State Consumer Disputes Redressal Commission
Bhavesh Tribhovan Voralia vs Union Bank Of India on 26 July, 2023
Details DD MM Year
Date of Judgment 26 07 2023
Date of filing 31 03 2016
Duration 26 03 07
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT NO.4
Complaint No. 38 of 2016
BHAVESH TRIBHUVAN VORALIYA.
(Address: 1-Ashfields, the drive, Peterborough, PE3 6DJ, Cambridgeshire,
United Kingdom)
Local Address: C/o. Naresh M. Sinroja Advocate
901- Shilalekh Tower, Nr. Panchayatnagar Chowk,
University road, Rajkot
Pin:360005.
...COMPLAINANT.
VERSUS
MANAGER, UNION BANK OF INDIA
Rajkot Main Branch, Para Bazar,
M. G. Road,
Rajkot- 360 001.
...OPPONENTS
BEFORE: HON'BLE Mr. R N MEHTA, PRESIDING MEMBER.
HON'BLE Ms. P. R. SHAH MEMBER.
APPERANCE: Mr. N. M. Sinroja, Ld. Advocate for complainant.
Mr. H. M. Shroff, Ld. Advocate for opponent.
(Order by Mr. R. N. MEHTA, Presiding Member.) [1]. This complaint was filed by Mr. Bhavesh Tribhovan Voraliya, a Non-
Resident Indian and permanently residing in U. K. at the address given in the cause title. The complainant had been to India for short while and during his camping, he has filed this complaint and Rnm cc382016 Page 1 of 10 authorized his maternal uncle Mr. Naresh M. Sinroja as power of attorney holder and empowered him to do all necessary things on his behalf for his complaint. It is say of the complainant that the grandfather of the complainant late Mr. Lavjibhai Rudabhai Voralia was residing in Kisumu (East Africa) and had properties there and also had properties in India at Rajkot and Jamnagar. It is say of the complainant that late Mr. Lavjibhai Rudabhai Voraliya prepared his will in writing on 28.06.1996 at Jamnagar, and thereafter, he died at Jamnagar on 06.07.1996. Since deceased had permanent residence at Kisumu in East Africa, an application for Probate/Succession certificate was given in the High Court of Kenya (East Africa) which was approved by that High Court in Succession Cause No.HC/1558/1997. On that basis, the High Court of Kenya issued Succession Certificate on 13.10.1997 in favour of the Tribhovanbhai as the Executor of the will. The copy of the said Probate/Succession Certificate is produced on record. The complainant stats that deceased Lavajibhai had saving bank account No. 10086 with the opponent bank at Rajkot, and the amount of Rs. 22,00,000/- was lying into his credit in the said bank account. The complainant by application dated 23.12.2014 requested the opponent bank to substitute name of account holder and to enter his name or allow him to operate the above said bank account as an Executor based on the Succession Certificate. During one of the visits to India, the complainant personally met the Manager of Bank and also submitted another application dated 16.02.2015. The complainant stats that despite submission of all necessary documents to the Manager of the bank, he did nothing and therefore he also submitted "Apostilled Document" issued by the United Kingdom Government. However, the bank even then turn down his request by letter dated 07.03.2015. The complainant stats that he has produced on record the correspondence exchanged between the parties. As the power of attorney was in the name of Naresh Sinroja, the bank had addressed the letter in the name of Naresh Sinroja. As such the main contention of the opponent Rnm cc382016 Page 2 of 10 Bank was to submit a Probate Certificate from the Indian Courts and under the provision of Indian Succession Act.
[2]. Being aggrieved by the said rejection, the complainant had filed the complaint before the Banking Ombudsman, however, the Banking Ombudsman also dismissed his complaint without hearing the complainant. It is in these circumstances; the complainant has alleged that the bank has unilaterally decided not to allow the complainant to utilize the funds lying in the credit of deceased Lavjibhai though he had legitimate rights as per the Succession Certificate issued by the Kenya High Court. The complainant also further submitted that India and United Kingdom both are the members of the Hague Apostille Convention of 1961 abolishing the requirement of further legalization of foreign public documents that are already Apostilled. Despite this the bank has rejected the complainant‟s request & the complainant has therefore, prayed for direction to the bank to remove the deficiency in service and allow the complainant either to operate the bank account of deceased Lavjibhai or to allow him to withdraw the fund in A/c. The complainant has also prayed for cost of litigation and appropriate compensation for denial of his right.
