Bangalore District Court
Mukundan P vs State Bank Of Mysore on 27 March, 2026
KABC010186422014
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND
SESSIONS JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B. (Hons.),
LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 27th day of March 2026
O.S. NO.6660/2014
PLAINTIFF : Sri P. Mukundan,
S/o late G. Parthasarathy,
Aged about 64 years
19/10, Bawa Road,
Residency Apartments,
2nd Floor,
Alwarpet,
Chennai - 600 018.
(By Sri.R.S., Advocate)
-VS-
DEFENDANT: M/s. State Bank of Mysore,
Head Office K.G. Road,
O.S.No.6660/2014
2
Bengaluru - 560 254.
Represented by its Managing
Director.
Branch office at:
M/s. State Bank of Mysore,
Chamarajpet Branch,
P.B. No.1803,
No.29, 4th Main road,
Chamarajpet,
Bengaluru - 560 018.
(By Sri.S.A.A., Advocate)
Date of Institution of the Suit: 30.08.2014
Nature of the suit
(Suit on Pronote, suit for Money Suit
declaration & possession, suit
for injunction)
Date of commencement of 18.01.2023
recording of evidence:
Date on which the Judgment 27.03.2026
was pronounced:
Total Duration: Year/s Month/s Day/s
11 06 28
JUDGMENT
The plaintiff has filed this suit against the defendant for recovery of a sum of Rs.18,89,723/- together with O.S.No.6660/2014 3 future interest at the rate of 18% p.a. from the date of suit till realization.
2. The brief facts of the case of the plaintiff are that :
The plaintiff along with his father had held a Fixed Deposit (Hereinafter referred to as "FD") with the Chamarajpet Office of the defendant from 16.07.1996 and as when the FD mature, the maturity value was rolled over and new FD receipt was issued by the defendant. The instructions for payment of the initial FD and the subsequent rolled over FD has always been "either or survivor".
It is the further case of the plaintiff that the FD receipt dated 12.03.2009 bearing No.64041662904 was issued for the rolled over amount of Rs.8,91,094/- for a period of 24 months. The TDS amount was erroneously deducted from the rolled over amount and hence, the plaintiff through his GPA holder i.e. his father had issued a letter dated 24.06.2009 instructing the defendant to issue a O.S.No.6660/2014 4 fresh FD after adding the TDS amount. Later on the defendant issued a fresh FD bearing No.64044985376 on 25.06.2009 with effect from 24.06.2009 for an amount of Rs.9,19,863/- and having maturity date as 20.12.2011.
The said FD was also issued on "either or survivor"
Clause, held jointly by the plaintiff and his father. However, on 08.05.2010 the plaintiff had issued a letter to the defendant informing it that he had revoked the Power of Attorney given to his father and the said content was reiterated by another letter dated 29.07.2010. He had also instructed the defendant that the closure / pre - closure of the FD can be done only at the instance of both plaintiff and his father.
On 28.09.2011 the plaintiff issued another letter intimating the death of his father Sri G. Parthasarathy. Through this letter he had also informed that the original receipt was misplaced and lost and therefore, he instructed the defendant to close the deposit and issue fresh FD receipt in the name of the plaintiff alone. The said letter O.S.No.6660/2014 5 was delivered by hand and the branch office of the defendant had acknowledged the receipt of the same.
It is further averred that inspite of the specific instruction given vide letter dated 28.09.2011, the defendant had not taken any action and on 10.07.2014 when the plaintiff visited the branch office of the defendant inquiring the status of the FD, he was shocked that the defendant has pre - closed the FD without any instructions from the plaintiff and disbursed the amount to certain persons.
The defendant later on furnished certain papers regarding the claim and settlement made in respect of the aforesaid FD as per the demand of the plaintiff. These documents include letters dated 10.10.2013, which is an internal communication issued by the Branch Office of the defendant to the Assistant Manager of the defendant and the legal opinion dated 28.10.2013 etc., According to the plaintiff, letter dated 10.10.2013 indicated that the defendant had treated the FD as though it was solely in O.S.No.6660/2014 6 the name of Sri G. Parthasarathy. In this context it is averred that the defendant in active collusion and conspiracy with the claimants had fraudulently disbursed the amount belonging to the plaintiff, inspite of being informed that the original receipt had been lost and the pre
- closure of the FD amount cannot be approved without the consent of the plaintiff.
It is further averred that the maturity value of the FD was Rs.13,89,502/- and therefore, the defendant is liable to pay the said amount together with interest @ 18% p.a. from 16.06.2014, which amounts to Rs.18,89,723/-. Hence, this suit.
3. After the institution of the suit, the suit summons was served on the defendant. The defendant appeared and filed written-statement. In the written-statement the defendant has denied the plaint averments and has taken the following contentions:
The defendant has admitted that there was fixed deposit held jointly by Sri G. Parthasarathy and the O.S.No.6660/2014 7 plaintiff. as a HUF (Hindu Undivided Family deposit. It is admitted that since 1996 the fixed deposit was rolled over from year to year. It is contended that G.Parthasarthy expire on 16.7.2011. The defendant has further contended that the plaintiff foresaw an imminent claim from his siblings and attempted to transform a Hindu Undivided Family account into a personal account and therefore, all the correspondences and instructions to the bank were made behind back of his father.
It is further averred that the FD amount was pre maturely closed at the request of the legal heirs of his father Sri G. Parthasarathy. The disbursal of the amount has been made as per the Rules prescribed under the law and the plaintiff cannot deny the fact that the recipients of the FD amount are his mother and siblings. The plaintiff was never in possession of the FD receipt and with a view to avoid being asked to produce the original FD deposit receipt he wrote to the defendant bank that the same was misplaced or lost. In fact the original receipt was furnished O.S.No.6660/2014 8 by the mother and her siblings to the bank. The plaintiff cannot deny the fact that he has been asked to receive his share of the FD amount subject to compliance of bank's requirements. Further, an amount of Rs.13,06,326/- was available at the time of pre - closure and the defendant bank after being satisfied of the claim and other legal heirs of Sri G. Parthasarathy (six legal heirs) and the amount of Rs.2,17,721/- that is payable to the plaintiff is kept in trust by the defendant bank.
Sri G. Parthasarathy is survived by six legalheirs namely Indira Parthasarathy (wife), P. Mukundan (plaintiff herein and 1st son of Sri G. Parthasarathy), Radhika Vasudevan, Padmini Narayan, P. Muralidhar and Sangeetha Ravikanth, and after the death of Sri G. Parthasarathy, the legal heirs of G.Parthasarthy had preclosed the FD on 16.11.2013 and sought disbursal of the sums of money and the amount available at the time of pre - closure was Rs.13,06,326/-.According to the defendant it has settled the claim of the legal heirs of Sri O.S.No.6660/2014 9 G. Parthasarathy and therefore, the suit filed by the plaintiff is mis - conceived and lacks cause of action. Hence, the defendant has sought for dismissal of the suit.
4. In view of the rival contentions raised by the plaintiff and the defendant, the following Issues have been framed by my Predecessor-in-Office:
1. Whether the plaintiff proves after the death of his father G.Parthasarathy, he is the survivor of him and the F.D. is absolute property of him?
[Issue No.1 is modified as below] Modified Issue No.1 :- "Whether the plaintiff proves that after the death of his father G.Parthasarthy, he alone is entitled to receive the fixed deposit amount from the defendant ban?"
Note : The plaintiff in the present case has sought to enforce the contract with the defendant bank by seeking to recover money in relation to fixed deposit which according to the plaintiff was kept in fixed deposit jointly by his father and himself with payment instructions as either or survivor and therefore the question of the plaintiff being the absolute owner of the fixed deposit amount does not arise. Even though the O.S.No.6660/2014 10 plaintiff has claimed that he is the absolute owner of the fixed deposit which is the subject matter of the suit in paragraph no. 15 there is no relief in relation to the said claim. When it is clearly evident from the plaintiff averments and the relief sought that the claim of the plaintiff is limited to enforcement of the contractual obligations against the defendant bank the question of determination of absolute ownership of the fixed deposit in question would not arise. Any adjudication of the claim of absolute ownership without any relief and material pleading detailing the mode of acquisition and the source of funds would convert the suit for recovery of money to that declaration which is impermissible in the light of the relief sought by the plaintiff. Hence issue no.1 is modified as above in the exercise of power under Order 14 Rule 3 r/w Section 151 of CPC .
2. Whether the plaintiff further proves that the defendant has preclosed the Fixed Deposit without any instruction from him and fraudulently disbursed the amounts to certain persons in active collusion and conspiracy of the them?
3. Whether the defendant proves that, the said G.Parthasarathy is survived by six heirs and they sought to pre-close the fixed deposit on 16.11.2013 and sought disbursal of the sum of money and disbursed each of them Rs.2,17,721/- and the amount of Rs.2,17,721/- payable to the plaintiff is kept in trust by it as O.S.No.6660/2014 11 contended in para 4 to 6 of the written- statement?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the plaintiff is entitled to the relief's sought for?
6. What order or decree?
ADDITIONAL ISSUE FRAMED ON 4th NOVEMBER 2019
1. Whether the defendant bank proves that the Fixed Deposit account held in the name of the plaintiff was an Hindu Undivided Family Account?
Modified Additional No.1 :- Whether the defendant bank proves that the Fixed Deposit account held in the name of the plaintiff and his father was a Hindu Undivided Family Account?
Note : The plaintiff in the present case has asserted that the fixed deposit in question was held jointly by his father and himself with payment instructions as either or survivor and upon the death of his father he is entitled to receive the proceeds of the O.S.No.6660/2014 12 same as the survivor of the deceased depositor. The defendant having admitted the claim of the plaintiff in relation to the fixed deposit in question has asserted that the fixed deposit in question is a HUF account in the written statement. When the defendant has admitted that the fixed deposit was held jointly but has contended that the it was in the nature of HUF, additional issue no.1 has to be modified to disclose the joint nature of the fixed deposit. Since it is not the case of either of the parties that fixed deposit was held in the name of the plaintiff alone. In this background the additional issue No.1 is modified as above in the exercise of power under Order 14 Rule 3 r/w Section 151 of CPC.
