Homi Nariman Bhiwandiwala vs Zoroastrian Co-Operative Credit ...
2001 Latest Caselaw 17 Bom

JUDGMENT

A.B. Palkar, J.

1. This is a suit for damages filed against a Co-operative Bank known as Zoroastrian Co-operative Credit Bank and the Zoroastrain Association on the ground that the Bank refused to allow the plaintiff to operate the joint account held by the plaintiff jointly with one Pestonji Jehangirji Bharucha.

2. According to the plaintiff, said Pestonji Jehangirji Bharucha had a joint saving bank account with him bearing No. 1269 and a Fixed deposit account bearing No. 10513 in which Rs. 600/- was deposited for a period of three years in the year 1985. As per the instructions, the saving bank account was to be operated by Pestonji Bharucha in his life time or by survivor in case of death. In case of fixed deposit however there was no direction that it has to be paid to the survivor. The plaintiff had admittedly filed a suit in the Bombay City Civil Court when he was refused to operate the said saving bank account. In that suit, the plaintiff had taken out Notice of Motion and on concession being made that the plaintiff would furnish security, he was allowed to operate the account and finally a decree is also passed in that suit in favour of the plaintiff. It is an admitted position now that the fixed deposit amount was also credited to the said saving bank account and the same has also been paid to the plaintiff as per the bank record and the plaintiff, although initially did not want to accept this position. When the entries in the account were shown to him, did not dispute the same. According to the plaintiff, after the death of Pestonji Bharucha, he approached the bank for operating the saving bank account, when he was informed by the bank that defendant No. 2 with whom Bharucha was employed had informed the defendant No. 1 Bank that there is a Will executed by Bharucha and in view of the said Will, the amount lying in the account should not be paid to anybody and defendant No. 2 is going to take steps in accordance with the law in respect of the said Will. In view of this, defendant No. 1 did not allow the plaintiff to operate that account and therefore, the plaintiff firstly filed suit in the City Civil Court which was restricted to his claim in respect of saving bank account and after direction of the Court that amount was paid to him and on furnishing security. At this stage on this aspect there is no dispute between the parties. However, in the present suit, it is the contention of the plaintiff that because of refusal of the bank to operate the joint account, he suffered mental agony, loss of reputation and huge expenses, which he had to incur for filing the suit in the City Civil Court and as such he has claimed damages against defendants Nos. 1 and 2 alleging further that the defendants conspired together and did not allow him to operate the account with mala fide intention. He has therefore claimed in all Rs. 7 lakhs with interest at 18% per annum.

3. The suit was resisted by the defendants. Defendant No. 1 has inter alia contended that in view of the communication received from defendant No. 2 regarding the Will of deceased Bharucha, the bank did not allow him to operate the account, even though he was a joint holder. In addition to the amount in the saving bank account and the fixed deposit, there was an amount of about Rs. 21,148/- which the deceased got on his retirement from service of defendant No. 2 and this amount was deposited with the Bank. In view of the Will, defendant No. 1 took legal action by approaching the Administrator General and Administrator General has issued certificate in favour of the executors of the Will entitling them to receive the amount with interest. Therefore, there was no mala fide on the part of the Bank. The suit is not maintainable, firstly for want of notice under section 164 of the Maharashtra Co-operative Societies Act, secondly on the ground that separate suit for cost of another litigation i.e. the suit filed in the City Civil Court, is not maintainable, and thirdly on the ground that the claim for damages, if any, is hopelessly barred by time as cause of action was accrued to the plaintiff, when the plaintiff was refused to operate the account. It was in the year 1986 and the suit for damages filed on 2-4-1997 is not maintainable. Defendant No. 1 Bank acted in pursuance of the Will after obtaining certificate from the Administrator General. Thus the bank has taken action in respect of the amount in accordance with law. The amount in the fixed deposit and the saving bank account has been paid to the plaintiff. The fixed deposit matured in the year 1988 and thereafter the amount of fixed deposit was paid to the plaintiff by crediting the same to the saving bank account and the amount lying in saving bank account was disbursed to the plaintiff in pursuance of the order passed by the City Civil Court.

