Final Order 1

Order Details: Other
Pdf Text: 1 C. R. No. 14
MHCC010052902020 Presented on : 01-12-2020
Registered on : 01-12-2020
Decided on : 10-12-2021
Duration : Y M D
01 00 09
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.58 OF 2020
IN
COMMERCIAL SUIT NO.485 OF 2021
(SUMMARY SUIT NO.1041 OF 2019)
Chatur Tahilram Kriplani,
Age: 74 years, Advocate,
Resident of A204, Gera Landmark,
Kalam Nagar, Pune411 006. ..Plaintiff
Versus
The Saraswat Cooperative Bank
Carrying out Banking Business
at 266, Kanchwala Building, Dr. Annie
Besant Road, Worli. ..Defendant
__________________________________________________________
Ld. Advocate Lavina Kripalani for plaintiff.
Ld. Advocate Sabnis for defendant.
__________________________________________________________
-- 1 of 13 --
2 C. R. No. 14
ORAL ORDER
(Dated this 10th day of December, 2021)
Summons for Judgment seeks decree for an amount of
Rs.5 lacs alongwith interest.
Shorn of unnecessary details, plaintiff’s case may be
summarized as under :
2. Plaintiff Chatur is customer of defendant bank. Till
November/December 2012, plaintiff was the sole holder of the fixed
deposit receipts nos.107271 and 107272. Both the fixed deposit
receipts were to mature on 25/11/2012 and 04/12/2012
respectively. As per the terms and conditions of fixed deposit
receipts, accrued interest was to be credited quarterly into plaintiff’s
savings account bearing No.297009. Defendant bank regularly
credited interest in the savings account of plaintiff after deducting
TDS.
3. In April 2013, plaintiff went to defendant bank for
updating his passbook. He came to know that amounts of Rs.1555/
and Rs.1753/ were credited in his account towards interest of fixed
deposit receipts. Plaintiff further came to know that interest was not
credited against aforesaid fixed deposit receipts after 27/11/20012
and 03/12/2012 respectively. He made inquiry with bank officials
regarding aforesaid fixed deposit receipts and came to know that
aforesaid fixed deposit receipts were discharged by bank on
27/11/2012 and 03/12/2012 respectively through an 'IntraBank '
transaction. He further came to know that on the basis of signatures
of second account holder Ms. Vira, new fixed deposit accounts were
opened jointly in the name of plaintiff, as first account holder, and
-- 2 of 13 --
3 C. R. No. 14
Ms. Vira, as second account holder, from the proceeds of earlier fixed
deposit receipts. New fixed deposit receipts were handed over to
second account holder Ms. Vira.
4. The fixed deposit receipts standing in the single name of
plaintiff should not have not been discharged by the bank on the
basis of instructions of Ms. Vira as she was not holder of those fixed
deposit receipts. Ms. Vira was not having authority for opening new
fixed deposit account without the consent of plaintiff. Therefore,
plaintiff filed dispute before Consumer Forum on the ground of
deficiency of services on the part of defendant bank. Consumer
forum allowed the complaint. However, the said order was
challenged before State Consumer Dispute Redressal Commission.
State Consumer Disputes Redressal Commission allowed the appeal
on the ground that there was no deficiency of services on the part of
the bank.
5. Despite the litigation between the parties, defendant
bank reinvested aforesaid fixed deposit receipts in the joint names of
plaintiff and Ms. Vira. In order to prevent the bank from reinvesting
the amount, plaintiff issued cheque of Rs.2 lacs drawn on defendant
bank. But, said cheque was dishonoured for insufficient funds.
Plaintiff issued notice dated 08/05/2015 to defendant bank.
Defendant bank once again discharged the fixed deposit receipts on
the instructions of second account holder and once again handed
over the fixed deposit receipts to second account holder Ms. Vira.
6. Ms. Vira filed a Petition u/s. 125 of Cr.P.C. against
plaintiff. Said petition was dismissed by the Hon’ble Family Court as
per order dated 22/04/2015.
-- 3 of 13 --
4 C. R. No. 14
7. On 18/03/2019, plaintiff received message from
defendant bank that term deposits are maturing on 15/03/2019 and
02/04/2019. Defendant bank asked plaintiff to contact home branch
for renewal of these deposits. Plaintiff sent notice to defendant bank
calling upon to refund the amount, but, defendant bank failed to
return the amount. Defendant bank has no defence. By making all
these submissions, plaintiff prayed to make the summons for
judgment absolute.
Defendant's reply :
8. Defendant bank by filing it’s reply affidavit, strongly
resisted the summons for judgment. It is submitted that prior to
09/02/2001, plaintiff was holding savings account in his name only.