5. In order to prove the case, the himself got examined as PW.1 and got marked at Ex.P.1 to P.55 documents. On behalf of defendant, the Branch Managers of the defendant Bank got examined as DW.1 and DW2 and other three witnesses are examined as DW.3 and 4. The defendant has got marked got Ex.D.9 to Ex.D.26 documents marked during the course of evidence, while confronted Ex.D1 to 8 to PW1.
O.S.No.6660/2014 13
6. Heard. Perused the records.
7. My findings to the above Issues are as under:
Modified Issue No.1 : In the Affirmative Issue No.3 : In the Affirmative Issue No. 2 : Partly in the Affirmative Issue No. 4 : In the Negative Issue No.5: Partly in the Affirmative Addl Issue No. 1: In the Negative Issue No. 6 - As per the final order for the following:
REASONS
8. ISSUE NO. 1 , 3 & ADDITIONAL ISSUE NO.1 dtd 4.11.2019 :- On a careful and a detailed scrutiny of the materials on record it is evident that the subject matter of controversy is whether the fixed deposit at Ex.D10 (herein after refereed as Fixed deposit in question) was held jointly in the name of the father of the plaintiff and the plaintiff from 16.7.1996 with payment instructions being Either or Survivor OR whether it was held in the O.S.No.6660/2014 14 name of the Hindu Undivided Family represented by the plaintiff and his father. It is not in dispute that the fixed deposit in question was rolled over from 1996 and as and when the previous fixed deposit would mature the maturity value would be rolled over and a new fixed deposit receipt would be issued by the defendant. While according to the plaintiff all the previous fixed deposit receipts and interest certificates were issued exclusively in the name of the plaintiff and his father and therefore the fixed deposit in question was held jointly by the plaintiff and his father and upon the death of the father of the plaintiff, the plaintiff alone became entitled to receive the amount from the bank in accordance with the mandate and the bank is contractual obligated to pay the surviving depositor in order to get a valid discharge. The Learned Counsel for the plaintiff has contended that the survivor's entitlement clause governs the banking operation and discharge of liability and the issue is not of absolute ownership of the funds. He has further contended that even though the O.S.No.6660/2014 15 amount received by the survivor may still be the subject matter of dispute between the legal heirs of the deceased depositor but that dispute is entirely different from the present litigation where the surviving depositor has sued for the recovery of the deposit amount which arises out of a contractual obligation. In the present case it is argued that the defendant bank has violated the express mandate of the account holders by fraudulently disbursing the amount to the legal heirs of deceased depositor. Therefore in the above background it is essential to answer the issues framed by the this court.
9. It is pertinent to note that the defendant has argued that the fixed deposit in question i.e. FD NO. 64044985376 issued on 25.6.2009 for a sum of Rs. 9,19,863/- maturing on 20.12.2011, was linked to the HUF account, which on the death of G.Parathsarathy on 16.7.2011, has been pre closed at the instance of the members of the HUF in order to disburse the funds to the siblings of the plaintiff and the mother of the plaintiff. According to the defendant after O.S.No.6660/2014 16 satisfying itself of the claim and obtaining the death certificate, affidavits and indemnity bonds from the claimants the bank has disbursed the funds amounting to Rs. 2,17,721/- to each of the children and wife of the G.Parathasarathi, save the plaintiff who did not come forward to collect his portion of the funds and his share has been kept in trust by the defendant.
10. An overall glimpse of the written statement denotes that even though the defendant has contended that a fixed deposit was held by the defendant as an HUF account which was operated by the plaintiff and his father, the written statement does not contain any material pleading as to the particulars of the account opening form showing the category marked as HUF, Customer ID Classification, Internal core banking records or entries, existence of HUF declaration at the time of opening the account, details of the karta and coparcenaries, HUF PAN NUMBER, source of FD in terms of saving account arising of sale proceeds of ancestral property, joint family income, etc. Similarly there O.S.No.6660/2014 17 are no details as to whether the father of the plaintiff acted as Karta and the plaintiff was his nominee. There are absolutely no material averments with regard to the pre existence of the HUF savings account or current account which formed the source of funds for the fixed deposit account. Mere taking up a vague plea that the fixed deposit in question is a HUF account without furnishing the afore stated particulars would be of no help to the defendant. It is well settled that pleadings form the foundation for any case in the court of law. If a statement in writing is filed by the counsel of plaintiff stating his contentions on the case, on the basis of which the defendant files the written statement defending himself and explaining why the plaintiff's contentions should not prevail then the defendant is duty bound to narrate the particulars of the defense
10. Order Rule 2 CPC provides -"Pleading" shall mean plaint or written statement.
1[2. Pleading to state material facts and not evidence.-
O.S.No.6660/2014 18 (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. Similarly Order 8 rule 2,3, 4 and 5 of CPC provides that the defendant must raise by his pleading all matters which show the suit not be maintainable and deny the claim of the plaintiff specifically. The defendant is further ordained that while denying the claim of the plaintiff in his written statement he must not deny it evasively but must answer the point of substance. In paragraph no. 15 of the written statement dtd 21.10.2014, the defendant has pleaded that the claim of the plaintiff that FD was either or survivor is self serving and it does not by any stretch of imagination O.S.No.6660/2014 19 remove the cloak of the account being a Hindu Undivided Family account. It is apparent from the said plea that the defendant has not denied that the factum of the existence of the either or survivor clause in the fixed deposit receipts issued in favour of the plaintiff and his father but according to the defendant despite the existence of the either or survivor clause the fixed deposit in question was a HUF account. If the contention of the defendant bank is that the fixed deposit in question was truly in the nature of the account belonging to a HUF in spite of either or survivor clause then the bank would have provided the details of the true legal character of the account in terms of operation by karta, HUF declaration, the corresponding account classification by explaining how the either or survivor clause mandate can exist in the HUF structure in the written statement, HUF pan number, etc but having failed to do so makes it evident that the defendant has adopted such an approach only to avoid its contractual liability.
O.S.No.6660/2014 20
11. In Gian Chand and Brothers Vs. Rattan Lal Alias Rattan Singh], wherein the Hon'ble Supreme Court had considered Order 8 Rules 3, 4 and 5 CPC, it had been held as follows:-
"24. Rule 4 stipulates that a defendant must not evasively answer the point of substance. It is alleged that if he receives a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Rule 5 deals with specific denial and clearly lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted against him .
Similarly the Supreme Court in Thangam v. Navamani Ammal (C.T. Ravikumar & Rajesh Bindal, JJ.), (AIR 2024 SC 1324) referring to Badat and Co. Bombay v. East India Trading Co, AIR 1964 SC 538, it is held as under:
"11. Order 7 of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing the court has jurisdiction. The object is to enable the defendant to ascertain from O.S.No.6660/2014 21 the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written- statement, the particulars to be contained therein and the manner of doing so; XX XX XX These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary." (Emphasis supplied) Therefore from the above precedents it is pellucid that not only the plaint averment should be denied or stated to be not admitted by the defendant but if the denial of a fact in the written statement is not specific and without answering the point of substance the said fact shall be taken to be admitted without any further proof for adopting an evasive approach. When these parameters are made applicable to the facts of the case it is evident that the defendant has not complied with the mandate of law by answering the point of substance with material particulars. Through out the written statement the defendant bank has O.S.No.6660/2014 22 vaguely and evasively denied the claim of the plaintiff making no single averment about the details of the fixed deposit account which is claimed to be a HUF account. The fact that the G.Parathsarathi was acting as the General power of attorney holder of the plaintiff and later on the plaintiff had intimated the defendant regarding the revocation of the general power of attorney given to his father through letters dated 8.5.2011, 29.7.2010 and 14.10.2010, and further the intimation letter dtd 28.9.2011 issued by the plaintiff whereby the plaintiff informed the death of the father of the plaintiff and loss of the original fixed deposit receipt to the defendant are not at all denied by the defendant and in fact the defendant has contended that these letters are a matter or record. Except stating that the interest certificates were issued in the name of the plaintiff and his father as per the wish of the Kartha of the plaintiff and further taking up the contention that the plaintiff was never in possession of the fixed deposit receipt, with a view to avoid being asked to produce the original O.S.No.6660/2014 23 fixed deposit receipt he himself wrote to the defendant that the same has been lost or misplaced, no other defenses are taken. In the circumstances the defendant's plea that the fixed deposit pertains to a HUF in the absence of foundational facts is merely a bald and vague assertion which does not constitute specific denial of the plaintiff's categorical plea that the deposit is joint account is liable to be treated as an evasive denial within the meaning of Order 8 CPC and consequentially owing to the conspicuously evasive denial of the specific claim of the plaintiff in relation to his claim of the fixed deposit in question being a joint account held by his father and himself with either or survivor clause, the claim of the plaintiff is deemed to be have been admitted. It is worthwhile to mention here that this court is not called upon to adjudicate the claim of the plaintiff on an application seeking decretal of the suit on the admission of the defendant under Order 12 Rule 6 CPC and in this context even though this court has taken into consideration the admission of claim of the plaintiff by the O.S.No.6660/2014 24 defendant by way of evasive written statement, it is found necessary to examine the oral and documentary evidence to elucidate the matter in issue involving contractual obligations and to record findings on all the issues under Order 14 Rule 2 CPC.
