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M. Avanthika v/s Dugar Finance & Investments Ltd.

    Appeal No. 1360 of 1995

    Decided On, 12 August 1996

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, MEMBER

    For the Appellant: P.B. Ramanujam, Advocate. For the Respondent: None.

Judgment Text

E.J. Bellie, President

1. The unsuccessful complainant has filed this appeal.

2. It appears both the complainant and her mother made four deposits of Rs. 5,000/- each totallings to Rs. 20,000/- with the opposite party Dugar Finance and Investments Ltd., under cumulative deposit scheme. For that Ex. A 1 series receipts were issued. The case of the complainant is that even though me deposits have been made in the name of both of them, her mother had subsequently written letter to the opposite party relinquishing her claim in respect of the said cumulative deposits and also for removal of complainant's mother's name under Ex. A-2 dated 27.2.92, inspite of it the opposite party subsequently allowed the complainant's mother to foreclose the 4 deposits and released the amounts even before they were matured by colluding with the complainant's mother and the said act of the opposite party amounts to unfair trade practice and also deficiency in service as contemplated under Consumer Protection Act. The further case of the complainant, is that the entire deposit amounts belong to her. On these grounds the complainant has prayed for relief for directing the opposite party to pay the deposit amount of Rs. 20,000/- with cumulative interest and also a sum of Rs. 25,000/- towards mental agony.

3. The defence of the opposite party is that the complainant's mother had written to them a letter intimating that she has lost the original deposit receipts and also requesting them to issue duplicate receipts and since he was the first applicant in respect of the cumulative deposits in question the opposite party acceded to that request and issued duplicate deposit receipts on execution of indemnity bond on 26.4.93 and subsequent to that the complainant's mother foreclosed the above said deposits by discharging the duplicate receipts and since the opposite party acted as per the terms of the agreement the said act of the opposite party will not amount to any deficiency in service as alleged by the complainant. The opposite party has further claimed that in the case of joint deposit in the nature of "Former or Survivor" account the first applicant is the owner of the money and if the first applicant does not survive the second applicant can claim the money under the deposits and in the present case the complainant's mother being the first applicant had claimed for foreclosure of the cumulative deposits and hence she was allowed to foreclose and the deposits with interest was paid to her. Therefore the opposite party cannot be said to be at fault by payment of the amount. The opposite party has also claimed that at no stage the complainant ever made any claim to the deposit amount as belonging to her exclusively. Therefore, the complaint is not maintainable and the complainant will not be entitled to any amount.

4. The District Forum on consideration of the evidence and terms of cumulative deposit schemes held that the mother being the first depositor she alone so long as she is alive entitled to foreclose or receive the amount. It further held that the case of the complainant that the mother had written letters to the opposite parties for relinquishing her claim has not been proved by the complainant. On these grounds the District Forum has held that the complainant is not entitled to any amount claimed and hence the complaint was dismissed.

5. On hearing both sides and on perusal of the records we find that the order of the District Forum is not wholly correct. Regarding the pleadings of the complainant that her mother-the 1st named person in these deposit receipts had written a letter Ex. A 2 to the opposite party relinquishing her rights in the deposits and requesting that all the payments must be made to her daughter-the complainant, the opposite party has denied that any such letter was received by it and therefore, as correctly held by the District Forum, there is no proof of this allegation and hence that has to be rejected. Regarding the further pleading of the complainant that the 1st named person had written Ex. A8 to the opposite party wherein she had instructed to delete her name and instead include the name of one Jagdish, this too has been denied before us. It is then argued that in any case the opposite party should not have allowed the 1st named person to foreclose the deposits and paid the amount to her without getting the consent of the complainant. On carefully going through Ex. A 5 "Terms and conditions governing acceptance of deposits", we find that there is some force in this contention. In Ex. A 5 under the head ‘Joint Deposit’ in Clause (1), it is mentioned as follows:

"Joint Deposit:

1. In the case of deposits in joint names, the number should not exceed two. Such deposits will be accepted on Former or Survivor basis only. All correspondence will be addressed to the person whose name appears first on the application form. All the cheques, warrants for interest payment and repayment of deposits will be drawn in favour of the first named depositor only during his life time."

It is significant to note that in this Clause (1), nothing is mentioned about foreclosure of deposits. It does not say that the first named person will have the exclusive right to foreclose the deposit. Clause (6) under the head "REPAYMENT OF DEPOSITS": in Ex. A 5 is in the following terms:

"Repayment of Deposits:

1. xxx

2. xxx

3. xxx

4. xxx

5. xxx

6. Where a deposit held in joint names is sought to be foreclosed or loan has to be availed the relative deposit receipt should be discharged by both the depositors."

From this it is clear that unless both the first named person and the second named person in the deposit jointly discharge the deposit receipt foreclosure should not be allowed at the instance of the 1st named person alone. It is not in dispute that the complainant the second named person has not joined in discharging the deposit and the opposite party has allowed the first named person to foreclose the deposit. Therefore, the act of the opposite party in allowing the first named person to foreclose the deposit is a clear breach of the terms and conditions governing the acceptance of deposits.

6. Now the position is: the first named person had herself alone got the deposits foreclosed and had obtained the entire amount due under the deposits on 17.6.93. She is even now alive. Therefore even if the foreclosure by the first named person had not been allowed by the opposite party, after the date of maturity of the deposits i.e.,7.2.94 she would have been entitled to receive the entire amount as per Clause (1) under the head 'JOINT DEPOSIT' in Ex. A 5 as seen above. Therefore, in any case the first named person would have received the amount and the second named person would not have been entitled to any amount of the deposits. Hence there is absolutely no merit in the contention of the complainant that she is entitled for the deposit amounts and an award must be passed therefor. But as seen above, the opposite party has been clearly at fault in allowing the first named person in foreclosing the deposits and paying the amounts. Even before the maturity date, the complainant had sent a notice Ex. A 3 dated 20.10.93 through her Lawyer to the opposite party complaining about the foreclosure. Here it must be remembered that if before the date

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of maturity the first named person was dead, the second named person would be entitled to the amounts. In such a situation, certainly on hearing about the foreclosure by the opposite party, the second named person would have definitely had a shock and mental pain/ agony. For this the opposite party is liable to pay compensation. It appears to us that the opposite party had deliberately allowed the foreclosures in question. We are, therefore, of the view that the complainant can be granted an award of Rs. 5,000/- as compensation. 7. Accordingly the appeal is allowed in part, the order of the District Forum is set aside and an award is passed for Rs. 5,000/-. This amount shall be paid within one month from today. The respondent shall pay costs of Rs. 500/- to the appellant. Appeal partly allowed with costs.