[3]. When the complaint was presented before this Commission, this Commission ordered to issue notice to the other side which was duly served upon and the opponent bank had file written statement on 30.08.2017. In the said reply it is contended that the complainant has not come with clean hands and with clear intention. It is further, contended that the opponent bank has acted in accordance with law and in reasonable & proper manner. The bank gave valid reasons for not allowing the complainant to operate the bank account of the deceased Mr. Lavjibhai. The bank has raised preliminary objection with regard to the maintainability of the complaint under the provisions of The Consumer Protection Act. According to the Bank, the complainant is not a "Consumer" within the meaning and scope of Rnm cc382016 Page 3 of 10 the definition given under the provisions of the Consumer Protection Act. It is contended that there is no "Privity of Contract" between the complainant and opponent for rendering of any services. The bank also had contended that in the said will (stated to have been executed by deceased Mr. Lavajibhai), bank account No. 10086 is not mentioned anywhere though it is in the name of deceased and therefore, the bank cannot entertain the request of the complainant to substitute his name as canvassed by complainant. It is contended that succession certificate issued by the High Court of Kenya cannot be said to be legal and valid documents in India, since it is not issued as per provisions and rules contemplated under the Indian Succession Act and also the same is not issued by the Court of Competent jurisdiction in India. The bank has stated that complainant ought to have taken out Succession Certificate from Indian Court having legal, valid, and competent jurisdiction for the same under the Indian Act. Apart from above technical objections, it is also further contended in the reply that in the said will, the deceased Mr. Lavajibhai had appointed Mr. Tribhovanbhai and Mr. Bhagvanjibhai Kalubhai as trustee for administration of his properties. Thereafter, Bhagvanjibhai Kalubhai had executed Special Power of Attorney in favour of Tribhovanbhai for the limited purpose of conducting process of apostilled letter of administration, and on that basis, Probate Certificate was granted by the High Court of Kenya (East Africa). It is contended that even Mr. Tribhovanbhai has expired and therefore, the special power of attorney that was executed in his favour would be cease to effect after his death. Thereafter, complainant stated to have applied for Probate certificate amendment since arrangement of properties were not completed and he got it done but the fact remains that deceased Lavjibhai had never appointed complainant as administrator. No doubt, the complainant has got "No Objection" or "authority" from another administrator but not from deceased account holder. The bank has contended that because of the aforesaid legal issues involved, this Commission has no competent jurisdiction to Rnm cc382016 Page 4 of 10 decide all these controversial problems and this Court cannot pass any declaratory relief in favour of the complainant. It is also further, contended that this Commission has no competency to decide whether Succession Certificate issued by the foreign Court can be enforced in India or not. Therefore, the complaint is not maintainable before this Commission. It is also further contended in the reply that it is prima facie, time barred complaint. There is nothing on record to establish alleged deficiency in service in its „present form.‟ In short, the bank has primarily objected to the jurisdiction of this Commission. The record shows that both the parties have submitted the legal submissions and no more evidence on either side. It is in these circumstances; the matter was taken for final disposal.
[4]. We have gone through written submissions filed by both parties and our findings are as under: -
[a]. It is not in dispute between the parties that the amount was lying in the bank account and the account was in the name of deceased Mr. Lavjibhai. It is also not in dispute that Lavjibhai had expired on 06.07.1996 at Jamnagar. The written will which the complainant claims to have been written by deceased is dated 28.06.1996 and it was stated to have written at Jamnagar. It is also not in dispute that the will was not registered before the competent authority in India. The bank raises dispute regarding authenticity of will and also contents of will over and above authority of complainant in this case. The bank also raised issue regarding maintainability of Complaint under provisions of The Consumer Protection Act, 1986.