12. When the evidence on record is examined it is found that none of the documentary evidence produced by the defendant or confronted by the defendant to the plaintiff/PW1 would align with the plea of the fixed deposit at Ex.D10 being a HUF account. Ex.D1 is the certified copy of the Fixed deposit receipt bearing serial no. 0944069, issued on 16.10.2004 which is issued in the name of the plaintiff represented by his GPA holder G.Parathasarathi and his father G.Parathasarathi with either or survivor clause with HUF written by hand and there is nothing in the said receipt to presume that the fixed deposit was held by the HUF. Even though the defendant has produced the said fixed deposit from the records of PCR 15450/2014 but O.S.No.6660/2014 25 there is no corresponding pleading or document to justify that the fixed deposit at Ex.D1 was in relation to G.Parthasarthy HUF from the inception i.e. 1996. Therefore mere marking of Ex.D1 would not come to the aid of defendant. The TDS traces certificate issued by the Income Tax Department reflecting the TDS Payments and Section 65 B certificate at Ex.D3 to D8 which are marked at the time of cross examination of PW1 pertain to PAN Number AABHK4757R with assessee name as K.S.Gopalswamiengar Sons for the assessment years 2009-10, 2010-11, 2011-12, 2012-13, 2013-14. However the defendant has failed to establish the link between the aforesaid TDS traces certificates issued in the name of assessee by name K.S.Gopalswamiengar Sons with the Fixed deposit in question which is claimed to a HUF account by way of material pleadings in the written statement. It is not the pleaded case of the defendant that the fixed deposit in question was assessed under the PAN Number AABHK4757R with assessee name as O.S.No.6660/2014 26 K.S.Gopalswamiengar Sons. The TDS traces certificate at EX.D3, D4 and D6 do not indicate any deductions or transactions despite the continuation of the fixed deposit in question till 2013 until its disbursement in favour of the legal heirs. If the fixed deposit at Ex. D10 was an HUF account then the necessary deductions would have been indication in all the TDS certificates untill 2013 in the name of assessee by name K.S.Gopalswamiengar Sons . In fact there is a categorical declaration of absence of any transactions in the aforesaid certificates and therefore these certificates would not aid and assist the defendant to establish its defense. In respect of Ex.D5 and D7 , no doubt there is a disclosure stating that an amount of Rs 7831 and 10873 were deducted from the total amount credited by the defendant in column No. A of the TDS traces certificates held in the name of the assessee but there is no corroborative piece of evidence to demonstrate that these deductions were made in respect of the fixed deposit in question. Besides if the fixed deposit in question O.S.No.6660/2014 27 was as a HUF account in the name of K.S. Gopalswamiengar Sons in terms of Ex.D3 to D7 as contended above then how is the contention of the defendant that the fixed deposit in question pertains to Gopalswamy Parthasarathi HUF sustainable.
13. It is apparent from the records that the during the course of evidence the defendant has adopted a contradictory stance in intially relying on the TDS traces certificates held in the name of the assessee by name K.S.Gopalswamiengar Sons in terms of Ex.D3 to D7 in relation to fixed deposit in question at the first instance and subsequently relying on the following documents such as , bank statement at Ex.D11 issued on 27.7.2015, Form No. 16A issued on 31.5.2013 at Ex.D12 interest certificate dtd 31.3.2012 at Ex.D13, interest certificate dtd 31.3.2013 at Ex.D14, certified copy of the screen shot of the details of the account of the plaintiff at Ex.D16, bank statement at Ex.D19 & Ex.D22 to 24 all of the above O.S.No.6660/2014 28 disclosing the name of Gopalswamy Parthasarathi HUF. When the line of cross examination is examined it is found that not only the defendant has adopted contradictory approaches but neither of the aforesaid contentions are pleaded in the written statement. It is well settled law that pleadings are considered as the backbone of any legal action in a court of law. They entail an understanding of the mechanics of evidence adduction. The case begins and proceeds on the basis of pleadings. They can be in the form of a written statement, a claim or a defence filed and recorded in writing by either or both the parties, stating their own version of the dispute, based on which the other party shall file its counter affidavit,rejoinder, etc., explaining why the plaintiff's or defendant's contentions should not prevail. Pleadings also form the platform on which the edifice of the case is erected and the evidence presented in trials is the construction carried out on the said platform or plinth. They also assist the courts in determining the ambit of evidence which the parties should O.S.No.6660/2014 29 be allowed to produce at the trial. Within such range, the parties are allowed to submit evidence in favour of their contentions and within such range only, the court considers the admissibility and non-admissibility of evidence.
14. In Kashi Nath (Dead) through L.Rs. v.Jaganath,Kashi Nath (Dead) Through Lrs v. Jagannath,(2003) 8 SCC 740 it was held that where the evidence is not in line with the pleadings and is at variance with it, the evidence cannot be looked into or be depended upon. Along these lines it has been held by the Supreme Court in Bachhaj Nahar v. Nilima Mandal & Ors, AIR 2009 SC 1103 that no amount of evidence, on a plea that is not suggested in the pleadings, can be looked into to grant any relief. Hence the contentions raised by the defendants during the course of evidence or arguments cannot be looked into. In this background none of the documents relied by the defendant at Ex.D3 to D7, Ex.D11 to D14, Ex.D16, Ex.D19, O.S.No.6660/2014 30 Ex.D22 to 24 are relevant and admissible for want of material pleadings in the written statement. Notwithstanding the above findings, it is pertinent to note that the Ex.D12 denotes the TDS deduction of the assessee by name Gopalswamy Parathsarathi (HUF) by indicating the pan number as AABHK4757R, which in fact is the pan number associated with the assessee name K.S.Gopalswamiengar Sons as per the TDS traces certificate at Ex.D3, D4 and D6. Further the reliance on Ex.D16 certified copy of the screen shot of the account details of the plaintiff maintained in the system of the defendant bank does not in any way establish the fixed deposit in question at EX.D10 was treated as a HUF account from the inception as the date of updation in the concerned column is shown as 9.11.2005. The screen shot of the account details maintained in the system of the defendant bank at Ex.D16 does not bear any details of the pan number of the HUF or the Fixed deposit in question and therefore it cannot be taken into consideration to O.S.No.6660/2014 31 conclusively hold that the fixed deposit in question is a HUF account.
15. Merely because the siblings of the plaintiff by name Radhika and Padmini has filed a suit for partition in respect of immovable property against the plaintiff, his father and remaining siblings in O.S No. 25874/2010 at Ex.D17 by claiming that G.Parathasarthi is the karta of the family and G.Parathasarthi (the defendant No.1 in O.S NO. 25874/2010) has asserted that he continues to be the Karta of the family in his written statement at Ex.D18 the same would not grant any leverage to the defendant bank who is having contractual relationship with the plaintiff in relation to fixed deposit in question at Ex.D10. In this context it is also pertinent to mention that Ex.D17 & D18 are also inadmissible for want of material pleadings in the written statement on the aforestated principles discussed above. Meanwhile it also needs to emphasized that DW1 the Manager who initially deposed on behalf of the O.S.No.6660/2014 32 defendant bank has stated in his evidence affidavit that the plaintiff himself in all his communications has addressed the defendant /bank by mentioning the subject matter as HUF account and the plaintiff himself had provided the PAN Number of the HUF account and the defendant as per the procedure in its year end had deducted TDS as per the government and RBI guidelines /directions and remitted the same to the Income Tax authorities but neither the defendant has produced any documents in this regard nor made any suggestions to the plaintiff during the cross examination of PW1. However for the first time the defendant bank through DW2 / the Manager of the State bank of India (after consolidation of State Bank of Mysore with SBI) has adduced his examination in chief through an affidavit and deposed that the fixed deposit in question pertains to Gopalswamy Parthasarthy HUF by deposing that the fixed deposit forms the property of the HUF. DW2 has further deposed that the TDS in respect of the Fixed deposit in question is O.S.No.6660/2014 33 credited to the account of Gopalswamy Parthasarthy HUF PAN NO. AABHK4757R without any material pleading to this effect in the written statement. There fore the evidence affidavit of DW2 with reference to the contents of the examination in chief affidavit which are beyond the contents of the written statement are inadmissible in the light of the principles narrated above.
16. Notwithstanding the above finding, there is nothing on record to demonstrate that Gopalswamy Parthasarthy HUF was holding a separate Pan number under PAN NO. AABHK4757R. There is no explanation as to how the pan number associated with K.S.Gopalswamy Iyengar and Sons at Ex.D3 to 7 and the pan number of G.Parthasarthy HUF reflected at Ex.D12 are one and the same. No documents are produced to establish that Gopalswamy Parthasarthy was holding a HUF savings account or current account leading to the creation of the fixed deposit in question right from 1996 and TDS in relation to the aforesaid O.S.No.6660/2014 34 account was deducted under the PAN NO. AABHK4757R from 1996. DW2 during his cross examination has admitted that the PAN Number found at EX.D3 to D7 belongs to K.S.Gopalswamy Iyengar and Sons and it does not belong to Gopalswamy Parthasarthy HUF. In fact he has categorically deposed that the bank does not have any records to show that the name of G.Parthasarthy HUF is associated with the PAN Number at EX.D12 wherein the PAN NUMBER of the G.Parthasarthy HUF is shown as AABHK4757R and further he has deposed that the bank does not have any acknowledgment issued by the IT department pursuant to form No. 16 A at EX.D12. If the fixed deposit at EX.D10 was treated as HUF account by G.Parthasarthy he would indicated the PAN No. as AABHK4757R and furnished the details of the names of the coparcenaries of the HUF entity at Ex.P12 and therefore it is abundantly evident that the G.Parthsarthy never treated the fixed deposit as owned by G.Parthasarthy HUF. The certified copies of the Income Tax Returns for the year O.S.No.6660/2014 35 2009-10 and 2010 - 2011 at EX.P.51 & Ex.P.52 further reveals that G.Parthsarthi was holding a PAN Number bearing AHEPP5286G and he was paying his income tax but there is no reference to the HUF account held separately in the name of G.Parathsarthy HUF. In the letter at Ex.P12 the father of the plaintiff has represented himself as the general power of attorney holder of the plaintiff requesting the bank to issue fresh Fixed deposit certificate after addition of the TDS amount which was erroneously deducted. If the father of the plaintiff was the Karta as contended by the defendant there was no occasion for G.Parthasarthy to address a letter to the defendant bank as a general power of attorney holder of the plaintiff in his letter head. Ex.P.12 was issued at an undisputed point of time by the deceased depositor in relation fixed deposit in question at Ex.D.10 and therefore in the absence of any contrary evidence it can be held that the Fixed Deposit at Ex.D.10 which was created out of the accumulated funds out the fixed deposit at Ex.P.26 in O.S.No.6660/2014 36 terms of the transfer credit at Ex.P.11 was not a HUF account as it was never treated as a HUF account by the deceased depositor who is alleged to be the Karta of the HUF.