4. Defendant No. 2 supported the defence taken by defendant No. 1 and contended that in view of the Will executed by Bharucha, it was necessary to take steps and accordingly steps were taken and the bank was intimated not to disburse the amount as there was a Will. Defendant No. 2 being a public trust all trustees ought to have been joined as parties to the suit and in view of the non-joinder of the trustees, the suit is not maintainable. The suit is also barred by time. Defendant No. 2 was required to take action as per the Will.

5. In view of the aforesaid pleadings, issues were framed on 24-11-1999 (per Deshmukh, J.) and the said issues with my findings thereon recorded against them are as follows and the reasons for the findings are stated in the paragraphs that follow :-

ISSUES. FINDINGS

(1) Does plaintiff prove that he was the joint holder of S.B. Account No. 1269 and Fixed Deposit Account No. 2316 along with the late Pestonji Jehangir Bharucha with defendant No. 1 Bank ? Yes.

(2) Does plaintiff further prove that after the demise of late Bharucha, the plaintiff as the survivor sought to operate the said S.B. Account No. 1269 and fixed Deposit Account No. 2316 but that defendant No. 1 wilfully, wantonly and deliberately refused to enter-

      tain the plaintiff compelling the plaintiff to file Suit
      No. 1201 of 1986 and to incur avoidable costs of
      litigation to the tune of about Rs. 1.00 lakhs?                  No.
(3)   Does plaintiff also prove that he incurred necessary
      obsequial expenses of the said deceased Bharucha
      and in connection therewith he sought to operate the
      said account but was refused?                                    No.
(4)   Does plaintiff prove that the said deceased Bharucha
      directed defendant No. 2 to credit and transfer his
      provident fund dues and gratuity into the said saving
      Bank Account No. 1269?                                           No.
(5)   Does plaintiff prove that defendant No. 2 has been
      withholding and continue to withhold the amount
      representing provident fund and gratuity dues which
      ought to have been credited to S.B. Account No. 1269?            No.
(6)   Do defendant No. 2 proves that said late Pestonji
      Jehangir Bharucha allegedly made his last will and
      testament dated 12-12-1985 and appointed three of
      the trustees of defendant No. 2 as alleged executors
      of the said Will so as to cover the proceeds of joint
      accounts of the plaintiff and the said deceased?                 Yes.
(7)   Do defendant No. 2 further prove the validity
      and/or legality of the said purported Will as per their
      submission made before the City Civil Court as                   Does not
      reflected in its oral judgment dated 14-12-1987?                 arise.
(8)   Do defendant No. 1 prove that their action in
      refusing to permit the plaintiff to operate the joint
      account No. 1269 and fixed deposit account No.
      2316 is proper and legal?                                        Yes.
(9)   Does plaintiff prove that his reputation was marred
      and the same was tarnished and that he had to suffer
      mental agony by reason of defendant No. 1 refusing to
      allow the plaintiff to operate the said two accounts
      and that by reason whereof he is entitled to damages             Not
      to the tune of about Rs. 5.5 lakhs?   proved.
(10) Does plaintiff further prove that the Will alleged to
      have been made on 12-12-1985 by the deceased is
      sham, bogus, colourable and fictitious and that the
      same was so prepared by or at the instance of defen-
      dant No. 2 to prevent plaintiff from claiming benefits           Not
      from the joint S.B. Account Nos. 1269 and 2316?                  proved.
(11)  Does plaintiff also prove that the terminal benefits             Plaintiff is
      accrued to the deceased Bharucha is of the order                 not enti-
      of about Rs. 35,000/-? If so, whether the plaintiff              tled to the
      further prove that he is entitled to a sum of about              terminal
      Rs. 50,000/- as claimed by him?                                  benefits
                                                                       accrued to
                                                                       deceased
                                                                       Bharucha.
(12) Does plaintiff prove that the defendant No. 1
      are unlawfully and illegally holding the amount
      lying to the credit of fixed Deposit Account No.
      2316 notwithstanding his Advocate's letter dated
      17-1-1996 addressed to defendant No. 1?                          No.
(13)  Whether the suit is not maintainable for reasons
      alleged in written statement?                                    Yes.
(14)  Whether the suit is barred by law of limitation?                 Yes.
(15) Whether the suit is bad for non-joinder of
      necessary parties as alleged in paragraph 4 of the
      written statement?                                               Yes.
(16) Whether the suit is bad for non-compliance of
      Order 31 of Code of Civil Procedure, 1908?                       Yes.
(17)  Whether the suit is bad in absence of the                        Does not
      permission of the Charity Commissioner?                          arise.
(18) Does the plaintiff prove receipt of his letter
      dated 7-2-1996 by defendant No. 2 ?                              Yes.
(19) Whether defendant No. 1 and 2 have colluded with
      each other as stated in paragraph 20 of the plaint ?             No.
(20) Does the plaintiff prove the correctness or
      particulars of claim at Exh. K to the plaint ?                   No.
(21) Whether the provisions of section 164 of the
      Maharashtra Co-operative Societies Act, 1960
      are mandatory and whether the plaintiff is
      required to file a suit after expiry of two
      months next after such notice in writing has
      been delivered to the Registrar ?                                Yes.
(22) Whether the plaintiff proves that the defendant
      No. 1 is jointly or severally bound and liable to
      pay to the plaintiff Rs. 7 lakhs as and by way of
      damages as allegedly claimed in the plaint ?                     No.
(23)  Is plaintiff entitled to a decree as prayed for ?                No.
(24)  What order/relief ?                                 Suit is liable to
                                                         be dismissed.

