Deepa Sharma, Presiding Member
1. The present Complaint has been filed alleging that the Complainant has been appointed as the Executor of the will of late Aditya Jagmohan Sharma. It is submitted that as per his will dated 25.09.2003, the Complainant was required to establish a trust in the name and style of Aditya Jagmohan Sharma Social Welfare Trust (“said trust”) and thereafter, it was ordered that the entire immovable and movable properties of late Aditya Jagmohan Sharma shall vest in the trust which shall be used thereafter for the welfare of orphans and under-privileged children. After the probate of the said will was given to the Complainant on 07.03.2011, she established the said trust in December 2011. She wrote several letters to Opposite Party to transfer the funds lying in the saving accounts maintained by late Aditya Jagmohan Sharma in the account of the said trust. The Opposite Party however, did not take any action and also did not respond to her legal notice. She even approached the Banking Ombudsman of RBI Ahmedabad through her Complaint dated 30.10.2012. The opposite party vide letter dated 21.12.2012 asked the complainant to supply the original documents for verification by the Branch Manager which she promptly supplied on 07.02.2013. She had also filed the certified copy of those documents, despite that, the money lying in the saving bank account no.002401007358 was not transferred to the account of the Trust. The demat account bearing client ID No.11542064 in the name of late Aditya Jagmohan Sharma, maintained with the Opposite Party was also not transferred in favour of the trust. Believing that the contempt petition before the court which had granted the probate would be a proper remedy, she filed the contempt application bearing No.CMA 55/13 on 10.06.2013. The Opposite Party filed its written statement on 16.05.2014 in the said contempt application. It is submitted that when she learnt that she had filed the case in a wrong forum, she withdrew the said contempt petition with liberty to approach the appropriate forum and this liberty was given to her on 10.10.2017. Thereafter, she immediately approached the forum. On these contentions, it is prayed that the Opposite Party be directed to transfer all the deposits along with approved interest in the saving account bearing no.002401007358 in the name of late Aditya Jagmohan Sharma and also the shares and securities held by him in the demat account client ID No.11542064 and also to pay Rs.10 Lakhs as compensation for the loss of opportunity to use the said money and shares/securities and Rs.15 Lakhs as compensation to the Complainant for mental agony and harassment.
2. The notice of the Complaint was duly served upon the Opposite Party. The Opposite Party, however, did not attend the proceedings before this Commission and they were proceeded ex parte vide order dated 13.02.2019.
3. The Complainant led her evidence.
4. We have heard the arguments and perused the relevant record.
5. It is argued by learned Counsel for the Complainant that the Complaint is not barred by limitation. It is submitted that the Complainant had inadvertently lost much time in pursuing the remedy before a court which had no jurisdiction and that period should be deducted while calculating the period of limitation of two years provided under the Consumer Protection Act, 1986. Reliance is placed on the findings of Hon’ble Supreme Court in “Lakha Ram Sharma versus Balar Marketing Private Ltd. (2014) 14 SCC 331. It is also argued that the Opposite Party in its written statement filed before the Civil Judge in the proceedings under CMA No.55/13 had clearly admitted its liability and undertaken to do the needful, still it did not do anything.
6. There is no doubt that apparently, the present Complaint is barred by limitation. However, under the Limitation Act, the Complainant is entitled for the deduction of the period which she has spent in pursuing the remedy before a forum which had no jurisdiction, while calculating the period of limitation. The Hon’ble Supreme Court has also in the case of Lekha Ram’s case (supra) endorsed the same view. In view of this, it is apparent that the Complaint is not barred by limitation and therefore is maintainable. The Hon’ble Supreme Court in the case of “National Insurance Company Limited Versus Hindustan Safety Glass Works Limited (2017) 5 SCC 776, has clearly held that the provision of Limitation Act under the Consumer Protection Act, 1986 cannot be strictly construed to the disadvantage of a consumer. We, therefore, hold that the Complaint is not barred by limitation.