17. It is a matter of record that DW2 has admitted that pursuant to Ex.D15 the bank has produced certain documents in PCR No. 15450/2014 instituted by the plaintiff against the defendant and the legal heirs of G.Parthasarthy and the list of documents with documents are marked at Ex.P.28. It is clearly apparent that the copy of the fixed deposit receipt dtd 12.3.2009 produced from the custody of the plaintiff at Ex.P.26 does not bear the entry of the word HUF as against the certified copy of the fixed deposit receipt dtd 12.3.2009 at document no.5 at Ex.P28. Similarly Ex.P24 does not bear the entry of the word HUF as against the certified copy of the fixed deposit receipt dtd 16.10.2004 at Ex.D1. The production of the copies of the fixed deposit receipts without the tag of HUF O.S.No.6660/2014 37 under Ex.P.24 and Ex.P.26 from the custody of the plaintiff are not at all challenged by the defendant. It is not the case of the defendant that these documents are created by the plaintiff to suit his case. Neither the marking of Ex.P.24 & P.26 were questioned nor the defendant made any endeavor to cross examine PW1 on the genuineness or authenticity of the copies of the fixed deposit receipts from the custody of the plaintiff. According to the plaintiff Ex.P.24 & P.26 were specifically got marked to demonstrate the status of the original records as against the fixed deposit receipts on which HUF tag kept in bank custody. It is noted from the records that on 11.3.2016 the defendant had filed objections to the memo filed by the plaintiff for production of documents dtd 5.3.2016 . But in spite of filing objections the defendant did not raise any objection to the marking of the copies of the fixed deposit receipts from the custody of the plaintiff on 13.7.2016 when Ex.P21 to 26 were marked. The mode of proof in producing Ex.P24 and P26 which are the copies of the O.S.No.6660/2014 38 fixed deposit receipts were never questioned by the defendant and therefore the defendant is precluded from questioning the validity of the proof by virtue of waiver and acquiescence.
18. In R.V.E. Venkatachala Gounder vs Arulmigu Viswesaraswami & V.P. Temple and another (2003)8 Supreme Court Cases 752 has held as under:
"The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal O.S.No.6660/2014 39 because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
Therefore from the principles laid down in the aforesaid case it is evident that when the objection is directed towards the mode of proof alleging the same to be irregular or insufficient the said objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence O.S.No.6660/2014 40 or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit and any omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. In the light of the above the defendant cannot now raise any plea / objection on the mode of proof on the copies of the documents produced during the evidence of PW1 . Besides it was obligated on part of the defendant to explain the inconsistencies in the fixed deposit produced from the custody of the plaintiff at Ex.P24& P26 as against the fixed deposit receipts produced from the records of PCR No. 15450/2014 which are having HUF tag. The defendant has not produced any previous fixed deposits with HUF tag which are corresponding to the copies of the fixed deposits produced from the custody of the plaintiff, viz., the fixed deposit receipt from 16.7.1996 to 16.101998 as per O.S.No.6660/2014 41 Ex.P.21, 16. 10.1998 to 16.10. 2001 as per Ex.P22, 119.10.2001 to 16.10. 2004 as per Ex.P.23, 21.2.2007 to 21.2.2009 as per Ex.P25 and no explanation is offered in regard to the same by the defendant . If the defendant had produced all the fixed deposit receipts denoting the period 16.7.1996 to 16.101998 (which is duration of the first fixed deposit receipt) till the last fixed deposit receipt at Ex.D10 denoting the duration from 25.6.2009 till 20.12.2011 with HUF tag/ marking then the defendant would have discharged its burden of proving that the fixed deposit in question is a HUF account. When DW2 was specifically asked as whether he could produce the documents in relation to the changes made in respect of the fixed deposit account in question he has answered that he cannot furnish the documents as the account in question is old and therefore an adverse inference in this regard can be drawn against the defendant.
19. DW2 has further admitted page No.3, 6, 10, and 13 of Ex.P28 are the screen shots taken on 28.7.2015 from the O.S.No.6660/2014 42 data base of the defendant bank. He has asserted that in terms of the above mentioned screen shots, the bank had opened the data base for amending the details of the customer. He has deposed that the computer has generated a warning along with the true PAN number inclusive of the name of the PAN Holder at page No. 13 of Ex.P28 and despite the warning the bank has proceeded to amend the profile of the G Parthasarthy. When the oral evidence of DW2 is read conjointly with the documents at page No.13 of EX.P28 which contains the screen shot of the account details of G.Parthasarthy it is clear that the account details in relation to the fixed deposit in question were amended subsequently by linking it with the PAN Number of Gopalswamiyengar sons i.e. AABHK4757R, which is not at all connected wuth the fixed deposit of plaintiff and his father. It is not even the case of the defendant that from the inception the fixed deposit in question at Ex.D10 was linked with the PAN number bearing AABHK4757R . DW2 has further admitted that the print outs of the account O.S.No.6660/2014 43 statement of the customer at Ex.D22 to 24 were taken on 25.7.2015. Hence the statement of account would not come to the aid of the defendant to establish that the fixed deposit in question had arisen from the bank account at Ex. D22 to D24. DW2 has further deposed HUF property cannot be divided among the class I heirs under the Hindu Succession Act, 1956 and it exclusively belongs to the members of the HUF however the bank has not advised the claimants to amend the claim form in consonance with the fixed deposit receipt of G.Parthasarthy HUF. He has admitted that there was no reference to HUF in the letter at Ex.P14(a) between the Chamrajpet branch and AGM or at EX.P14(b) which is the approval letter of the AGM approving the claim of the claimants and in fact he has deposed that the approval is granted as if it the absolute property of the G.Parthasarthy.
20. DW2 has further admitted whenever old FD is rolled over and new FD is made instructions with respect to the O.S.No.6660/2014 44 previous FD continues to operate in relation to the new FD. DW3 and DW4 are the witnesses of the defendant and siblings of the plaintiff who have deposed that upon the death of their father they approached the bank for liquidation of the fixed deposit in question and the original FD receipt was in the custody of the mother of DW3 and DW4 and all the legal heirs of G.Parthasarthy have received their share of amount from the bank except the plaintiff. They have further deposed that amount kept in the FD was not the exclusive property of the plaintiff and it belongs to the joint family. DW3 and DW4 upon confrontation of deposition of DW3 (who is PW1) in O.S. No. 25874/2010 have refrained from answering any questions. However both of them have admitted the pendency of O.S No. 25874/2010 filed by DW3 filed for the relief of partition of partition and separate possession in respect of immovable properties. It is worth to mention that when the deposition of DW3 in O.S. No. 25874/2010, which is produced at Ex.P29, were confronted to O.S.No.6660/2014 45 contradict the evidence of DW3 & DW4 they have refused to either admit the deposition or deny it. Therefore none of the admissions in the deposition of DW3 in O.S. No. 25874/2010 can be used as a piece of evidence . When DW3 has refrained from answering on any questions in regard to her previous deposition even before relevant portion is brought to her notice for the purpose of contradiction under Section 145 of the Indian Evidence Act, (Now Section 148 of the Bharatiya Sakshya Adhniyam, 2023) the reliance on the deposition of DW3 in the above referred suit would become otiose. Section 148 of the Bharatiya Sakshya Adhniyam, 2023 provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing. but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Therefore the deposition of DW3 in O.S. No. 25874/2010 is of no relevance and the evidence of O.S.No.6660/2014 46 PW1/DW3 in O.S. No.25874/2010 cannot be taken into consideration without bringing the previous statement of the witness to the notice of the witness as prior deposition can only be used in a subsequent or parallel proceedings for the purpose of contradiction only upon confrontation of the relevant portion. It is clearly apparent that DW3 and DW4 have not subjected themselves to the test of cross examination to avoid inconvenient questions and therefore the evidence lead through their examination in chief affidavits which is not tested through cross examination are unreliable and lacks probative value.
21. At this stage it is worthwhile to note that even the fixed receipt in question at Ex.D.10 bearing no. 64044985376 dtd 25.6.2009 was issued in the name of the plaintiff and his father with payment instructions as power of attorney holder it continues to carry the same instructions as provided at the time of opening the account. It is matter of record that the previous rolled over fixed O.S.No.6660/2014 47 deposit receipts starting from 1996 till 2009 produced at Ex.P 21 to 26 were issued in the name of the plaintiff and his father leading to the creation of the fixed deposit at Ex.D10. Similarly though the fixed deposit receipts at Ex.P23, P25 & 26 do not bear any details about the payment instructions with either or survivor clause as reflected on the deposit receipts at Ex.P21, 22 and 24 but it is a fact that the defendant has not disputed the assertion of the plaintiff that the fixed deposit receipt in question at Ex.D10 was the accumulated amount arising out of the previous fixed deposit receipts issued in the name of the plaintiff and his father with either or survivor clause therefore the non mentioning of the payment instruction on Ex.P23, P25 & P26 or the payment instructions as general power of attorney holder on Ex.D10 would not be fatal to the case of the plaintiff especially when DW2 has admitted whenever old FD is rolled over and new FD is made instructions with respect to the previous FD continues to operate in relation to the new FD.