Under such circumstances, issue regarding maintainability should be decided first. According to bank, complainant is not "Consumer" under the provisions of the Consumer Protection Act 1986. It is not in dispute that name of complainant was never incorporated in the Banking records either as nominee or joint holder of the bank account. Therefore, at the best, if any right is given under will even then he may be a "beneficiary of the fund," but cannot be said a Rnm cc382016 Page 5 of 10 "beneficiary of the services" rendered by the bank by any stretch of imagination. The contention raised by bank in this case, that the complainant is not a "consumer." Therefore, to fall within the scope of word "Consumer" a person must be hirer of service or beneficiary of service as it specifically defined in the Consumer Protection Act. Sec. 2 (1) (d) defines "Consumer" means any person who-
i. ____XXXX_____ ii. "hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who „hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;"
From the aforesaid definition, it is clear that the person who hires or avails the services of the opposite party is the Consumer and also the person who is "beneficiary of services" are also "Consumer." Now the question is whether the complainant can be said "beneficiary of the fund" alone or also the "services" of the bank? The person may have relationship with the banking account holder, but merely because of his relations with the account holder, the bank is not supposed to extend its services to the relatives of the account holder unless and until the name of that person has been included in the banking records with the permission of account holder. The complainant is claiming the amount lying in the credit of the bank account in his capacity as administrator of the estate of the deceased Lavajibhai and also beneficiary of fund to some extent. He may have a right to enjoy property after the death of Lavajibhai but till death of Lavajibhai he was not "Consumer" of the bank. When the bank was informed about the death of account holder, obviously the relationship of the "Consumer" qua the "banking services" comes to an end. The Consumer Protection Act provides for status of "Complainant" to Rnm cc382016 Page 6 of 10 legal heirs. It also appears from the record that deceased Lavjibhai had a daughter who is survived. In that case, she would be legal heir and "complainant" as it provided and present complainant being administrator cannot be clothed as "beneficiary of services"
of account holder and therefore not "Consumer". The law provides that only legal heir can be complainant and present complainant is not legal heir. Therefore, there is some force in the contentions raised by the bank that the complaint is not the "Consumer" even if he may be beneficiary of the fund lying in the credit of the bank account.
[b]. The bank has also contended that the will stated to have been executed by deceased Lavajibhai was in Gujarati and it was translated into English to obtain Succession Certificate from the High Court of Kenya. The copy of the translated version of the said will reads as under: -
"Date- 20.06.96 Bhai Shri Tribhovan Bhai- Nairobi and Bhai Bhagwanji Kalubhai- Rajkot. Today I appoint you both as my trustees.
This is to be treated as my Will for the purpose of administering my property. As yet I have not given details pertaining to my personal belongings to anyone, but I hereby authorise that apart from my personal property as well as Jayantilal‟s property, all cash related matters be handled by you both.
I have newly purchased a property in Jamnagar, which is situated at Pankaj Society, and is in the joint name of Jayantilal and myself. My name may be struck off and substituted with that of Bhavesh Tribhovan Voralia, I thereby revoke all my claims on the said property.
A second property at Rajkot which was in the joint names of Jayantilal and myself has been sold, another property at Industrial Area, Gondal Road that was in my own name has also been sold. The proceeds have been deposited in my New Account, of which fifty percent Jayantilal has to give my daughter Saroj (Champaben), while another Twenty Five percent is retained by Jayantilal for himself and the remaining Twenty Five percent to be given to Bhavesh and Viren. In most of my accounts Bhai Bhagwanji has been given powers and they shall continue to remain in force.
Legalities may be executed as required. If any balance remains in my Personal A/c then Rupees Fifty Thousand may be given to an institute or charity as you deem fit.
Arrangements be made for my daughter's daughters so that they may get a permanent income or buy a house in London. There are also GB £ Sixteen Thousand in Bank of Baroda "in the name of Tribhevan and myself, and if possible this amount may be used for the purchase of my daughter's house.
Another account is in Bombay, at Central Bank having approximately GB £ Fifteen/Sixteen Thousand which may be given to Jayantilal. Regarding my property at Kisumu, this may be dealt with in consultation with Bhavesh and Dr. N.A.Jani. I have given Tribhovan a house for which he already possesses the capital. Some more capital has also been given to him and a further amount of Rupees Three Hundred Rnm cc382016 Page 7 of 10 Thousand may be given to him. And if possible, arrange to buy a house from the assets in England, for Jayantilal and our daughter Saroj (Champaben) Regarding the property in Kisumu which is in the joint names of Jayantilal and myself, if Bhavesh wishes to stay there, he may be allowed to do so but if he is satisfied with the income from the interest from the sale of the property this may be arranged. Grandson‟s marriages may be conducted as per advice of Bhavesh GB £ Ten Thousand be given to Babubhai's daughter Surbhi, Advice concerning matters of my Kisumu assets will be given by my personal advisor Dr. Jani and Mr. Satyavrat Jobanputra.
