Fatema Khatun vs State Bank Of India And 2 Ors
2021 Latest Caselaw 1965 Gua

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GAHC010174132020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/5166/2020

            FATEMA KHATUN
            W/O LATE MANSUR ALI
            RESIDENT OF QTR NO. 57(A) WORK SHOP COLONY, NEEPCO, KHEPA,
            UMRANGSO, PO AND PS UMRANGSO, DIST DIMA HASAO, 788931

            VERSUS

            STATE BANK OF INDIA AND 2 ORS.
            HAVING ITS HEAD OFFICE AT DEBDAS KAMLLEG BLOCK, SYNERGY
            BUILDING, BANDRA KURLA COMPLEX, BANDRA EAST (BEHIND
            NATIONAL STOCK EXCHANGE) MUMBAI 400051

            2:THE ZONAL MANAGER
             STATE BANK OF INDIA. GUWAHATI ZONE
             HAVING ITS OFFICE AT 6TH FLOOR
             SWAGATA SQUARE . ABC POINT
             BHANGAGARH
             GUWAHATI 781005

            3:THE CHIEF MANAGER
            STATE BANK OF INDIA
            KHEPA (GARAMPANI) BRANCH
            DIST DIMA HASAO
            788931

Advocate for the Petitioner   : MR. D P BORAH

Advocate for the Respondent : MR V K BAROOAH
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                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                       JUDGMENT

Date : 25-08-2021

The Court proceedings have been conducted through online court proceeding services.

2. Aggrieved by the action on the part of the respondent Bank authorities in keeping a bank account operated by the petitioner, in partial freeze mode, the petitioner has approached this Court by this writ petition under Article 226 of the Constitution of India.

3. The case of the petitioner, in brief, is that she got married with one Mansur Ali in the year 2005 as per Muslim rites and customs and after the wedlock, two children were born to them. The elder child is presently aged about 14 years and the younger one is aged about 10 years. The petitioner used to maintain a joint account with her husband, Mansur Ali at Khepa, Garampani Branch of the respondent Bank. The said account is a Savings Bank Account bearing no. 11472722303. The nomination was also submitted in the name of the elder daughter and the same was acknowledged by the respondent Bank on 30.07.2012. The petitioner has mentioned that she is the second wife of Mansur Ali. Prior to her marriage, Mansur Ali got married with one Musstt. Julaha Begum earlier but due to differences between them, Mansur Ali married the petitioner and was staying in an official quarter at Khepa, Garampani. Mansur Ali was serving in North Eastern Electric Power Corporation [NEEPCO] Ltd., a Government of India undertaking and he was posted at Umrangso. Mansur Ali retired on 31.12.2018 on reaching the age of superannuation. As Mansur Ali was suffering from various diseases, he was treated at various hospitals after his retirement. Mansur Ali had ultimately expired in his permanent residence located at Tinsukia Gaon, Police Station

- Juria, District - Nagaon on 08.04.2020.

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4. It is the further case of the petitioner that the petitioner is operating the bank account which she held jointly with Late Mansur Ail till his death and there was no complaint whatsoever till his death. When on 09.09.2020, the petitioner went to the respondent Bank branch to withdraw money from the bank account by way of a cheque bearing no. 913812 of even date, the respondent no. 3 refused to honour the cheque on the ground that a legal notice had been served on behalf of Late Mansur Ali. The cheque was returned to the petitioner with an endorsement that the account had active partial freeze. A copy of the legal notice served on the bank was also furnished to the petitioner. The petitioner has alleged that a conspiracy might have been hatched by the sons from the first wife of Mansur Ali. The petitioner submitted a representation before the respondent no. 3 on 10.10.2020 requesting him to lift the partial freeze status against the account. But no action was seen to have been taken by the respondent Bank authorities. Faced with such situation, the petitioner has approached this Court by this writ petition assailing such action on the part of the respondent Bank authorities.

5. Heard Mr. D.P. Borah, learned counsel for the petitioner and Mr. K.K. Dey, learned counsel for the respondent nos. 1 and 3.

6. Mr. Borah has submitted that the Savings Bank Account no. 11472722303 was being operated jointly by the petitioner and her deceased husband. The mode of operation of the bank account was "either or survivor". Referring to the alleged legal notice dated 11.03.2020, Mr. Borah has submitted that merely on the ground that a legal notice was served on the respondent Bank authorities, the respondent Bank authorities could not have freezed the account operated on "either or survivor" basis. Reference has been made to the Reserve Bank of India [RBI] guidelines to buttress his point that unless there is an order of a Court restraining an account holder like the petitioner, from operating an account, the respondent Bank could not have stopped the petitioner from operating the bank account. As there is no restraint order from any Court, the action of the respondent Bank authorities is arbitrary, he submits.

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7. In reply, Mr. Dey has referred to the affidavit-in-opposition filed on behalf of the respondent Bank authorities. It is admitted therein that the mode of operation of the Savings Bank Account 11472722303 was "either or survivor". The said bank account was also the salary account of Late Mansur Ali, who was serving in NEEPCO Ltd., Umrangso and the retiral benefits, etc. of Late Mansur Ali were deposited in the said account. It was on 11.03.2020, a legal notice was received from an advocate who stated to have issued the same on behalf of his client, Late Mansur Ali. Another letter dated 11.03.2020 was received purportedly from Late Mansur Ali wherein he had alleged that the passbook, cheque book, etc. pertaining to the bank account had been kept by the petitioner and amounts were withdrawn by her from the bank account without his knowledge. Having received the legal notice (supra) as well as the letter (supra), the respondent no. 3 had partially freezed the said joint bank account on 07.04.2020 till the dispute was settled. As Late Mansur Ali expired on 08.04.2020, the respondent no. 3 had made the endorsement in the cheque bearing no. 913812 dated 09.09.2020 when the same was presented for collection by the petitioner. He has, however, admitted that the guidelines given by the RBI as regards providing service in relation to bank account from time to time are applicable to the respondent Bank.