O.S.No.6660/2014 48 It appears that the payment instructions at EX.D10 were erroneously denoted as power of attorney holder in the light of the requisition made by the G.Parthasarthy at Ex.P12 in stead of either or survivor clause. When there is no material pleading in the written statement disputing the source of funds of the fixed deposit in question at E.D10 or material cross examination directed to PW1 disputing the source of funds of the fixed deposit in question at Ex.D10, the fixed deposit at Ex.D10 cannot be treated as standalone fixed deposit especially in the absence of any corresponding document denoting the modification of the previous payment instructions by the alleged Kartha of the HUF namely G.Parthasarthy. If G.Parthasarthy wanted the fixed deposit at Ex.D10 to be treated as a HUF and wanted the defendant bank to indicate the general power of attorney as the beneficiary of the amount in relation to the fixed deposit at Ex.D10 then he would have certainly made a requisition to that effect at Ex.P12. In fact G.Pathasarthy has addressed the letter at EX.P12 to the defendant in O.S.No.6660/2014 49 dual capacity as one of the joint depositors and as the general power of attorney holder of the plaintiff and there by clearly signifies that he was in fact the power of attorney holder of the plaintiff in relation to the joint fixed deposit account.
22. It is further clearly evident from the records that pursuant to the requisition at Ex.P12 the Fixed deposit receipt issued on 12.3.2009 at Ex.P26 indicating the amount of deposit as 891094 with due date as 20.2.2011 with account bearing no. 64041662904 and with serial no. 216817 was canceled and once again a fresh Fixed deposit receipt at EX.D.10 was reissued due to erroneous deduction of the TDS. When the father of the plaintiff requested the bank to re issue a fresh Fixed deposit receipt in terms of EX.P12, the defendant bank acting on the said request and issued a fresh fixed deposit receipt on 25.6.2009 with serial no. 217167 and bearing no. 64044985376 with payment instructions as power of O.S.No.6660/2014 50 attorney holder at Ex.D10. It is abundantly evident from the records that the title of the fixed deposit receipt was subsequently categorized as HUF account (handwritten) at Ex.D10 when no such categorization was made in respect of the previous fixed deposit receipts.
23. DW2 during his cross examination has admitted that EX.P21 to 26 are all standing in the name of the plaintiff and his father and similarly the interest certificates at EX.P1 to 8 which are issued in the name of the plaintiff and his father. No suggestions are made to PW1 to establish the existence of the HUF account in relation to fixed deposit at Ex.D10 even though previous interest certificates and fixed deposit receipts were issued in the joint names of the plaintiff and his father. DW2 has positively asserted that the transfer credit slip at EX.P11 indicates the principal amount for the new fixed deposit dtd 25.6.2009. DW2 has further admitted that the source of the funds for the fixed deposit dtd 25.6.2009 are the proceeds of the fixed deposit O.S.No.6660/2014 51 bearing NO. 64041662904. Therefore when the source of funds for the fixed deposit receipt at EX.D10 had flown from the fixed deposit bearing NO. 64041662904 through the transfer credit slip at EX.P11 there is no occasion to treat the nature of the fixed deposit at EX.D10 distinctly from the previous fixed deposits when it is not the case of the defendant that fixed deposit in question was governed by distinct contract . None of the interest certificates produced by the plaintiff under EX.P1 to 8 including the reinvestment deposit pay in slip at EX.P10, Transfer credit at EX.P11 which are all issued in the name of the plaintiff and his father are challenged by the defendant during the cross examination of PW1. In fact the DW2 has deposed at the interest certificates are issued in the name of FD holders and the fixed deposit account details correspond to the application submitted for opening the fixed deposit account. DW2 has further deposed that the Bank Manager would make an endorsement on the fixed deposit receipt regarding cancellation or closure of fixed deposit and O.S.No.6660/2014 52 further in case of cancellation or closure of fixed deposit the fixed deposit receipt is scored off using a red ink . DW2 has categorically admitted that the customers do not have the option to fill the details of the fixed deposit receipt and it is always the bank staff who is required to perform the above duty. DW2 has positively deposed that in case of opening of any accounts for HUF a declaration by each of the member of the HUF and Pan number of the HUF are obtained . DW2 has further admitted that in case an account is opened in the name of the HUF the accounts are operated based on the instructions of the Kartha of the family. To the specific question as how would the bank would ascertain who is the Karta for the purpose of operating the HUF account, DW2 has answered that based on the declaration the Karta of the family would be ascertained. DW2 has admitted that all the details in the KYC forms are filled in by the Manager or the staff of the bank based on address proof, ID proof, PAN card and further he has categorically deposed that all the clerical staff including the Manager can operate the O.S.No.6660/2014 53 accounts of the customers . During the cross examination DW2 has also asserted that all the computer systems installed in the branch can furnish the details regarding the name of the person who has made changes in the accounts of the customers and at what time the changes were made and what form of changes were made. DW2 has further admitted that in case of fixed deposit which is in the name of two persons the bank can take instructions from either of them or from the surviving member in case of the death of the one of the despositors. DW2 has further deposed that when the surviving member is alive the bank cannot take instructions from any other person. DW2 has further admitted that the bank is not in possession of the application form or the KYC pertaining to the fixed deposit in question and similarly the bank is not in possession of the KYC forms and the declaration forms of all the members of the HUF . DW2 has admitted that prior to 2013 the bank was not in custody of any document to show that the fixed deposit in question is a HUF account.
O.S.No.6660/2014 54
24. DW2 has feigned ignorance on the following material aspects of the case viz., 1. the relationship between the plaintiff and Gopalswamy Iyengar, 2. The names of the children of Gopalswamy Iyengar, 3. date of death of Gopalswamy Iyengar, 4. details of the siblings of G.Parathsarthy, 5.the mode of acquisition of funds of the fixed deposit in question, 6. details of the joint family properties of G.Parthasarthy, etc.
25. However DW2 has admitted that he has no records to show that G.Parthasarthy is the Kartha of HUF and further he has stated that he has not produced the copy of the pan card referred in para no.6 of his evidence affidavit. However DW2 has admitted that under the Hindu Law upon the death of the Kartha the eldest son becomes the Kartha and the plaintiff is the eldest son of the family of G.Parthasarthy. In fact DW2 has deposed before the court that the bank could not have entertained the request for closure of the fixed deposit account without the O.S.No.6660/2014 55 instructions from the plaintiff who is the kartha of the family. Merely because the original fixed deposit in question was in the custody of mother of the plaintiff the bank would not get the right to disburse the funds to the legal heirs of the G.Parthsarthy. PW1 deposed during his cross examination that even after revocation of the general power of attorney he did not make any efforts to collect the fixed deposit receipts from his father as it was in the joint name. The suggestion of the defendant bank made to PW1 itself denotes that the loss of the original fixed deposit receipt which was intimated by the plaintiff to the defendant bank was acknowledged and despite the same the bank proceeded to disburse the funds in favour of the legal heirs of the deceased depositor without the consent of the plaintiff . No doubt the defendant has elicited that there was a partition between great grand father and grand father of the plaintiff and there was a partition between the grand father and father of the plaintiff from PW1 but such admissions would not aid the defendant to establish O.S.No.6660/2014 56 that the fixed deposit in question is an HUF account similarly the reliance placed by the placed by the plaintiff on Ex.P29 to P55 to contend that DW3 has admitted that her father and his brothers have affected partition in the joint family in respect of movable and immovable properties would not assist this court as this court is only concerned about the contractual obligation of the defendant bank.
26. Here it is appropriate to refer to the judgment referred by the counsel for the defendant in Anumati Vs. Punjab National Bank reported in (2004) 8 Supreme Court Cases 498 wherein, it was observed that the fixed deposit receipt is merely a written acknowledgment by the bank that it holds a certain sum to the use of its customers and that the bank is thus a debtor to the account-holders in respect of the amount deposited - a debt which is repayable by the bank to the account-holders with interest on expiry of an agreed period. An "either or survivor" clause in such an account means that the amount payable by the bank on maturity of fixed deposit may be paid to either of O.S.No.6660/2014 57 the accounter-holders by the bank in order to obtain a valid discharge."
27. At this stage it is appropriate to refer to Section 94 of the Bharatiya Sakshya Adhiniyam, 2023 provides that whenever there is a documentary evidence where the terms of the contract or a grant or any disposition of the property has been reduced in the form of a document, no evidence shall be given in proof of such contract, except the document itself. Meanwhile Section 95 of the Bharatiya Sakshya Adhiniyam, 2023 provides that no evidence on any oral agreement or statement shall be admitted between the parties to a contract where the terms of the contract have been reduced to the form of a document. Provided that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law, provided further that the existence of any separate oral O.S.No.6660/2014 58 agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved; provided also that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved; provided also that the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. In this background it is pertinent to note that the defendant who has taken up the contention that the fixed deposit in question though issued in the name of the plaintiff and his father is in essence a HUF account has not been able to prove any separate oral agreement denoting the categorization of the fixed deposit in question as a HUF account from the inception , in O.S.No.6660/2014 59 terms of the proviso of Section 95 of the Bharatiya Sakshya Adhiniyam, 2023, demonstrating the existence of a HUF account in the name of Gopalswaminger Sons or Gopalswamy Parathsarathi. Even though the statute provides that a legal binding written contract or document can be avoided if the existence of a separate oral agreement as to any matter on which a document is silent is proved or the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract is proved or the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, is proved the defendant have not been able to prove any of the aforesaid statutory defenses and consequently the terms of the fixed deposit in question clearly establish that the fixed deposit at Ex.D.10 was held jointly in the name of the plaintiff and his father with the father of the plaintiff being the general power of attorney holder of the plaintiff.
O.S.No.6660/2014 60
28. From the careful analysis of the aforesaid oral and documentary evidence it is evident that the defendant has not only failed to take up necessary pleading with regard to the HUF account but failed to lead any cogent and reliable evidence to establish its de fense. It is clearly evident from the records that the fixed deposit at Ex.D.10 was treated as a HUF account only at the subsequent date by linking the fixed deposit account with pan number of Goaplswamiynegar Sons by the defendant bank when all the while the previous fixed deposit were treated as a joint account of the plaintiff and his father with either or survivor clause. An HUF account by its very nature is operated by the kartha on behalf of the family and cannot confer independent or alternative rights upon the individual members to receive the proceeds by survivor-ship. The presence of an either or survivor clause itself conclusively establishes that the deposit was not treated as HUF property by the bank at the time of entering into the contract. Having accepted the deposit under a specific O.S.No.6660/2014 61 contractual mandate the defendant is estopped from resiling and recharacterising the nature of the account to the prejudice of the plaintiff. The bank cannot be permitted to approbate and rebrobate having treated the account as a joint deposit at the time of acceptance, it cannot now be contended that it was an HUF to justify its wrongful disbursement.
