Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice on Motion 1
No. 1279 of 2020
MHCC010037732020
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.1279/2020.
IN
S. C. SUIT NO.1153/2020
Azeem Siraj Mukadam. ...Applicant/
(Plaintiff)
In the matter of :
Azeem Siraj Mukadam. ..Plaintiff
V/s.
The Manager, Canara Bank and Ors. ..Defendants.
Appearances :
Adv. Wasim Khan for plaintiff.
Adv. Rahul Salve for defendant No.2
Adv. M.A. Khan for defendant Nos.3
Defendant No.1 exparte
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 11/08/2022
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ORDER
Plaintiff has taken out this Notice of Motion for adinterim
injunction to restrain defendant Nos.2 and 3 from
operating/withdrawing any amount out of their respective accounts
with defendant No.1Bank till production of legal heirs or succession
certificate and to direct the defendant No.1 to freeze the account of the
defendant Nos.2 and 3 lying with them, wherein all the amounts,
credits etc. from the deceased father of the plaintiff have been
transferred, till production of legal heirs certificate or succession
certificate.
2. Heard Ld. advocate Wasim Khan for plaintiff, Ld. advocate
Rahul Salve for defendant No. 2 and Ld advocate M. A. Khan for
defendant No.3. Perused the Notice of Motion, supporting affidavit and
affidavits in reply filed by the defendant No.2 and defendant No.3
3. Ld. advocate for plaintiff submits that defendant Nos.2 and
3 are real sisters of the plaintiff. The father of the plaintiff died intestate
on 07.03.2020. During his life time, he had deposited amount in fixed
deposits to which defendant Nos.2 and 3 were the nominees.
Defendant Nos.2 and 3 have transferred the amounts in FDR in their
account. By relying upon the Judgment of the Hon'ble Bombay High
Court in Shakti Yezdani and Anr. V/s. Jayanand Jayant Salgaonkar
& Ors., 2017(5) ALL MR 307, he submitted that nominee is not the
absolute owner of the amount. Plaintiff is seeking injunction till the
production of relevant certificate. He further submitted that plaintiff as
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well as his father were both employed in Dubai and they have
transferred the amounts in the account of defendant No.2 and 3.
Plaintiff has a share in the amount in FDR's of his deceased father.
However, amount is transferred in the account of defendant Nos.2 and
3. Therefore, he urged that injunction in terms of prayer clause (a) and
(b) be granted in favour of the plaintiff.
4. Ld. advocate for the defendant No.3 submitted that suit
simplicitor for injunction has been filed by the plaintiff. The equally
efficacious remedy for the plaintiff is to bring suit for administration of
estate. The plaintiff is challenging merely the right of nominee and
therefore, the suit is not maintainable. As per Section 45(2)(a) and
45(2)(b) of Banking Regulation Act and guidelines issued by the bank,
nominee is entitled to receive the amount in FDR without production of
heirship certificate. All the FDRs in the name of the deceased father
matured during the life time of the father and amount is already
transferred in the account of defendant No.3. Defendant No.3 has
deposited amount in fixed deposit on 31.03.2020. Ultimately, he
submits that claim of the plaintiff is limited to only FDRs, therefore,
several accounts of defendant No.3 cannot be freezed by passing
blanket order and prayed that Notice of Motion be dismissed.
5. Ld. advocate appearing for defendant No.2 adopted the
arguments advanced by Ld. Advocate for defendant No.3 and further
submitted that the funds were transferred by the father of plaintiff
during his life time. There was no transfer of any amount by plaintiff in
the account of defendant No.2. Amount in FDRs to which defendant
Nos.2 is a nominee, is not transferred to the account of defendant No.2
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and defendant No. 2 does not wish to transfer the said amount to her
account. She is ready to give undertaking to that effect. He further
submitted that plaintiff has not disclosed the FDRs of deceased father to
which the plaintiff is nominee and, on this ground, prayed that Notice
of Motion be rejected.
6. In view of the rival contentions and submissions of both the
parties, following points arise for my determination to which findings
have been recorded for the reasons discussed below:
Sr.No
.
POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case?
..Yes..
2. Whether balance of convenience lies in
favour of the plaintiff?
