Shri M.L.Jaggi vs Punjab National Bank
2011 Latest Caselaw 1864 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


                          Judgment delivered on: 30.03.2011


                          RFA No. 125/2009

SHRI M.L.JAGGI                               ......Appellant

            Through: Mr.S.C.Singhal, Advocate.

                          Vs.

PUNJAB NATIONAL BANK                       ......Respondent

            Through: Mr. Preet Pal Singh, Advocate.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
     be allowed to see the judgment?                        Yes
2. To be referred to Reporter or not?                       Yes
3. Whether the judgment should be reported
     in the Digest?                                         Yes


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 96 of Code of

Civil Procedure, 1908 the appellant seeks to challenge the

judgment and decree dated 20.10.2008 passed by the learned

trial court whereby the recovery suit filed by the appellant was

dismissed.

2. The brief facts of the case relevant for deciding the

present appeal are that the mother of the appellant Smt.

Wiran Bai Jaggi deposited a sum of Rs.30,000/- with the

respondent Bank by way of term deposit for 36 months. That

Smt.Wiran Bai Jaggi expired on 5.3.1995 leaving behind the

appellant and respondent no.2 to 6 as her legal heirs. The case

of the appellant is that he came to know about the existence of

the said FDR much later after the death of his mother and on

coming to know about the same, he applied to the respondent

bank for its encashment but in vain. Consequently a legal

notice dated 24.5.2004 was sent by the appellant and in its

reply the respondent bank asked the appellant to furnish some

particulars. But even on complying with the requirements of

the Bank, the bank did not take any steps for the encashment

and, therefore, another legal notice dated 23.12.2004 was

served by the appellant but was not replied to by the bank.

Consequently, the appellant filed a suit for recovery which

vide judgment and decree dated 20.20.2008 was dismissed.

Feeling aggrieved with the same, the appellant has preferred

the present appeal.

3. Mr.S.C.Singhal, learned counsel appearing for the

appellant submits that the learned trial court has wrongly

dismissed the suit filed by the appellant as the respondent

bank did not prove on record the renewal of the FDR in

question in the joint names of late Smt.Wiran Bai Jaggi and

Smt.Urmil Bhambri. The contention of the counsel for the

appellant is that the appellant was in possession of the original

FDR and there could not have been any renewal of the said

FDR without the surrender of the original FDR. Counsel also

contends that the respondent-Bank failed to produce on record

any application or request made by the deceased Smt.Wiran

Bai Jaggi for the renewal of the said FDR in the joint names.

Counsel for the appellant also submits that the learned trial

court has also wrongly decided the issue of limitation in favour

of the respondent. The contention of counsel for the appellant

is that the amount lying deposited in FDR with the bank is not

hit by law of limitation as the money deposited in the FDR

remains as a trust with the bank and as per Section 10 of the

Limitation Act, no period has been prescribed to recover such

an amount if the money is entrusted with someone.

4. Opposing the present appeal, counsel for the

respondent submits that the Bank had duly proved on record

the statement of account of joint account No.11276 which was

opened in the joint names of late Smt.Wiran Bai Jaggi and

Smt.Urmil Bhambri and in which account the interest, as was

being accrued on the said FDR, was being credited quarterly.

Counsel for the respondent further submits that the FDR in

question was renewed at the instance of late Smt.Wiran Bai

Jaggi in the joint names of herself and Smt. Urmil Bhambri on

31.05.1994. Counsel further submits that Smt.Wiran Bai Jaggi

had died on 05.03.1995 and Smt.Urmil Bhambri had

approached the Bank for encashment of the said FDR and the

respondent-bank after completing all the formalities released

the entire payment of the said FDR to her. Counsel further

submits that Smt.Urmil Bhambri was the joint account holder

with late Smt.Wiran Bai Jaggi and thus she was legally entitled

to encash the amount of the said FDR as per the condition of

the joint account being in favour of 'either or survivor'.

Counsel thus states that with the payment of amount of the

said FDR in favour of Smt.Urmil Bhambri, who was the only

survivor of the said joint account, the respondent bank rightly

discharged its liability and after the payment of the said

amount, the appellant had no right to claim the said amount

from the respondent-bank. Counsel for the appellant also

submits that the appellant also did not hand over the original

FDR for the purpose of verification at the end of the

respondent-bank and moreover mere possession of the FDR

alone would not give any special right to the appellant to claim

the amount of the FDR once the said FDR was renewed in the

joint names of late Smt. Wiran Bai Jaggi and Smt.Urmil

Bhambri.