 

REASONS
 

6. The plaintiff examined himself and was cross-examined by the defendants. He has produced certain documents in support of his claim and the same would be discussed as and when necessary. So far as defendants are concerned, no oral evidence is led. However, defendant No. 2 has got produced certificate of Administrator General in respect of the amount lying with defendant No. 2 in the savings bank account of Bharucha which was disbursed as per the certificate of the Administrator General.

7. Issue No. 1:---So far as issue No. 1 is concerned, there is no dispute that saving bank account was opened bearing No. 1269. It was a joint account in the name of Bharucha and the plaintiff and instructions were that the amount to be paid to Bharucha till he is alive or the survivor after his death. However, in respect of the same there was already a suit and therefore, no further discussion is necessary.

8. Issue No. 2:---It is true that the plaintiff was not allowed to operate the account, but it was in pursuance of a letter received from defendant No. 2. There was a will left by Mr. Bharucha and since it was necessary for the defendants to act in accordance with the Will, they have taken legal steps in pursuance of the said Will by approaching the Administrator General for a certificate. Defendant No. 1 accordingly informed the plaintiff that since there is a Will, the amount cannot be paid to him in respect of S.B. Account. A suit having been filed by the plaintiff in the City Civil Court against defendants direction of the Court was sought in that suit because the entire amount that was payable by defendant No. 2 to Mr. Bharucha was not deposited in the saving bank account. Therefore, it cannot be said that defendant No. 1 wilfully, wantonly or deliberately refused the plaintiff to operate the said account. The plaintiff has thus failed to prove Issue No. 1 and Issue No. 2 is answered accordingly.

9. Issue No. 3 :---Plaintiff has not adduced any evidence to show that he has incurred expenses and for obsequial ceremony of deceased Bharucha. The bills produced by him are unsigned bills. There is no mention that he has paid the amount and there is also no details for the said expenses as such. In any case the plaintiff has no cause of action to claim such expenses from either of the defendants and hence this issue is answered in the negative.

10. Issue No. 4 & 5:---There is no evidence adduced in support of this issue by the plaintiff. On the contrary in view of the Will executed by Mr. Bharucha the amount was not to be paid to the plaintiff and the plaintiff, may be claiming the amount as he was under on impression that he would be entitled to all the monies left by deceased Bharucha. It is not even his contention that Bharucha had executed document in his favour in respect of the amount lying in his provident fund and gratuity. In this view of the matter, Issue Nos. 4 and 5 are answered in the negative.