..Yes..
3. Whether plaintiff will suffer irreparable
loss if relief of injunction is refused?
..Yes..
4. Whether the plaintiff is entitled for the
relief of injunction?
..Partly
Affirmative..
5. What Order? As per final order.
REASONS
7. The case of the plaintiff is that plaintiff as well as his father
both were employed at Dubai and he had kept their joint earnings with
his father. His father kept joint earnings in FDRs and saving’s accounts.
Defendant No.2 and 3 were appointed nominee to the FDRs as plaintiff
was abroad. His father died intestate on 07.03.2020 and left behind
plaintiff and defendant Nos.2 and 3 as the legal heirs. It is further case
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of the plaintiff that his father was operating saving account in
defendant No.1 Bank and had deposited certain amount in fixed
deposits in his name in the defendant No.1Bank. The plaintiff has given
details of six FD receipts in the name of his father.
8. Plaintiff has further contended that after death of father, by
notice dated 30.06.2020, he informed defendant No.1 Bank that he is
legal heir and has one and half share in the accounts, credits and assets
of his deceased father. However, defendant No.1 Bank, instead of
demanding the heirship and succession certificate, rejected the
plaintiff's claim. Defendant No.2 and 3 are operating their accounts in
defendant No.1Bank and amount in the FDRs of his deceased father is
lying in the accounts of defendant Nos.2 and 3. If the said amount is
withdrawn by the defendants, plaintiff will suffer loss, prejudice, harm
and injury as some amount has already been withdrawn by defendant
Nos.2 and 3. Therefore, in the suit, plaintiff has prayed for injunction
to restrain defendant Nos.2 and 3 from operating their accounts and for
directing the defendant No.1 Bank to freeze the accounts of defendant
Nos.2 and 3.
9. The above case pleaded by the plaintiff shows that plaintiff
is claiming interest/share in the amount standing in the savings account
and FDRs of his deceased father. The details of the savings account
which were held by the deceased father of the plaintiff are not on
record. However, the plaintiff has produced the fixed deposit receipts
along with plaint. Out of these receipts, for four FDRs defendant No.2 is
the nominee and for remaining two FDRs defendant No. 3 is the
nominee. It is apparent from the receipts that all the FDRs matured
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prior to 07.03.2020 i.e. during life time of the deceased father of the
parties.
10. Defendant No.3 has produced on record, the documents
which indicate that on 31.03.2020, she has deposited aggregate amount
of Rs. 20,00,000/ in three fixed deposit receipts having maturity date
as 31.03.2025. Ld. advocate for defendant No.3 submitted that the said
amount pertains to fixed deposit receipts to which defendant No.3 was
the nominee. However, defendant No.2 has not clarified the status of
the four fixed deposit receipts to which she was nominee. On inquiry
with Ld. advocate for defendant No.2, he also failed to state the present
status of amount of the said four FDRs. Therefore, as of now there is
nothing on record to indicate the present status of the amount that was
lying in four FD receipts which were in the name of the deceased father
of plaintiff and to which, defendant No.2 was the nominee.
11. I have gone through the authority of the Hon'ble Bombay
High Court in Shakti Yezdani and Anr. V/s. Jayanand Jayant
Salgaonkar & Ors (supra), Therein it is observed that the nominee
does not become absolute owner of the amount standing in the account
of the deceased. The same proposition is laid down in M. Vellaichamy
V/s. District Manager, Virdhunagar District Central CoOperative
Bank, LAWS (MAD) 2018 S 397, relied upon by the Ld. advocate for
defendant No.3. Thus the proposition of law that nominee, though
entitled to receive amount lying in the account of the deceased, holds
the amount as representative of all the legal heirs and not as absolute
owner cannot be disputed.
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12. Though the FDRs matured during the life time of the
deceased father of the plaintiff, it is evident from the FDRs made by the
defendant No.3 in her own name that those FDRs were made after the
death of her father. Defendant No.2 could not provide the status of the
amount lying in the FDRs to which she was nominee. Therefore, prima
facie the plaintiff, as a legal heir, is entitled to share in amount which
was belonging to his deceased father.