29. In Canara Bank Overseas Branch vs Archean Industries Private Ltd, Civil Appeal No. CIVIL APPEAL NO. 13861 of 2024, the Apex Court while dealing with an appeal arising out of a suit instituted by a ship repair company based in the United Arab Emirates which had carried out extensive repair works on the vessel Master Panos during the period January to March 1998 at the request of its owner and operator/manager namely M/s. Royal Swan Navigation Co. Ltd. and M/s. Pevson Shipping Company S.A., respectively. Meanwhile the Defendant No.1 was a company engaged in the export of granite and had chartered the vessel Master Panos for shipment of O.S.No.6660/2014 62 granite from Chennai to Newark in the United States of America, in which the Defendant No. 2 acted as the banker of Defendant No. 1 and was entrusted with the remittance of the amount in question. Following negotiations between the plaintiff and the vessel owner, a Memorandum of Agreement dated 18.03.1998 and under the said settlement, the amount was to be paid from various sources, including a sum of US $ 100,000 which was to be remitted directly to the plaintiff through the owner Royal Swan. In the meantime, Defendant No.1 had entered into a Charter Party Agreement dated 09.03.1998 with the vessel owner for shipment of approximately 2,500 metric tonnes of granite from Chennai to Newark in the United States of America. Under the said arrangement, it was agreed that out of the freight payable by Defendant No.1 to the vessel owner, a sum of US $ 100,000 would be paid directly by the owner to the plaintiff in partial discharge of the vessel owner's liability towards repair charges. The vessel owner by communication dated 21.04.1998 addressed to O.S.No.6660/2014 63 Defendant No.1, issued instructions to Defendant No.1 that the said sum be remitted directly to the bank account of the plaintiff maintained with Standard Chartered Bank, Deira Branch, Dubai. Subsequently the Defendant No.1 addressed a letter to its banker, Defendant No. 2, namely Canara Bank, Overseas Branch, Chennai, instructing it to remit US $ 100,000 by telegraphic transfer to the account of the plaintiff. However, instead of remitting the amount to the account of the plaintiff as instructed, Defendant No. 2/Bank erroneously transferred the amount to the account of the vessel owner maintained with a bank in Baltimore, United States of America. Under the aforesaid circumstances the Apex Court held that the Bank was bound to act in accordance with the instructions issued by Defendant No. 1. In any event, the role of the Bank was confined to honouring the instructions of its customer, namely Defendant No. 1. Even in the absence of any RBI approval, the Bank ought to have withheld the amount and awaited further instructions from its customer or sought O.S.No.6660/2014 64 the requisite clarification and concluded that the act of the Bank in transferring the funds to the owner of the vessel, who had clearly instructed the Defendant No. 1 to remit the money to the plaintiff, cannot be sustained. Similarly in the aforesaid case, the bank could not have violated the madate of the joint account fixed deposit bearing either or survivor instruction clause as in any event the bank could not have disbursed the funds to the legal heirs of G.Parthasarthy without the consent and approval of the plaintiff and therefore the bank is liable to answer the claim of the plaintiff.
30. The learned counsel for the plaintiff has relied upon the judgment in the case of Guran Ditta Vs. Ram Ditta - ILR 55 CAL 944, wherein the judicial Committee has held that the deposit made by a Hindu in a bank in the joint names of himself and his wife, and on the terms that it is payable to either or the survivor, does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary O.S.No.6660/2014 65 intention. The same view was expressed in the decision of Pandit Shambhu Nath Shivpuri Vs. Pandit Pushkar Nath. ILR 71 IA 197 . Reference is made to the judgment in Indranarayan Vs. Roop Narayan reported in (1971) 2 SCC 438, wherein it is held that a deposit made by a Hindu of his money in the joint names of himself and his wife or any other person, on the terms that it is payable to either or survivor does not on his death constitute a gift by him to his wife in the absence of any contrary intention. Similarly referring to the judgment in Padmanabhan Bhavani Vs. Govindan Bhargavi 1974 SCC Online Ker 48 it is contended that the survivor of a Fixed Deposit receipt will not be entitled to realize the amount exclusively for herself. The Counsel for the plaintiff has further relied upon the guidelines issued by the RBI on 09.06.2005, wherein it is held that in case of deposit accounts where the deposit had utilized the nomination facility and made a valid nomination or where the account was opened with the survivor-ship clause ("either or survivor" or "anyone or O.S.No.6660/2014 66 survivor' or "former or survivor" or "latter or survivor"), the payment of the balance in the deposit account to the survivor / nominee of a deposit account holder represents a valid discharge of the bank's liability provided - (1) the bank has exercised due case and caution in establishing the identity of the survivors / nominee and the fact of death of the account holder, through appropriate evidence; (2) There is no order from the competent court restraining the bank from making the payment from the account of the ; and (3) it has been made clear to the survivors / nominee that he would be receiving the payment from the bank as a trustee of the legal heirs of the depositor i.e., such payment to him shall not affect the right or claim which any person may have against the survivors / nominee to whom the payment is made. According to the learned counsel for the plaintiff, in case of death of one of the depositors, payment made to the surviving depositor should be subject to the foregoing conditions, which would constitute a full discharge of the bank's liability and in O.S.No.6660/2014 67 such cases the bank need not even insist for production of Succession Certificate, letter of administration or probate or obtain any bond of indemnity or surety from the survivor / nominee, irrespective of the amount standing to the credit of the account holder.
31. On the same analogy the counsel for the defendant has also relied upon the case of Bharathi Phulki and Another Vs. Kamala Bala Das and Ors. in 2017 SCC Online Cal 16552, wherein it is held that a nominee can only receive the money deposited in the bank but cannot claim to be an absolute owner. The money deposited with the original account should be distributed to the claimants in accordance with the Rules of Succession, although under the provision of Banking Regulation Act, the nominee, after the death of the testator, may have exclusive right to receive the amount lying in the account. Similarly reference is made to the judgment in Ram Krishna Puri Vs Gurpyari Devi and Ors. 2019 SCC Online ALL 5146, wherein it is held that the mandate "Either or Survivor" or "Former or O.S.No.6660/2014 68 Survivor" with regard to mode of payment deals only with valid discharge of Banks and has nothing to do with the law of succession or right of successors/legal heirs/legatee of deceased-depositor. In such case, if the Bank makes full payment of amount due to nominee or survivor, it gets a valid discharge of dues and has no obligation to seek discharge from other legal heirs of deceased, before making such payment. In this context reference is also made to the judgment of the Madras High Court in K. Chakrapani and Ors. Vs. N. Brindha and Ors. 2023 SCC Online MAD 8171 wherein the Madras High Court has referred to Tannan'sBanking Law and Practice in India - 18 th Edition Page 195 and has referred to the meaning of "either or survivor", wherein it is held that "Banks have now accepted the view that in an account, where the operation is by "Either or Survivor", the survivor is the only person who is entitled to the balance thereof after the death of one of the account holders. This practice is based on the principle that the terms of operation form part of contract of O.S.No.6660/2014 69 deposit."
32. Meanwhile the learned counsel for the defendant has relied upon the decision in Adiveppa and Ors. Vs. Bhimappa and another (2017) 9 SCC 586 wherein it is held that there exists a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family and the burden therefore, lies on the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self acquired property but the said judgment is not applicable to the facts of the case as this court is not deciding a partition suit or a declaration suit.
33. From the aforesaid judgments relied upon by the plaintiff and defendant on the law governing the bank accounts with either or survivor ship clause it is settled that it is the survivor who is the only person who is O.S.No.6660/2014 70 entitled to the balance thereof after the death of one of the account holders and this practice is based on the principle that the terms of operation form part of contract of deposit and further if the Bank makes full payment of amount due to nominee or survivor, it gets a valid discharge of dues and has no obligation to seek discharge from other legal heirs of deceased, before making such payment. The either or survivor clause is neither ornamental nor superfluous but is a definitive mandate governing disbursement. The contention of the bank that it acted to safeguard the interest of the legal heirs cannot be countenanced . By no stretch of imagination can the bank override the binding contractual stipulation on the specious plea of equity. Such an act would trike at the very root of commercial certainty. If the banks are permitted to ignore the mandate at will then the sanctity of the financial instruments would be erroded. The act of the bank suffers from patent illegality and non adherence to the contractual obligations. The plaintiff being the surviving depositor had an O.S.No.6660/2014 71 unfettered contractual right to receive the proceeds of the fixed deposit. The denial of such right and wrongful disbursement to third parties cannot defeat the entitlement of the plaintiff. Therefore even in the above case what unmistakably emerges is that the defendant has violated the contractual mandate by disbursing the funds to the legal heirs of the deceased depositor and in the consequence there is no valid discharge of the contract. It is needless to mention that if the bank is directed to pay the proceeds of the fixed deposit to the plaintiff then certainly the bank would be entitlement to enforce the indemnity bond and claim reimbursement from the legal heirs of Parthasarthy. The defendant having pleaded that the fixed deposit account is a HUF account has utterly failed to establish the same. Section 106 of the Bharatiya Sakshya Adhiniyam, 2023 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on O.S.No.6660/2014 72 any particular person. In the light of the above provision the defendant having pleaded a particular fact has failed to discharge the burden, while the plaintiff has established by preponderance of probability that he alone is entitled to receive the proceeds of the fixed deposit at EX.D10 under Section 104 and 105 Bharatiya Sakshya Adhiniyam, 2023.