sd. Lavjibhai"
From the aforesaid will it can be said that Mr. Tribhovanbhai and Mr. Bhagvanji Kalubhai were appointed as "trustee" of the properties of deceased. In the said will, there is no specific reference with regard to bank account with the opposite party. Although, it is mentioned that he had opened new account but there is no specific mention about the particular bank account of the deceased. If the arrangement made in the will be given effect as it is even then also it is for the Tribhovanbhai and Mr. Bhagvanjibhai Kalubhai to decide about the disposal of the said properties. The deceased had given instruction for distribution of the fund lying to his credit where it is categorically mentioned that 50% of the said account be given to deceased‟s daughter Saroj (Champaben), 25% to be given to Jayantilal and balance 25% to be distributed between the Bhavesh and Viren. Thus, present complainant can be said entitle for 50% of the 25% lying in bank account. Therefore also, complainant cannot ask the entire fund lying to credit in the account. Secondly it is categorically mentioned in the will that the deceased have given powers to Bhagwanjibhai Kalubhai in most of his accounts and it should continue to remain in force therefore, it is for the Bhagwanjibhai to decide about the same. Now the complainant‟s case is that the Bhagvanjibhai had executed a special power of attorney in favour of Tribhovanbhai and gave authority. This power of attorney which reads as under: -
"NOW THIS DEED WITNESSETH that I BHAGWANJI KALUBHAI KHAMBHAITA NOMINATE CONSTITUTE AND APPOINT the said TRIBHOVAN HIRJI PESHAVARIA to be my lawful Attorney for the purpose of Petitioning for Letters of Administration of Rnm cc382016 Page 8 of 10 the Estate of LAVJI RUDA VORALIA and the distribution of the assets of the said Estate in accordance with the Will of the said LAVJI RUDA VORALIA and on my behalf and in my place do such things and execute such documents as are necessary to carry out the powers hereby granted and in accordance with the law. The costs of the Petition and distribution of the said assets shall be recovered from the Estate. I further fully absolve the said TRIBHOVAN HIJRI PESHAVARIA from any and all liabilities, actions, claims, and counter- claims which may be made against him arising from his lawful discharge of responsibilities entailed herein."
[c]. It is clear that the powers have been given for limited purpose of petitioning for the letters of administration of the estate of the deceased Lavjibhai Rudabhai Voraliya and distribution of the estate of the said assets in accordance with the will of said Lavjibhai Rudabhai Vorlaiya. Therefore, whatever powers were given under will to Bhagwanjibhai Kalubhai those were transferred to Tribhovanbhai and not to the complainant. It is admitted that Tribhovanbhai is also expired. The complainant is claiming here because even Tribhovanbhai had expired and he got amended certificate and, on that basis, claiming this right. But this right was never given by account holder. This right cannot be given because when a person to whom authority was given under will had expired, it automatically ceases to operate and in such case, all rights vests in legal heirs. This is exactly what the bank has contended. Therefore, the complainant has no authority to claim such amount. Even the certificate (Succession Certificate) issued by the judge of the High Court of Kenya has appointed Tribhovanbhai Hirji Peshavaria as the administrator of property of deceased Lavajibhai.
[d]. It is not understood when the person died in India and having property in India, why Indian Courts were not approached for the valid Succession Certificate in India. Although the complainant has placed on record the consent given by the Jayantilal Lavjibhai Volariya for appointment of complainant as executer of the estate of the said Lavjibhai Rudabhai Volariya but such certificate cannot have validity in India because those documents are not issued under the provision of the Indian Rnm cc382016 Page 9 of 10 Succession Act. Therefore, the bank has rightly rejected the request of the complainant for operation of the bank account of deceased Lavjibhai Rudabhai Voraliya, and therefore it cannot be said that it is a case of deficiency in service on the part of the bank.
[5]. We are aware that complainant is a person who holds powers of administration of properties of deceased Lavjibhai and those powers were given with consent by administrator / trustee and succession/ probate was amended in the year 2007 but whether granting of such powers through a document have validity in India or not is the question to be decided by the competent court of jurisdiction in India and certainly not by the Consumer Forums established under the provisions of Consumer Protection Act. 1986. It is in these circumstances we are of the opinion that the complaint of complainant is not maintainable under the provisions of Consumer Protection Act, 1986. Otherwise also the Consumer Forums are dealing with disputes in summary manner where all these questions cannot be decided. It is also true that Consumer Forums are not competent to grant declaratory relief and therefore also, we declined to exercise jurisdiction and passed following final order.
ORDER
1. The complaint No. 38/2016 is hereby dismissed.
2. There shall be no order as to costs.
Pronounced in the open Court today on 26th July 2023.
[Ms. P.R. Shah] [Mr. R N Mehta]
Member Presiding Member.
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