11. Issue No. 6, 7 & 8:---It is an admitted position that defendant No. 2 has obtained certificate from Administrator General in respect of the Will of deceased Bharucha. In this connection the learned Advocate for defendant No. 1 brought to my notice provisions of sections 29 and 31 of the Administrator General Act, 1963. The certificate is produced and the amount has been disbursed to defendant No. 2 in pursuance of the said certificate, which is final and conclusive. If the plaintiff wanted to claim anything, he should have approached the Administrator General and sought cancellation of the said certificate. In view of this action, defendant No. 2 cannot be said to have acted illegally. Defendant No. 2 is a trust and the trustees have been appointed as executors of the Will and they have taken steps for getting the certificate issued by the Administrator General. Plaintiff was made aware of this Will in the proceedings before the City Civil Court and therefore, he had opportunity to oppose grant of the certificate, if he had any material to oppose the same. He was, however, neither a beneficiary nor an executor appointed by the Will and therefore, he has kept quiet. Thus Issue Nos. 6, 7 and 8 are answered accordingly.

12. Issue No. 9:---So far as Issue No. 9 is concerned, the plaintiff has not led any evidence. Though there was a joint account, in view of the Will of the deceased Bharucha and the communication received from defendant No. 2, defendant No. 1 did not allow plaintiff to operate the account by asking him to wait and allow defendant No. 1 to ascertain from defendant No. 2 in respect of the said Will. The action of defendant No. 1 was perfectly justified and no damages on that account can be claimed by the plaintiff. Plaintiff has not adduced any evidence to show that because of refusal to operate the account by defendant No. 1, plaintiff has suffered in any way either his reputation being marred or suffer any mental agony. It is also difficult to say as to how the plaintiff could suffer any mental agony or of loss of reputation. In any case he was not entitled to claim any amount, as even according to the statement in the Will the amount to gratuity and provident fund was to go to defendant No. 2 and none else. Hence the issue is answered in the negative.

13. Issue No. 10:---No evidence is adduced in support of this issue that the Will was sham and bogus. Deceased Bharucha was employed with defendant No. 2 and it is difficult to accept as to why defendant No. 2 a public trust would go to the extent of making false Will for such a meagre amount lying in the account of the deceased. More over now the Administrator General has issued necessary certificate. This issue is therefore answered in the negative.

14. Issue No. 11:---The plaintiff has no material to show that he was entitled to the terminal benefit of deceased Bharucha and on the contrary execution of Will and appointment of executors, who are trustees of defendant No. 2, would show that the claim of the plaintiff made in the suit is false. The plaintiff still wants to claim the same inspite of having been informed about the existence of the Will by defendant No. 2, that too without taking any action in respect of the purported Will. Hence this issue is answered in the negative.

15. Issue No. 12:---The fixed deposit was for a period of three years and it matured in 1988. Defendant No. 1 has produced the statement of account which clearly shows that the amount of the fixed deposit on its maturity was credited to the S.B. Account of the plaintiff and he has subsequently withdrew the said amount. Thus there is no question of unlawfully or illegally withholding the said amount by defendant No. 1. Hence this issue is answered in the negative.

16. Issue No. 13, 15 & 21:---Defendant No. 2 is a trust and in case of a trust which is not a legal entity, all the trustees should be joined if a legal action is initiated against a trust. This view is taken by a Division Bench of the Gujarat High Court, reported in Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, . Same view is also taken by this Court in a decision reported in Venkatesh Iyer v. Bombay Hospital Trust & others, . The suit is also not maintainable for want of under section 164 of the Maharashtra Cooperative Societies Act. The notice is mandatory which is clear from the provisions of section 164 of the M.C.S. Act. This is laid down by the Division of this Court in the judgment reported in Mohan Meakin Ltd. v. The Pravara Sahakari Sakhar Karkhana Ltd., 1987 Mh.L.J. page 503, and in head note (b) the Court has held thus :

"Held, that the defendant was a society which was carrying on the business of manufacturing Alcoholic products viz. Whisky and that being the business of the society it was clear that the provisions of section 164 of the Maharashtra Co-operative Societies Act were attracted. One of the objects of the society in addition to manufacture of sugar was the manufacture of complementary products and in that behalf to erect the necessary machinery. The alcoholic products manufactured out of molasses by the defendant co-operative society was a complementary product and the said business fairly and squarely fell within the ambit of the Bye-laws of the society. The provisions of the Maharashtra Co-operative Societies Act, and in particular section 164 of the said Act must apply and in the absence of statutory notice under section 164 the suit was not maintainable."