34. Now the next question is to what amount is the plaintiff entitled to from the defendant bank? The plaintiff has claimed that the maturity value of Fixed deposit as on the date of the suit was Rs. 13,89,502/- and further the defendant is liable to pay the aforesaid amount with interest @18% per month from 16.6.2014 which is the maturity date of the Fixed deposit amounts to Rs. 18,89,723/- The fact that maturity value of the fixed deposit would quantify to a sum of 13,89,502/- is not disputed by the defendant either by way of pleadings or cross examination . DW2 has admitted that there was an auto renewal of the fixed deposit from 20.12.2011 to 16.6.2014 and he does not have any records to show that O.S.No.6660/2014 73 there was an renewal of the fixed deposit at the instance of the members of the family of the plaintiff. Therefore, undoubtedly the plaintiff is entitled for a sum of 13,89,502/ towards the proceeds of the fixed deposit.
35. The plaintiff has sought presuit interest @ 18% per month from 16.6.2014 till the date of suit i.e. 30.8.2014 but the plaintiff has not produced any document/ agreement on the basis of which the defendant is liable to pay interest @ 18% p.m. towards presuit interest as sought in the prayer column.
36. At this stage it is relevant to refer to Section 3 of the Interest Act, 1978.
Section 3 -Power of court to allow interest.--(1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the following period, that is to say,--
(a) if the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the O.S.No.6660/2014 74 date when the debt is payable to the date of institution of the proceedings;
(b) if the proceedings do not relate to any such debt, then, from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim to the person liable that interest will be claimed, to the date of institution of the proceedings:
Provided that where the amount of the debt or damages has been repaid before the institution of the proceedings, interest shall not be allowed under this section for the period after such repayment.
From the above provision it is pellucid that the parties are entitled to claim presuit interest in the event of existence of agreement or written notice subject to the discretion of the court. In the above case even though the legal notice at Ex. .P15 to claim pre suit interest under Section 3 1(b) of the Interest Act, 1978, but it is pertinent to note that the award of presuit interest either under Section 3(1)(a) or 3(1)(b) of the Interest Act, 1978 is ultimately subject to the discretion of the court . In the present case the plaintiff had admittedly issued a letter dtd 28.9.2011 to the defendant informing the defendant about the death of the plaintiff's father by specifically instructing the bank to close the deposit and issue fresh O.S.No.6660/2014 75 fixed deposit in the name of plaintiff alone but according to the plaintiff the defendant utterly failed to act upon his instructions. In spite of having issued the above letter the plaintiff failed to follow up his claim only to realise on 10.7.2014 that the defendant had preclosed the account without any instructions from the plaintiff by disbursing the funds in favour of the siblings of the plaintiff. There is absolutely no explanation offered by the plaintiff for not approaching the bank during the interregnum. When the plaintiff himself had slept over his rights from 2011 to 10.7.2014 without asserting any rights on the fixed deposit or without seeking renewal of the fixed deposit he cannot be held entitled to the presuit interest under the Interest Act therefore in this background the claim of presuit interest is rejected.
37. In so far as the claim for future interest on the suit claim is considered. It is apt to refer to Section 34 CPC:
Section 34 of C.P.C., which reads as under:
O.S.No.6660/2014 76 "34. INTEREST: (1) Where and insofar as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:
Explanation I. - *** Explanation II. - For the purposes of this Section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability."
In the case of M/S. MEENAKSHI
PHARMA DISTRIBUTORS, BENGALURU Vs.
STATE OF KARNATAKA AND OTHERS
reported in 1999 (2) KLJ 164, it has been held that transaction is to be held commercial only if it is connected with industry, trade or business of the judgment debtor under money decree and not of the decree holder.
In the light of the above statutory principles and legal precedents, it can be deduced that the transaction between the plaintiff and the defendant is a commercial O.S.No.6660/2014 77 transaction connected with the banking business of the defendant who is incurring the liability. Therefore, it is just and necessary to impose interest at the rate of 8 % interest per annum from the date of suit till its realization. In all the plaintiff is entitled to a sum of Rs.13,89,502/- with future interest @ 8% p.a. from the date of suit till its realization.
38. In so far as issue no.3 is concerned regard it is however pertinent to note that the factum of the disbursal of the funds of the fixed deposit in favour of the legal heirs of G.Parthasarthy by preclosing the fixed deposit account on 16.11.2013 by the defendant is not at all challenged. The contentions taken by the defendant in the written statement in regard to the disbursal of the amount of Rs, 2,17721 to each of the legal heirs of Parthasarthy while keeping the share of the plaintiff amounting to Rs. 2, 17721 /- in trust are not at all disputed by the plaintiff by filing additional pleadings to the written statement of the defendant. However according to the plaintiff the defendant O.S.No.6660/2014 78 has violated the contractual terms of the fixed deposit by wrongfully entertaining the claim of the legal heirs without the knowledge of the plaintiff and in collusion with the claimants by committing misappropriation and criminal breach of trust. The question whether the defendant has fraudulently disbursed the finds to the claimants will be dealt separately under issue no.2 but for now the materials on record manifest that the disbursal of the fixed deposit funds to the legal heirs of G.Parthasarthi is not at all disputed by the plaintiff. Accordingly the plaintiff has proved that the after the death of his father G.Parthasarthy he alone is entitled to receive the fixed deposit amount from the defendant bank while the defendant has failed to prove that the fixed deposit account held in the name of the plaintiff and his father is a HUF account. However the defendant has proved that upon the death of G.Parthasarthy the legal heirs of Parthasarthy have sought to pre close the fixed deposit account 16.11.2013 and accordingly the defendant has disbursed a sum of Rs. 2, O.S.No.6660/2014 79 17, 721/- to each of the legal heirs of G.Parthasarthy and the share of the plaintiff amounting to Rs. 2, 17721 /- is kept in trust. However the findings on issue no.3 would not affect the findings on issue no.1 & additional issue no.1 as the plaintiff has proved that disbursement of the funds by the defendant was violative of the contractual mandate which ultimately dis not constitute a valid discharge. In the light of the same issue No.1 & 3 are answered in the Affirmative and additional issue No.1 is answered in the Negative.
[
39. ISSUE NO.2 :- It is the case of the plaintiff that the defendant has preclosed the fixed deposit without any instructions from him and fraudulently disbursed the amount to certain persons in active collusion and conspiracy of them. The defendant in the written statement has denied the allegations made against it. In this regard it is pertinent to note that the plaintiff in the plaint has vaguely asserted that the defendant bank has entertained the claim of certain persons who are not in O.S.No.6660/2014 80 good terms with the plaintiff behind his back by fraudulently getting the claim cleared and thereby it has committed misappropriation and criminal breach of trust. Order VI Rule 4. Particulars to be given where necessary.-- In all cases in which the party pleading relies on any misrepresentation, fraud, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. In this background the element of fraud, breach of trust and wilful default alleged in the plaint must state those facts which together taken as a whole, if proved, would show and establish the same . Pleading of fraud , misappropriation and breach of trust should be conspicuous and palpable, and should not be predicated on mere suspicion and conjecture.
40. At this stage it is appropriate to refer to Section 17 of the Indian Contract Act 17.
O.S.No.6660/2014 81 Section 17: 'Fraud' defined.--
'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent', with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2)the active concealment of a fact by one having knowledge or belief of the fact;(3)a promise made without any intention of performing it; (4)any other act fitted to deceive;(5)any such act or omission as the law specially declares to be fraudulent.
From the above provision it is evident that Section 17 of the Indian Contract Act, 1872, involves intentional deception including a false representation made knowingly or without belief in its truth with the intention of inducing another party to act upon it. The essential ingredient of fraud is dishonest intention or deception. There is no material pleading to denote the manner in which fraud, criminal breach of trust or misappropriation was affected by the officials of the bank with an intent to deceive the plaintiff.
O.S.No.6660/2014 82
41. It is well established that the allegations of the allegations of fraud , coercion. Breach of trust, etc., being intangible and abstract facts, heavy duty is cast upon the plaintiff to plead and prove the same by cogent evidence and attending circumstances the factum of fraud and breach of trust. In this context it is appropriate to refer to the judgment of the Apex Court in the case of C.S.Ramaswamy v. V.K.Senthil in Civil Appeal No. 500/2022 dtd. 30.9.2022, has held that mere using the word fraud as opposed to making specific averments was not sufficient. In the present case the plaintiff except using the word fraud, misappropriation and breach of trust has not at all indicated how the officials of the defendant bank have acted in collusion with a dishonest intention to defraud the plaintiff by committing breach of trust and misappropriation. Mere initiation of criminal proceedings against the defendant bank and the siblings of the plaintiff in PCR NO. 15450/2014 is not sufficient to hold that the defendant bank has fraudulently disbursed the funds to O.S.No.6660/2014 83 the siblings of the plaintiff as the plaintiff is independently required to discharge his burden in the present proceedings.
42. A breach may amount to fraud only if its shown that the party had no intention to perform the contract from the beginning and made promises only to deceive or induce the other party. Mere breach of contract cannot give rise to action for fraud, breach of trust, misappropriation , etc. It is not in dispute that upon the death of one of the joint depositors, the contractual obligation of the bank arising out of the mandate governing the account is to disburse the amount in favour of the surviving depositor . The bank is not required to adjudicate inter-se disputes between the legal heirs of the deceased depositor and the surviving account holder. In the case on hand the defendant bank has admittedly disbursed the amount in favour of the legal heirs of the deceased depositor without obtaining the consent of the plaintiff who is the surviving depositor . In O.S.No.6660/2014 84 fact there is nothing on record to demonstrate that the defendant had written a letter to the plaintiff to collect his share of the fixed deposit along with his siblings. No written correspondence with postal acknowledgment is confronted to the plaintiff to indiacte that the defendant had taken steps to call upon the plaintiff to collect his share of the fixed deposit. Such action of the bank is clearly in derogation of the contractual mandate governing the account and therefore amounts of a breach of contract. The contention that such disbursal constitutes fraud within the meaning of Section 17 of the Indian Contract Act, 1872 cannot be accepted in the absence of specific pleadings and proof of intentional deception or dishonest inducement on the part of the bank. Fraud as defined under the law requires a deliberate act of deception with an intent to cause of injury, which is not made out merely on account of an erroneous or even wrongful disbursal. The distinction between the a mere breach of contract and a fraudulent act has been consistently recognized by the courts in India. In O.S.No.6660/2014 85 Hridaya Ranjan Prasad Verma v. State of Bihar, 2004 SCC 168 it is held that mere breach of contract does not give rise to an allegation of fraud or cheating unless fraudulent intention is shown at the inception . A reading of the plaint averments in its entireity and accepting them to be true, the ingredients of intentional deception on part of the bank right from the inception has neither been pleaded nor indirectly suggested. Therefore even though the plaintiff has proved that the defendant have committed a breach of contract in disbursing the funds of the fixed deposit without the instructions from the plaintiff but he has failed to prove that the bank has acted fraudulently in disbursing the funds in active collusion and conspiracy of them. Thus, Issue No.2 is answered as Partly Affirmatively.
