Devendra P. Thaker And Anr vs Senior Superitendant Of Post ...
2017 Latest Caselaw 4932 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION

                      WRIT PETITION NO. 35 OF 2015

 1. Devendra P. Thaker
 2. Usha D. Thaker
 R/at. 1st Floor, 21-New Gitanjali Society,
 Near Kameshwar School, Jhodhpur Cross
 Roads, Satelite Ahmedabad - 380 015.
 Gujarat, India.                                           ...Petitioners

         Versus

 1. Senior Superintendant of Post Office,
 Mumbai City North West Division and
 Sub Post Master, Borivali.
 Kandivali (East), Mumbai 400 101

 2.  Chief   Post     Master             General,
 Maharashtra Circle, Mumbai

 3. Director (F & S), Department of Post
 Dak Bhawan, Sansad Marg, New Delhi -
 110 001.

 4. Government of India,
 The Ministry of Finance,
 North Block, New Delhi.                               ...Respondents


 Mr. Atul Daga, with Ms. Debashree Mandpe for the Petitioner.
 Mr. Dhanesh R. Shah, for the Respondents.

                               CORAM:   B.R. GAVAI AND
                                        RIYAZ I. CHAGLA, JJ.

DATED: 24th July 2017

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J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. Rule. Rule made returnable forthwith. Learned counsel

for the Respondent waives service of notice. Heard by

consent.

2. The Petitioners by the present Petition are challenging

the impugned communication dated 31st July 2012 by which

the Respondents have refused the claim of the Petitioners for

the amounts payable to them on maturity of the 20, 6 Years

National Saving Certificates ('NSC' VIII Certificates) of

Rs.10,000/- each from post office, Borivali (East) Branch,

Mumbai which they had purchased in October - November

1998. The Petitioners had been promised an amount of

Rs.20,150/- on maturity of each of the 20 NSE VIII

Certificates aggregating to Rs.4,03,000/-, maturity dates

being October 29, 2004 and November 12, 2004 respectively.

3. The Petitioners had purchased the 20 NSC VIII

certificates issued by Respondent No.4 which is the subject

matter of the present Petition. The Petitioners had forwarded

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the cheques on 29th October 1998 and 12th November 1998

towards payment of the said 20 NSC VIII certificates and it

was mentioned by way of stamp endorsement that the same

was issued through "NRO A/c". The applications for the siad

20 NSC VIII certificates also disclosed and stated "NRI" as

the Petitioners belonging to NRI and the Respondents have

noted the same. The Constituted Attorney of the Petitioners

approached the officers of Respondent No.1 for claiming the

amount payable to the Petitioners on maturity of the 20 NSC

VIII certificates. The CA was informed that there were

irregularities in the issue of the Certificates to the Petitioners.

The Petitioners were informed of the irregularities viz. that

the Petitioners being NRIs were not eligible to be issued the

NSC VIII Certificates and are thus not entitled to the maturity

amount. The Petitioners preferred written complaints during

the year 2004 - 2005. On receipt of this complaint, the

Petitioners were informed by Respondent No.1 that the

matter had been referred to the Ministry of Finance by the

Directorate vide communication dated 9th May 2004 for

clarification. The Petitioners not having any response from

the Respondents, had addressed a letter to the Chief

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Postmaster General Maharashtra Circle, Mumbai. In

response, the Petitioner No.1 was informed vide letter dated

4th July 2006 that the matter has now been referred to

Respondent No.3. The Petitioners were not residing in India

and their Constituted Attorney, being the Petitioners sister

passed away in August 2007. The Petitioners made constant

enquiries but there was no definite answer to the letters

addressed by the Petitioners' representative to Respondent

No.1 on 13th July 2011 and 31st July 2011. The Petitioners

had addressed yet another letter dated 24th September 2011

to Respondent No.1 and which was endorsed to the Director

(FS), Department of Posts, New Delhi and was received on

September 27, 2011. The Petitioners had also made

necessary applications under the Right to Information Act,

2005 (RTI Act). The Petitioner No.1 received communication

dated 20th December 2011 in response to the Petitioners'

Application under RTI dated 24th October 2011 from the

Respondent No.1 stating that on receipt of sanction for

regularisation of the irregular issue from the competent

authority, maturity amount would be paid to the Petitioners.

