomination, the language of the provision are different in the Act.
While dealing with the provisions of nominations the courts have held
that despite the provision being “not withstanding” the same would not
overrule the Law of Testamentary and Intestate Succession. The
nominee does not become the owner of the asset and is merely a trustee
who holds for and on behalf of legal heirs of the nominator.
14. However the Hon'ble Bombay High Court in case of Harsha
Nitin Kokate Vs Sarsawat Coop Bank Limited was held that has the
provision is “notwithstanding any other provision in law” and also vests
the assets in the nominee. The nominee takes the asset to exclusion of
the other heirs and becomes the owner of the asset. Subsequently in
March 2015, same issue again came up that time after considering all
cases came to the conclusion that the judgment in the Kokate case is
per incuriam and therefore bad law.
15. In case of Jayanand Jayant Salgaonkar and Others Vs
Jayshree Jayant Salgaonkar held that a nominee is only a convenience
to enable the company, bank or insurance company to discharge its
obligation. However, nominee can hold the proceeds as a trustee for
the rightful heir of the deceased whether under intestate law or under a
will. Any other interpretation would the render the law of succession to
be meaningless.
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16. As the plaintiff being the legal heir of deceased Shridhar
Bajaj therefore primafacie he is having a right over the FDR receipts.
Therefore, to protect his right temporary injunction is required to be
issued against the defendant no.1 bank with respect to not to remit the
amounts to the defendant no.2 to 4 till the decision of Succession
Certificate. The balance of convenience tilting in favour of the plaintiff
and clear possibility of irreparable injury being caused to the plaintiff, if
temporary injunction not granted. The effect of not granting an
injunction will be deprive the plaintiff of the right claimed by him in the
suit.
17. In view of the above discussion, I answer point no. 1 and 2
is the affirmative and pass the following order.
: ORDER :
1. Notice of Motion No. 886/2019 is made absolute till the decision
of Succession Certificate.
Date : 02.05.2019 (Pushpa N. Rao)
Ad hoc Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer : 02.05.2019
Signed by HHJ on : 02.05.2019
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N.M.886-19 in Suit 466-19 8
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 02.05.2019 at 5.30pm
NAME OF THE STOP GAP STENOGRAPHER : Mrs. P.S.Mahale
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
02.05.2019
Judgment/Order signed by P.O. on 02.05.2019
Judgment/Order uploaded on 02.05.2019
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