8. I have considered the submission of the learned counsel for the parties and also perused the materials available in the record.

9. From the copy of the passbook, it is evident that the Savings Bank Account no.

11472722303 was in the joint names of Mansur Ali and the petitioner. The mode of operation of the said savings bank account was on "either or survivor" basis. The respondent Bank had also acknowledged the nomination made in favour of the elder daughter of the petitioner and Late Mansur Ali vide nomination registration no. 0000000041599668 and the said fact was communicated to Late Mansur Ali by its letter dated 30.07.2012. From the death certificate issued by the Department of Health Services, the Government of Assam, it is noticed that Mansur Ali expired on 08.04.2020 wherein the name of the petitioner is recorded as the wife of Late Mansur Ali. In the legal notice dated 11.03.2020, it was alleged that the petitioner was Page No. 5/7

operating the bank account without the consent of Late Mansur Ali and a number of withdrawals were made by her by keeping the cheque book and the passbook pertaining to the savings bank account with her. By the said legal notice, the respondent no. 3 was requested to take a decision for the benefit of Late Mansur Ali. From a look at the letter dated 11.03.2020, alleged to have been written by Late Mansur Ali, it is noticed that the same had some initials on it. The respondent Bank authorities have not clarified as to whether such initials appearing in the alleged letter dated 11.03.2020 belong to Late Mansur Ali, by matching them with the signatures of Mansur Ali available in the records of the Bank. The Master Circular on Customer Service issued by the RBI on 03.11.2008 has provided for instructions/guidelines in the area of customer services which are required to be followed by the Public Sector Banks including the respondent Bank. Clause 20.1 has mentioned about accounts with survivor/nominee clause. The instruction contained therein is to the effect that where the accounts were opened with the survivorship clause ("either or survivor", or "anyone or survivor", or "former or survivor", or "latter or survivor"), the payment of the balance in the deposit account to the survivor(s) represents a valid discharge of bank's liability provided : firstly, the bank has exercised due care and caution in establishing the identity of the survivor(s) and the fact of death of the account holder, through appropriate documentary evidence; secondly, there is no order from the competent court restraining the bank from making the payment from the account of the deceased; and thirdly, it has been made clear to the survivor(s) that he would be receiving the payment from the bank as a trustee of the legal heirs of the deceased depositor i.e. such payment to him shall not affect the right or claim which any person may have against the survivor(s) to whom the payment is made.

10. It has been specified by the RBI that since payment made to the survivor(s), subject to the conditions laid down therein, would constitute a full discharge of the bank's liability, the insistence on production of legal representation is superfluous and unwarranted and only serves to cause avoidable inconvenience to the survivor(s) and would, therefore, invite serious supervisory disapproval. It has been clarified that in such cases, the banks while making payment to the survivor(s) of the deceased Page No. 6/7

depositor, should desist from insisting on production of succession certificate, letter of administration, etc, or to obtain any bond of indemnity or surety from the survivor(s), irrespective of the amount standing to the credit of the deceased account holder.

11. In the case in hand, it is not a case of the respondent Bank authorities that there is any order from a Court of competent jurisdiction which had restrained the respondent bank from making payment from the joint savings bank account bearing no. 11472722303 which was being operated with "either or survivor" clause prior to the death of Mansur Ali on 08.04.2020.

12. In Anumati vs. Punjab National Bank, (2004) 8 SCC 498 , the Hon'ble Supreme Court of India in the context of a fixed deposit account, has observed an "either or survivor" clause in respect of a joint fixed deposit account means that the amount payable by the bank on maturity of the fixed deposit may be paid to either of the account holders by the bank in order to obtain a valid discharge. In my view, the same analogy is also applicable in case of a savings bank account also which is being operated with "either or survivor" basis. As the survivor of a joint savings bank account, operated with "either or survivor" clause can give a valid discharge to the bank upon the death of the other account holder the action on the part of the respondent Bank authorities in freezing the savings bank account no. 11472722303 is found to be unjustified and arbitrary and also not in consonance of the guidelines laid down by the RBI. In the absence of any restraint order from a Court of competent jurisdiction, mere service of a legal notice on the respondent Bank could not have been termed as a dispute to deny the petitioner, a joint account holder, from operating the bank account. The petitioner being the wife of Late Mansur Ali also prima facie has a claim on the retiral benefits of her deceased husband, in the absence of any rival and better claim. In such view of the matter, it is directed that the respondent Bank authorities shall remove the partial freezing status of the savings bank account no. 11472722303 forthwith to allow the petitioner to operate the same. It is, however, made clear that in the event there is any restraint order from a Court of competent jurisdiction in respect of the said savings account, the respondent Bank shall abide by the direction made in such order.

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13. The writ petition stands allowed to the extent indicated above. No. Cost.

JUDGE

Comparing Assistant