43. ISSUE NO.4 :- It is the contention of the defendant that the suit is bad for non joinder of necessary parties as the legal heirs of G. Parthasarthy who have received their respective shares from the defendant bank by seeking pre O.S.No.6660/2014 86 closure of the fixed deposit account should have been arrayed as the parties to the suit. It is pertinent to note that the legal heirs of the G.Parthasarthy who have received their respective shares from the proceeds of the fixed deposit account are not parties to the contract of the the joint fixed deposit between the plaintiff, his father and the defendant in relation to the fixed deposit in question at Ex.D.10 nor are they the beneficiaries of the fixed deposit by virtue of the any instructions governing the aforesaid contract, the question of impleading them would not arise. When the scope of issue no.1 is limited to decide the entitlement of the plaintiff to receive the proceeds of the fixed deposit from the defendant bank and the nature of the suit is fundamentally for the enforcement for the contractual obligations arising out of the fixed deposit then the legal heirs of the G Parthasarthy would not become the necessary party to the suit as no relief is sought against them. In Kasturi vs., Uyyamperumal and others reported in (2005) 6 SCC 733, the Hon'ble Apex Court observed that "it O.S.No.6660/2014 87 is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings (2) no effective decree can be passed in theabsence of such party." Therefore the above test does not indicate that the addition of parties should not be made merely to avoid multiplicity of suits if their presence is not necessary for determining the real question. The said power can be exercised on either of the two grounds: (a) Such person ought to have been joined, either as a plaintiff or as a defendant, but is not so joined; or; (b) Without his presence, the question involved in the suit cannot be decided finally and effectively. In the present case neither the plaintiff has sought any relief against the legal heirs of the Parthasarthy nor it is the claim of the plaintiff s that no effective decree can be passed in their absence. Consequently the legal heirs of Parthasarthy who have sought disbursal of the proceeds of the fixed deposit from O.S.No.6660/2014 88 the defendant bank by executing indemnity bond cannot become necessary party as it is for the bank to justify its defense of disbursement of the funds. In fact the application filed by the defendant under I.A.No. 2/2019 in the present case by the defendant to implead the legal heirs of G.Parthasarthy who claim to be the members of the HUF has already been rejected on 8.1.2021. The said order has attained finality and the defendant has not challenged the said order. In view of the same Issue No.4 is answered in the Negative.
[
44. ISSUE NO.5 : In the light of the findings recorded on Issue No.1 to 4 and Additional issue No.1, the plaintiff is partly entitled to the reliefs sought. Accordingly, Issue No.4 is answered as partly affirmative and I proceed to pass the following order:
ORDER The suit of the plaintiff is decreed in part with costs.
O.S.No.6660/2014 89 The defendant is liable to pay to the plaintiff a sum of Rs.13,89,502/- with future interest @ 8% p.a. from the date of suit till its realization.
[ Draw decree accordingly.
(Dictated to the Senior Shirestedar (Stenographer Grade-I), transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 27th day of March 2026.
(SUMANGALA CHAKALABBI) XLII Addl. City Civil and Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 - P. Mukundan - 18.01.2016
b) Defendant's side:
D.W.1 - M.Ganesh Prasad - 07.08.2018 D.W.2 - Manoj Kumar Behera D.W.3 - Smt. Radhika Vasudevan D.W.4 - Smt. Sangeetha Ravikanth II. List of documents exhibited on behalf of :
O.S.No.6660/2014 90
a) Plaintiff's side:
Ex.P.1 : Interest Certificate for the period from 01.04.1998 to 31.03.1999 Ex.P.2 : Interest Certificate for the period from 01.04.1999 to 31.03.2000 Ex.P.3 : Interest Certificate for the period from 01.04.2000 to 31.03.2001 Ex.P.4 : Interest Certificate for the period from 01.04.2001 to 31.03.2002 Ex.P.5 : Interest Certificate for the period from 01.04.2002 to 31.03.2003 Ex.P.6 : Interest Certificate for the period from 01.04.2003 to 31.03.2004 Ex.P.7 : Interest Certificate for the period from 01.04.2004 to 31.03.2005 Ex.P.8 : Interest Certificate for the period from 01.04.2008 to 31.03.2009 Ex.P.9 : Reply Notice dated 08.08.2014 Ex.P.10 : Certified copy of the reinvestment deposit payslip dated 21.02.2007 Ex.P.11 : Certified copy of the transfer credit slip dated 25.06.2009 Ex.P.12 : Certified copy of the letter dated 24.06.2009 Ex.P.13 : Letter dated 28.09.2011 O.S.No.6660/2014 91 Ex.P.14 : Covering letter dated 12.10.2014 issued by the defendant to the plaintiff Ex.P.15 : Legal notice dated 02.08.2014 Ex.P.16 : Postal receipts Exs.P.17 : Postal Acknowledgment to P.19 Ex.P.20 : Postal track report Exs.P.21 : Xerox copies of Reinvestment Deposit Receipts to P.26 Ex.P.27 : Photograph Ex.P.28 : Certified copy of List of the documents together marked Ex.P. 29 Certified copy of deposition of PW -1 in OS 25874/2010 Ex.P.30 Certified copy of I.A. dated 17.08.2011 filed under Order 22 Rule 4 of CPC in OS 25874/2010 Ex.P.31 Certified copy of Will executed G. Parthasarathy Ex.P.32 Certified copy of claim format Ex.P.33 Certified copy of letter of Indemnity Ex.P.34 Certified copy of affidavit O.S.No.6660/2014 92 Exs.P.5 Two Certified copies of surety report and 36 Ex.P.37 Certified copy of cancel FD receipt Ex.P.38 Certified copy of letter dated 24.06.2009 Ex.P.39 Certified copy of transfer credit Ex.P.40 Certified copy of Form No. 16A Exs.P.41 Certified copy of certificates both dated and 42 31.03.2012 Ex.P.43 Certificate copy of memorandum of agreement dated 16.02.1960 Ex.P.44 Certified copy of letter 24.07.1986 Exs.P.45 Notarized copy of sketch along with and 45(a) certified copy of the same Exs.P.46 Notarized copy of letter dated 28.03.1987 and 46(a) along with certified copy of the same Ex.P.47 Certified copy of notice dated 08.09.2010 Ex.P.48 Certified copy of register of assessment of lands and buildings from 1982-1983 to 1986-1987 Ex.P.49 Certified copy of register of assessment of lands and buildings from 1982-1983 to 1986-1987 O.S.No.6660/2014 93 Ex.P.50 Certified copy of Tax paid receipt Ex.P.51 Certified copy of IT returns of Parthasarathy for the year 2009-2010 with annexures Ex.P.52 Certified copy of IT returns of Parthasarathy for the year 2010-2011 with annexures Ex.P.53 Certified copy of acknowledgment issued by IT department in favour of K.S. Gopalswamy and sons HUF Ex.P.54 Certified copy of memorandum of agreement dated 11.06.1986 Ex.P.55 Certified copy of order in PCR No. 15450/2014 III. List of documents exhibited on behalf of :
b) Defendant's side :
Ex.D.1 : Certified copy of Reinvestment Deposit Receipt of State Bank of Mysore Ex.D.2 : Letter of authorization Exs.D.3 : Annual Tax Statement under Section 203AA of to D.7 Income Tax Act, 1961 Ex.D.8 : Certificate under Section 65B of the Indian Evidence Act O.S.No.6660/2014 94 Ex.D.9 : Authorization letter issued by Regional Manager dated 03.07.2023 Ex.D.10 : Certified copy of canceled term deposit receipts dated 25.06.2009 Ex.D.11 : Account Statement of the plaintiff from 25.06.2009 to 16.11.2023 Ex.D.12 : Form 16A Ex.D.13 : Copy of interest certificate dated 31.03.2012 Ex.D.14 : Copy of interest certificate dated 31.03.2013 Ex.D.15 : Certified copy of application filed under Section 91 of CR.P.C in PCR No.15450/2014 Ex.D.16 : Certified copy of screen shot of details of account of the plaintiff Ex.D.17 : Certified copy of amended plaint in O.S No.25874/2010 Ex.D.18 : Certified copy of written-statement in O.S 25874/2010 Ex.D.19 : Statement of Account bearing No.640252510650 Ex.D.20 : Certified copy of claim format Ex.D.21 : Certified copy of letter of Indemnity Ex.D.22 : Statement of Account of Gopalaswamy Parthasarathy HUF from 21.02.2009 to 25.06.2009 O.S.No.6660/2014 95 Ex.D.23 : Statement of Account of Gopalaswamy Parthasarathy HUF from 21.02.2007 to 02.12.2009 Ex.D.24 : Statement of Account of Gopalaswamy Parthasarathy HUF from 16.01.2005 to 21.02.2007 Ex.D.25 : Letter addressed by the defendant to plaintiff dated 10.07.2014 Ex.D.26 : Certificate under Section 2A and 2A(c) of Bankers Book and evidence Act (SUMANGALA CHAKALABBI) XLII Addl. City Civil and Sessions Judge, Bengaluru.