By letter dated 09/02/2001, plaintiff requested defendant bank to
convert said savings bank account into the joint account to be
operated by either or survivor basis by plaintiff and his wife Ms. Vira.
Thereafter, by letter dated 15/02/2001, plaintiff informed the bank
about the change in the address. By letter dated 11/01/2005,
plaintiff and his wife Ms. Vira confirmed that they are holding joint
account. Plaintiff was holding fixed deposit receipts in his name till
the year 2007. However, by the application dated 20/04/2007,
plaintiff added Ms. Vira as a second account holder in fixed deposit
receipts. Those fixed deposit receipts were matured on 27/05/2011
and 20/05/2011. Upon maturity, Ms. Vira signed the original fixed
deposit receipts and instructed the bank for renewal in KDR scheme.
Accordingly, these fixed deposit receipts were renewed. However,
while renewing two fixed deposit receipts, name of plaintiff was
recorded. Those fixed deposit receipts became due on 25/11/2012
and 02/12/2012. After the date of maturity again, Ms. Vira
-- 4 of 13 --
5 C. R. No. 14
submitted for renewal. Thereafter, both fixed deposit receipts were
renewed in the joint names of plaintiff and Ms. Vira. During the
period from April 2007 till April 2013, plaintiff did not object
renewal of fixed deposit receipts in the joint names of plaintiff and
Ms. Vira.
9. Plaintiff filed Consumer complaint no.130 of 2013 before
District Consumer Forum alleging deficiency of services. Said
complaint was partly allowed. Defendant bank challenged the order
of Consumer Forum before State Consumer Disputes Redressal
Commission. State Consumer Disputes Redressal Commission
allowed the appeal and dismissed the consumer complaint
no.130/2013. As per the interlocutory order passed by State
Consumer Disputes Redressal Commission, the amount was deposited
in fixed deposit. Defendant bank called upon plaintiff and Ms. Vira,
by email as well as by letter dated 31/03/2016, to remain present in
the bank for collecting original receipts. But, they failed to appear
before the bank. Suit is barred by law of limitation. The order of
State Consumer Disputes Redressal Commission has attained the
finality. As the Competent Civil Court has already decided the
grievance put forth by plaintiff, present suit is barred by the
principles of ResJudicata. Suit would not lie under order 37 Rule 2
of C.P.C. Plaintiff has valued the suit for Rs.4.12 lacs, however, he
has taken out Summons for judgment for Rs.5 lacs. The second
account holder Ms. Vira is necessary party to the suit. Defendant has
raised the issues which require trial. By making all these submissions,
defendant prayed to reject the summons for judgment.
10. Plaintiff filed Rejoinder affidavit to defendant’s reply
affidavit. It is submitted in the rejoinder affidavit that suit is not
-- 5 of 13 --
6 C. R. No. 14
barred by law of limitation. Principle of resjudicata is not
applicable. Second account holder Ms. Vira is not necessary party to
the suit. Defendant has not challenged para Nos.6 and 7 of the
plaint. On maturity of fixed deposit receipts, defendant bank was
bound to credit the said amount in the savings account of plaintiff,
but, instead of crediting the amount in the saving account, the
defendant bank has again renewed the fixed deposit receipts without
plaintiff’s instructions. Ms. Vira is not plaintiff’s wife. Family Court
dismissed the petition filed by Ms. Vira claiming maintenance u/s.
125 of Cr.P.C. There is no person by name Ms. Vira Kripalani. Ms.
Vira Mohan Sahani was an old customer of defendant bank. She
introduced plaintiff while opening the savings account. Defendant
bank did not carry out KYC and allowed Ms. Vira to operate the
account. Ms. Vira cannot appear before defendant bank as 'Vira C.
Kripalani'. Defendant bank due to it’s own negligence permitted its
old customer Ms. Vira Sahani to operate the bank account by falsely
making her second account holder. Defendant bank is taking TDS on
the accrued interest from his account. Second account holder has no
legal interest in the amount kept in fixed deposit receipts. By
making these submissions, plaintiff urged that defences taken by
defendant bank are not legally tenable.
11. Ld. Counsel Ms. Lavina Kripalani appearing for plaintiff
made following submissions:
(i) Ms. Vira introduced plaintiff to defendant bank.
Defendant bank was knowing the identity of Ms. Vira. Ms. Vira was
later on added as a second account holder. Defendant bank failed
to follow mandatory procedure of KYC. If defendant bank had
-- 6 of 13 --
7 C. R. No. 14
followed KYC, it would not have allowed Ms. Vira as a second
account holder.
(ii) The fixed deposit receipts were not in the joint names of
of plaintiff and Ms. Vira, but, those fixed deposit receipts were in the
name of plaintiff alone.