Head Note (C) of the above judgment also mentions the same position. Thus the suit is not maintainable in the absence of notice and notice given after filing of the suit by the plaintiff makes no difference in the situation as the suit as filed was not maintainable and the defect is not curable by giving notice on presentation of the plaint. Issues No. 13, 15 & 21 are therefore answered accordingly.

17. Issue No. 14:---A perusal of the plaint would show that the plaintiff has based his claim on the cause which accrued to him on the refusal by the Bank to withdraw the amount, which was informed to him by the bank by letter dated 11-2-1986, a copy of which is produced by the plaintiff at Exh. E. The cause of action has thus accrued to the plaintiff long back. After receipt of that letter he filed a suit in the City Civil Court. In case he wanted to claim any damages, he could have claimed the same in that suit and a second suit for any relief on a cause action which accrued in favour of the plaintiff based on which he has filed the first suit in the City Civil Court, is not maintainable and is barred by law of limitation. The suit is admittedly filed after more than 10 years and is thus hopelessly barred by time. Issue No. 14 is thus answered in the negative.

18. Issue No. 16:---This issue does not arise.

19. Issue No. 17:---It was conceded that no permission of the Charity Commissioner is required to file the suit. Hence this issue is answered in the negative.

20. Issue No. 18:---The issue is not material as it does not affect the plaintiff's claim in any way. Defendant No. 2 does not dispute receipt of the letter in question. Hence this issue is answered accordingly.

21. Issue No. 19:---There is no material brought on record by the plaintiff to hold that defendants have colluded in defeating the claim of the plaintiff. In fact they acted bona fide and since there was a Will executed by the deceased, defendant No. 2 rightly informed defendant No. 1 not to disburse the amount lying in the account with defendant No. 1. In any case, the plaintiff has miserably failed to prove he is entitled to claim the amount due under provident fund and gratuity payable to the deceased as held earlier. This issue is therefore issued in the negative.

22. Issue No. 20:---As held in the foregoing issues, the plaintiff has miserably failed to prove any of his claim. The amounts lying in the Saving Bank Account and the fixed deposit have already been paid to the plaintiff by the bank and the plaintiff has appropriated the same. So far as the terminal benefit of the deceased and the damages claimed by the plaintiff are concerned, he has failed to prove his entitlement to the same. He has not even uttered a word in his deposition in respect thereof and no evidence is adduced. There is no question of causing any mental agony to the plaintiff, as the bank has acted bona fide. Inspite of having been informed about the existence of a will, the plaintiff did not take any action in respect of the said Will to get the same declared as invalid, so as to claim estate of the deceased. Therefore this issue is answered in the negative.

23. Issue No. 22, 23 & 24:---In view of the findings recorded on the above issues, the plaintiff is not entitled to claim anything from either of the defendants. There is no question of any joint and several liability of the defendants. The learned Advocate for defendants drew my attention to a judgment of this Court reported in Krushandas Nagindas Bhate v. Bhagwandas Ranchhoddas & others, . However, the amount in the savings bank account jointly held by him with deceased Bharucha was a subject matter of the suit filed by the plaintiff in the City Civil Court. There is already a decree passed in respect of the said saving bank joint account and therefore, there is no question of entering into that aspect of the matter again. I am no entering into further controversy in that respect, there is no question of considering that aspect of the matter now as the City Civil Court decree has become final and the issue involved therein cannot be reopened now. It appears that under certain misconception the plaintiff wanted to make claim even in respect of other amounts left by Bharucha in respect of which there was a Will and defendants have taken action in accordance with law by approaching the appropriate authority for grant of necessary certificate in pursuance of the Will. Hence these issues are answered against the plaintiff and consequently, the plaintiff is not entitled to any amount as claim in the suit and the suit must fail.

24. Suit is dismissed with costs.