The Petitioners had learnt through RTI that the matter had

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been referred to Respondent No.2. The Petitioners were also

supplied certain documents from Respondent No.4 and

pursuant to which, the Petitioner No.1 received a

communication copy from Respondent No.1 by which the

Petitioners were informed that Respondent No.4 has vide

ID No. F 3/2/2009-NS-II dated 18th July 2012 allowed only

POSB rate of interest to the Petitioners in respect of their

NSC VIII Certificates and their investment has been referred

to as an "irregular investment". Petitioner No.1 had accepted

an amount of Rs.3,01,460/- vide cheque bearing No.595522

under protest reserving his rights to claim the difference plus

interest. Petitioner No.1 had also addressed a letter dated

30th August 2012 to the Minister of State, Communication

and IT, New Delhi. In response to the said letter, Petitioner

No.1 received a letter addressed by Assistant Director Postal

Service (SB & FS), Maharashtra Circle, Mumbai, informing

the Petitioners that only the POSB rate of interest had been

paid and that appropriate action had been taken against the

official who was at fault. The Petitioners have not obtained

the requisite information under RTI and preferred an appeal

before the Central Information Commission, New Delhi and

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pursuant to which Respondent No.3 who was directed to

furnish relevant file notings for the year between 2006 to

2012. The Petitioners being aggrieved by the impugned

communication dated 31st July 2012 and the refusal on the

part of the Respondents to make payment of the said amount

on maturity of the NSC VIII Certificates as well as furnish all

the necessary information, have filed the present Petition.

4. Shri Daga, learned counsel for the Petitioners

submitted that the Respondents were at all time were aware

that the Petitioners were NRI and in fact this had been

mentioned in their application for the NSC VIII Certificates,

and on the cheques it was mentioned by stamp endorsement

that the same was issued through "NRO Account". Shri Daga

has also relied upon the National Saving Certificates (VIII

Issue) Rules, 1989 and in particular Rule 4 (3), wherein it is

mentioned that "Non-Resident Indians (NRIs) were not

eligible to purchase the National Savings Certificates" and

this was introduced by way of amendment on 25th July 2003,

subsequent to the investment made by the Petitioners. Shri

Daga has relied upon a judgment of this Court in Romeo

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Sam Arambhan Vs. Union of India 1 in support of his

submission that the Petitioners cannot be deprived of interest

legitimately accrued on investment after maturity of the

Certificates. Shri Daga has submitted that when the

investment had been made by the Petitioners of the NSC VIII

Certificates, there was no such bar on NRIs purchasing the

NSC's. Shri Daga has submitted that Respondents have

failed to fulfil their obligation of making payment of

aggregating to Rs.4,03,000/- along with interest which they

had promised to pay on maturity of the NSC VIII Certificates.

Shri Daga has, therefore, submitted that the present Petition

be allowed as prayed for.

5. Shri Dhanesh Shah, learned counsel for the

Respondents has also referred to the National Saving

Certificates (VIII Issue) Rules, 1989 and in particular Rule 4

(3) and has submitted that the said Rule was applicable and

that the investment made by the Petitioners as NRI was

irregular as was communicated to the Petitioners. Shri Shah

has submitted that the Petitioners are only entitled to the

1 AIR 2003 Bombay 452.

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POSB rate of interest as applicable. Shri Shah has

accordingly submitted that there is no merit in the Petition.

6. We are of the considered view that the Petitioners

being NRI's were eligible to make the investment in the NSC

VIII Certificates in 1998 and that there was no bar as the

National Saving Certificates (VIII Issue) Rules, 1989, in

particular Rule 4 (3) had been inserted only on 25th July

2003 i.e. subsequent to the purchase of the Petitioners. The

documents on record also clearly reveal that Respondents

were aware that the Petitioners were NRI and this is apparent

from the application for purchase of the NSC's and the

cheque which had been issued by the Petitioners, wherein

the endorsement had been made that it was through an

'NRO' Account. In the light of this Court's judgment in

Romeo Arambhan (Supra), we are of the considered view

that the impugned communication has erroneously stated

that the investment was irregular and Petitioners can only be

granted POSB interest.

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7. We accordingly allow the Petition and pass the

following order:-

(a) The Writ Petition is made absolute in terms of

prayer clause (b).

(b) The Respondent shall make payment to the

Petitioner within a period of 6 weeks from today.

(c) Writ Petition is disposed of in the aforesaid terms.

       (RIYAZ I. CHAGLA J.)                      ( B.R. GAVAI J.)