(iii) Defendant bank should not have allowed Ms. Vira to
discharge fixed deposit receipts standing in the name of plaintiff.
Defendant bank should not have allowed Ms. Vira for giving
instructions regarding renewal of fixed deposit receipts. Defendant
bank wrongly issued fixed deposit receipts in the name of plaintiff
and Ms. Vira. Therefore, plaintiff alone is entitled to the amounts
kept in the fixed deposit receipts.
(iv) Plaintiff approached Consumer Forum on the ground of
deficiency of service of defendant bank. The judgment of Consumer
Forum is not binding upon Civil Court. Therefore, present suit is not
barred by the principle of ResJudicata.
(v) Plaintiff is claiming amounts of fixed deposit receipts
which are renewed from time to time. Defendant bank by it’s
message dated 18/03/2019, asked plaintiff to confirm renewal of
fixed deposit receipts. Suit is filed for amounts kept in the fixed
deposit receipts and it would be governed by Art.22 of The
Limitation Act. Suit is filed well within limitation.
(vi) Family Court dismissed the petition filed by Ms. Vira and
it is already held by Competent Court that Ms. Vira is not the legally
wedded wife of plaintiff. Insistence of defendant bank in asking
plaintiff to appear before the bank alongwith Ms. Vira, for discharge
of fixed deposit receipts, is illegal. Plaintiff is rightful claimant to the
-- 7 of 13 --
8 C. R. No. 14
amounts kept in fixed deposit receipts. Defendant bank is the debtor
and plaintiff is the creditor, therefore, summary suit under Order 37
Rule 2 of C.P.C. would lie as plaintiff is seeking to recover only the
debt.
(vii) Ms. Vira did not have any claim or interest in fixed
deposit receipts, therefore, she is not necessary party to the suit. By
making all these submissions, Ld. Counsel for plaintiff prayed for
allowing summons for judgment.
12. Ld. Counsel Mr. Sabnis appearing for defendant
contravened the above submissions with following arguments:
(i) Suit claim is not covered u/o. 37 Rule 2 of C.P.C. Suit is
valued for Rs.4.12 lacs and summons for judgment is taken out for
Rs.5 lacs.
(ii) Plaintiff challenged the action of defendant bank i.e.
keeping the fixed deposit receipts amount in the joint names of plain
tiff and Ms. Vira before the Consumer Forum. State Consumer
Disputes Redressal Commission dismissed the complaint filed by
plaintiff on 07/04/2021. Plaintiff has not challenged the said order.
Therefore, said order attained finality. Plaintiff by filing civil suit,
cannot reagitate the same issue before this Court. Suit is barred by
the principle of ResJudicata.
(iii) On 31/03/2016, defendant bank asked plaintiff to get
the order of the Court for amounts kept in fixed deposit receipts.
Plaintiff ought to have filed suit within 3 years. Suit is
governed by Art.58 of The Limitation Act. No document is filed on
record to show that plaintiff is entitled for Rs. Five lacs claimed in the
-- 8 of 13 --
9 C. R. No. 14
summons for judgment. Therefore, plaintiff is not entitled to get
decree as prayed in summons for judgment.
13. Considered the submissions advanced on behalf of both
the sides. Plaintiff claims that he is a creditor and defendant bank is
a debtor. He relied upon Tannan's Banking Law and Practice in India
and submitted that for the purpose of fixed deposits in the bank, the
depositor would be a creditor and bank would be a debtor. This legal
position is not disputed by defendant. Plaintiff, being a depositor,
would be a creditor and defendant bank would be a debtor.
14. Defendant bank raised the issue of limitation and
ResJudicata. Plaintiff contends that he has challenged deficiency of
the services before the Consumer Forum and now he is seeking
decree before the Civil Court on the basis of his entitlement to the
amount kept in fixed deposit receipts. Both the cause of actions are
different. Defendant bank has renewed the fixed deposit receipts time
to time and intimated the plaintiff accordingly and therefore, for
claiming the amounts kept in fixed deposit receipts, issue of
limitation would not arise, however, if plaintiff seeks to challenge the
action of defendant bank keeping the fixed deposit receipts in the
joint names of plaintiff and Ms. Vira in the year 2012, issue of
limitation may arise.