5. Based on the above submissions, counsel for the

respondent submits that no fault or perversity can be found in

the impugned judgment and decree passed by the learned trial

court and the same deserves to be upheld.

6. I have heard the learned counsel for the parties at

considerable length and gone through the records.

7. Based on the pleadings of the parties, the learned

trial court framed the following issues:-

(i) Whether the suit has been filed within period of limitation? OPP

(ii) Whether the plaintiff is entitled to recover the amount on FDR as claimed? OPP

(iii) If issue No.2 is decided in favour of the plaintiff, whether plaintiff is entitled to recover interest, if so, at what rate, for what period and to what amount? OPP

(iv) Relief."

8. In evidence, the appellant examined herself as PW-

1 while the respondent-bank examined three witnesses i.e. DW

1 Mr.R.K.Bhatia, Manager of the Bank, DW 2 Mr.H.R.Dhawan,

who was posted as Assistant Manager with the respondent-

bank at the relevant period and Smt.Urmil Bhambri who was

the joint account holder of the FDR as DW-3. DW-2 in his

evidence had proved the account opening form dated

31.05.1994 Ex. DW2/1 which contains the signatures of late

Smt.Wiran Bai Jaggi and Smt.Urmil Bhambri. There is no

reason to disbelieve the said account opening form and also

the statement of account proved on record as Ex DW 1/1. It is

not the case of the appellant that any official of the

respondent-bank was in collusion with Smt.Urmil Bhambri and

to cause wrongful gain to Smt.Urmil Bhambri the officials of

the respondent-bank had gone to the extent of fabricating the

said documents to support the theory of opening a joint

account in the name of Smt.Wiran Bai Jaggi and Smt.Urmil

Bhambri. I also find it quite strange that the appellant even

after having come to know that the bank had released the

amount of the FDR in favour of Smt.Urmil Bhambri did not

take any steps to sue Smt.Urmil Bhambri and such inaction on

the part of the appellant would clearly show that the appellant

had no grievance so far the release of the amount of FDR by

the respondent-bank in favour of Smt.Urmil Bhambri was

concerned. The appellant has also not placed on record any

document to show that he had ever produced the original FDR

to the bank so as to lodge his legal claim on the amount of the

said FDR. As per the testimony of PW-1, he learnt about the

said FDR sometime in the year 2000 and the original FDR was

given to him by his brother sometime in the year 2003-04. It

would be thus quite apparent that the appellant was not aware

of this fact that the said FDR was renewed by the bank in the

joint names late Smt.Wiran Bai Jaggi and Smt.Urmil Bhambri

and once the FDR was renewed for a further period of 12

months in the said joint names, then the fact that the appellant

came to lay his hands on the said FDR sometime in the year

2003-04 would become absolutely meaningless. Mere

possession of the original FDR alone could not have helped the

appellant to succeed in his claim against the bank in the face

of the renewal of the said FDR for a further period of 12

months in the joint names. The appellant has failed to give any

explanation as to why he did not implead said Smt.Urmil

Bhambri in the recovery suit at least after having come to

know about the defence of the respondent-bank. The appellant

has also not given any reasons for not summoning Smt.Urmil

Bhambri as his witness who admittedly was in his close

relation.

9. In the background of the aforesaid facts and also in

the absence of any allegation of malafide or collusion

attributed by the appellant against the officials of the

respondent-bank, the case set up by the appellant does not

inspire any confidence. This Court, therefore, does not find

any infirmity or illegality in the finding given by the learned

trial court based on the documents proved on record by the

respondent-bank and also on the testimony of Smt.Urmil

Bhambri. The learned trial court has also correctly observed in

the impugned judgment that no explanation came forth from

the side of the appellant as to why no action was taken by the

appellant for a period of four years after he got to know about

the said FDR in the year 2000 itself. I also do not find any

infirmity in the finding of the learned trial court taking a view

that in case of deposit of money with a banker, the banker

cannot be said to be a trustee for the customer in regard to

the customer's money and, therefore, Section 10 of the

Limitation Act would not be attracted to the facts of the

present case. Hence, the suit filed by the appellant on

10.10.2005 to claim the amount of the FDR which had

matured on 31.5.1994 was clearly bared by limitation.

10. In the light of the above discussion, I do not find

any infirmity or illegality in the impugned judgment and

decree dated 20.10.2008 passed by the learned trial court.

11. There is no merit in the present appeal and the

same is hereby dismissed.

March 30, 2011                        KAILASH GAMBHIR,J
dc