7. From the probate order, it is apparent that the Complainant was required to establish a trust as per the wish of late Sh. Aditya Jagmohan Sharma and thereafter, as per his will, all his movable and immovable properties were to be transferred to the said trust which thereafter had to be used for the welfare of the poor and under privileged children. The Complainant has clearly stated that on oath in her affidavit that late Sh. Aditya Jagmohan Sharma, was having saving account no. 002401007358 with the Opposite Party and was also having a demat account bearing client ID No.11542064 with the Opposite Party. Before the Civil Court in CMA No.55/13, the Opposite Party has admitted its liability in the written statement dated 16.05.2014 in para 8, 9 and 10. The relevant paragraphs are produced as under:
8. With reference to paragraphs 4 and 5, the Respondent submits that questioned savings account held with ICICI Bank bearing No.002401007358 had not been operated for long period and hence, the same was categorized as a dormant account. The Respondent further submits that the claim filed by the Applicant before it, is subject to the guidelines framed by the Reserve Bank of India (RBI) and banking practices and such claim can be allowed only in the event the claim is in compliance with the aforesaid RBI guidelines and since the said procedure was not completed hence, the claim is yet to be adjudicated upon by the Respondent. Therefore, the Respondent submits that it cannot be said that Respondent has not complied with order of the Hon’ble Court.
9. The Respondent humbly submits that there have been instances in the past whereby attempts were made to siphon off funds from this savings account No.002401007358 and hence, the Respondent wises to exercise utmost diligence and due care while dealing with the public money involved. In light of the aforesaid contention, the Respondent humbly states that it cannot be held liable for the contempt of the order of the Hon’ble Court as it is in the utmost interest of the public at large that the monies reach the authorised hands and the Respondent has exercised all due diligence to prevent any unauthorised access to the said savings account. Some of the details of the aforesaid attempts made to siphon off funds from the said accounts are annexed as Annexure-I.
10. The Respondent most respectively submits that the Hon’ble Court may issue specific directions in the event, the Hon’ble Court is of the view that the Respondent should transfer the funds lying in the savings account No.002401007358 in the name of Mr. Aditya Jagmohan Sharma to Aditya Jagmohan Sharma Social Welfare Trust, Ahmedabad, having registration no.E19807. The Respondent assures a timely compliance of the order as may be passed by this Hon’ble Court.”
8. It is apparent that this admission of the Opposite Party in the said written statement proves the case of the Complainant that deceased Sh.Aditya Jagamohan Sharma was also having saving account no.002401007358 with the Opposite Party. The Complainant has also proved that the deceased was also having a demat account bearing client ID No.11542064 with the Opposite Party.
9. In view of these facts, while allowing the present Complaint, the following directions are passed:
(i) The Opposite Party is hereby directed to transfer all the money along with interest accrued thereon lying in the account no.002401007358 in the name of late Aditya Jagamohan Sharma through RTGS in the account of Aditya Jagmohan Sharma Social Welfare Trust which was registered through registration no.E19807;
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/> (ii) The Opposite Party is also directed to transfer the demat account in the name of Aditya Jagannath Sharma, if any, in the name of said Aditya Jagmohan Sharma Social Welfare Trust; (iii) A compensation of Rs.2 Lakhs is also awarded which shall be paid by way of RTGS by the Opposite Party to the Aditya Jagmohan Sharma Social Welfare Trust. The compensation is awarded on account of loss suffered by the Trust for not being able to utilise the money which was lying with the Opposite Party to pursue their functions of the body which was made i.e. for the welfare of orphans and under-privileged children; (iv) Litigation cost of Rs.15,000/- is also awarded to Aditya Jagmohan Sharma Social Welfare Trust which shall be paid through RTGS. 10. The compliance of this order shall be made within eight weeks. Free copy of this order shall also be sent to the Opposite Party free of cost.