13. As regards the claim of the plaintiff that he as well as his
father transferred amounts in the account of defendant No.2 and 3 on
various occasions, plaintiff has produced on record, the statement of
accounts of defendant No.2 as well as defendant No.3 which reflects
various entries showing transfer of certain amounts in their account
from abroad. Even if, during his life time, the father has transferred his
own earnings in the account of his daughters, the claim of the plaintiff
with regards to those amounts is prima facie questionable. Moreover,
there is no material to clearly indicate any transfer of fund directly by
the plaintiff into the account of defendant Nos.2 and 3. There is no
express relief in respect of any such amount in the plaint.
14. However, as is evident from the documents, plaintiff prima
facie is having a share in the amount which was lying in the fixed
deposits of his deceased father. Therefore, to that extent, plaintiff has
made out prima facie case. Balance of convenience also lies in favour of
the plaintiff, so far as the amount in the FDRs of his deceased father is
concerned and there is every possibility that plaintiff may suffer
irreparable loss if the said amount is utilised by defendant Nos.2 and 3
by depriving the plaintiff of his share in the said amount. However, no
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case is made out by the plaintiff to grant blanket injunction order at
least in case of defendant No.3 to restrain her from operating her
account with defendant No.1 Bank. As regards defendant No.2, the
present status of the amounts in FDRs of her deceased father to which
she was a nominee is not forthcoming. Therefore, till that status is
submitted on record, she can be restrained from operating/withdrawing
any amount from her account lying with the defendant No.1Bank.
15. Ld. advocate for defendant No.3 by relying upon the
Judgment in Billimoria Jehan Bux Tehmijras V/s. Indian Institute of
Architect, LAWS(BOM) 2004 10 36 submitted that temporary
injunction can be granted in the aid or as auxiliary to the final relief and
when final relief cannot be granted, temporary injunction of the same
nature also cannot be granted. Moreover, by relying upon the
Judgment in Madhusudan Lal V/s. Sachchidanand Purshji Maharaj,
LAWS (ALL) 1950 S 14, he submitted that injunction cannot be
granted to restrain the person, i.e. defendant No.1 Bank in the present
case, from performing duty imposed on him or it by the statute.
However as regards the FDRs to which defendant No.3 was nominee, it
is evident that amount therein is already withdrawn by defendant No.3
and the same is invested in new FDRs.
16. At this juncture, it cannot be conclusively held that the
plaintiff is not entitled to final relief claimed in the suit. Whether in
absence of prayer for administration of estate of the deceased, the
plaintiff is entitled to the relief of injunction can be decided at the time
of final hearing of the suit. However, when prima facie, plaintiff could
point out that he has share in the amount of FDRs of his deceased
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father, at this stage, adinterim injunction needs to the granted in
favour of the plaintiff to the extent of amount lying in the FDRs.
Accordingly, point Nos.1 to 3 are answered in affirmative and point
No.4 is answered as partly affirmative and following order is passed:
ORDER
1. Notice of Motion No. 1279 of 2020 is partly allowed in
following terms
2. Defendant No. 3 is restrained from withdrawing amount in
fixed deposit receipts deposited by her, bearing Nos.
2668401007390/10, 2668401007390/11, 2668401007390/12
till further order of the Court.
3. Defendant No. 2 is restrained from operating and withdrawing
any amount from her account with defendant No.1 Bank
bearing account No. 2668101107134, till she produces status of
four fixed deposit receipts, which are annexed with Exh.C (Colly)
with the plaint at page Nos.17 to 20 and till further orders are
obtained from this Court in that regard. Defendant No.1Bank is
directed to provide necessary information to defendant No.2 in
respect of the said deposit receipts.
4. The prayer clause (a) hereby not expressly granted and prayer
clause (b) of the Notice of Motion stands rejected.
5. Notice of Motion No. 1279 of 2020 is disposed of accordingly.
(SHRI S.B.PAWAR )
Judge
Dt.:11/08/2022 City Civil Court, Gr. Mumbai
Declared on : 11.08.2022
Dictated on : 11.08.2022
Transcribed on : 19.08.2022
Checked & Signed on:
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.09.2022 at 2.30 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 11.08.2022
Order signed by P.O. on 11.08.2022
order uploaded on 05.09.2022
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