15. Plaintiff is coming with the case that till November/
December, 2012, he was the sole holder of fixed deposit receipts
bearing No.107271 and 107272. After maturity of both these fixed
deposit receipts, defendant bank without his instructions discharged
those fixed deposit receipts and out of proceeds of fixed deposit
receipts, opened new fixed deposits account jointly in the names of
-- 9 of 13 --
10 C. R. No. 14
plaintiff and Ms. Vira. Plaintiff has not stated as to when he has
opened the account and when Ms. Vira was added as a second
account holder. However, defendant in reply affidavit specifically
contended that plaintiff by letter dated 09/02/2001 converted
savings bank account into joint account to be operated by either or
survivor basis by plaintiff and Ms. Vira. It is further contended that
by application dated 20/04/2007, plaintiff added name of Ms. Vira
for the fixed deposit receipts which were matured on 27/05/2011
and 20/05/2011. Those fixed deposits were in the joint names of
plaintiff and Ms. Vira. Advocate for defendant further contends that
on maturity of both these fixed deposit receipts, defendant bank
wrongly renewed these fixed deposit receipts in the single name of
plaintiff, instead of joint names of plaintiff and Ms.Vira. The fixed
deposit receipts, which were in the name of plaintiff only, matured
on 25/11/2012 and 02/12/2012. Later on, it appears that on the
instructions of Ms. Vira, said amount was kept in the joint fixed
deposit receipts of plaintiff and Ms. Vira. Plaintiff is claiming that he
alone is entitled to the amounts kept in those fixed deposit receipts.
16. Plaintiff contends that he has filed suit to recover debt.
As per Order 37 Rule 2 of C.P.C., suit to recover debt is tenable on a
written contract. No doubt, fixed deposit receipt would be a written
contract between bank and depositor. However, plaintiff has not
filed on record copies of fixed deposit receipts.
17. Plaintiff filed rejoinder to the reply affidavit. However,
plaintiff has not denied averments in the reply affidavit that he has
requested defendant bank to add Ms. Vira as a second joint account
holder. He has also not denied in Rejoinder Affidavit that on
20/04/2007, he filed the application and instructed defendant bank
-- 10 of 13 --
11 C. R. No. 14
to add name of Ms. Vira as a second account holder of fixed deposit
receipts. Defendant bank claims that fixed deposit receipts were
standing in the joint names of plaintiff and Ms. Vira till the year
2012, but, plaintiff did not take any objection. Said aspect is also not
specifically denied by plaintiff in rejoinder affidavit. Plaintiff as well
as defendant bank have not filed on record fixed deposit receipts or
copies thereto. However, as stated above, plaintiff claims that fixed
deposit receipts were standing in the single name of plaintiff till
November/December 2012. Said fact is denied by defendant by
giving specific particulars regarding joint fixed deposit receipts in the
name of plaintiff and Ms. Vira. None of the fixed deposit receipts are
on record. Thus, written contract on the basis of which plaintiff is
seeking decree is not on record.
18. Plaintiff has valued the suit for Rs.4.12 lacs and he is
seeking summons for judgment for the decree of Rs.5 lacs. However,
there is no material on record to substantiate plaintiff’s claim of Rs.5
lacs as prayed in summons for judgment.
19. As per reply affidavit of defendant bank, Ms. Vira is joint
account holder of the fixed deposit receipts and therefore she was
competent to operate the account and to give instructions to
defendant bank. Defendant bank is claiming that it has no interest in
the amount kept in fixed deposit receipts. Bank is ready to give
amount in fixed deposit receipts to plaintiff subject to condition that
plaintiff should approach defendant bank alongwith Ms. Vira as Ms.
Vira is a joint account holder.
20. As discussed supra, plaintiff is claiming that he alone is
entitled to the amount kept in fixed deposit receipts. However, fixed
-- 11 of 13 --
12 C. R. No. 14
deposit receipts or copies thereof are not filed on record. In order to
ascertain the plaintiff’s claim, presence of Ms. Vira is necessary. Her
presence is necessary to adjudicate the matter effectively and
completely. Thus, Ms. Vira is necessary party to the dispute.
Conspectus of above all discussion in that defendant raised triable
issues and therefore, defendant is entitled for unconditional leave to
defend the suit. Defendant has already kept the amounts claimed in
the suit in fixed deposits. Thus, plaintiff’s claim is otherwise
protected. For all above reasons, at this stage, plaintiff is not entitled
for leave to sign the judgment. In the result, following order:
ORDER
1. Summons for Judgment No.58 of 2020 is dismissed.
2. Unconditional leave to defend the suit is granted to
defendant.
3. Defendant shall file it’s Written Statement within 30 days
from today.
4. No order as to costs.
5. Summons for Judgment No.58 of 2020 is disposed of
accordingly.
10/12/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 10/12/2021
Transcribed on : 13/12/2021
Signed on : 16/12/2021
-- 12 of 13 --
13 C. R. No. 14
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
17/12/21 at 11.30 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 10/12/21
Judgment and order signed by P.O. 16/12/21
Judgment/order uploaded on 17/12/21
-- 13 of 13 --