9911796707
TMI Blog2001 (1) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fa ..... 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