Delhi District Court
Madhu Bala Guptrup (Aged 61 Years) vs Satyender Nath Singhal on 3 July, 2009
IN THE COURT OF DR. KAMINI LAU, ADDL.
DISTRICT & SESSIONS JUDGE, CENTRAL13,
DELHI
Suit No. 61/2008
Madhu Bala Guptrup (aged 61 years)
D/o late Sh. Hari Hardayal Guptrup,
R/o Village - Shivlalpur, Ram Nagar,
Tehsil Ram Nagar, Distt. Nainital,
Uttarakhand,
(Through her attorney Sh. Sachender Nath Singhal)
.............. Plaintiff
Vs.
1. Satyender Nath Singhal
S/o Late Sh. R. D. Singhal
R/o A635, Shastri Nagar,
Delhi 52
2. Shail Kumari
W/o Satyender Nath Singhal
R/o A635, Shastri Nagar,
Delhi 52
3. The Post Master
Nimari Post Office,
Through : Post Master
Head Post Office - Ashok Vihar,
Ashok Vihar, Delhi52
.................. Defendant
Date of Institution: 1.4.2008
Arguments Heard on: 5.6.2009
Date of Decision: 3.7.2009
1
: JUDGMENT :
This suit for recovery of Rs.10,54,600/ has
been filed by the plaintiff Madhubala Guptrup aged about
61 years through her attorney Sachendra Nath Singhal who
is also her first cousin against the defendants no. 1 and 2
her first cousin and his wife and the defendant no. 3 the
Post Master of the Post Office where she had invested a
sum of Rs.9 lacs. Briefly the facts relevant to the disposal
of the same are as under:
BRIEF FACTS:
Plaintiff's Case:
The case of the plaintiff is that she is an illiterate, 61 years old single women who had a joint bank account with her father Sh. Hari Hardayal Guptrup vide S. B. A/c No. 9893 at Canara Bank, Branch Shastri Nagar, Delhi52. She has filed the present suit through her attorney Sachendra Nath Singhal who is also her first cousin being the son of her father's brother. It is pleaded that the plaintiff had invested a sum of Rs.9,00,000/ in 2 Monthly Income Scheme (MIS) with the defendant no. 3 i.e. vide (i) MIS No. 168781 dated 24.12.2005 for Rs.4,50,000/, which money was credited to the defendant no. 3 vide cheque no. 992646 for Rs.4,50,000/ on 22.12.2005 from aforesaid S.B. A/c No. 9893; (ii) MIS No. 168911 dated 23.01.2006 for Rs.4,50,000/, the money was credited to the defendant no. 3 vide cheque no. 992647 for Rs.4,50,000/ for 22.12.2005 from aforesaid S. B. A/c No. 9893; in order to secure a regular income from the accrued interest thereon to support her living as advised by her father. It is alleged that the defendant no. 1 & 2 had accompanied the plaintiff to do filing up / writing formalities at the office of the defendant no.3. It is stated that the defendant no. 1 is her cousin (Chachera Bhai) and defendant no. 2 is the wife of defendant no.1. The father of the plaintiff Sh. Hari Hardayal Guptrup left for his heavenly abode on 3.1.2007. Soon after his death the behaviour of defendant no. 1 & 2 drastically changed towards the plaintiff and they started misbehaving, humiliating, coercing and taunting her to leave their house 3 as she was good for nothing. It is stated that Sh. Hari Hardayal Guptrup, the father of the plaintiff used to give a good amount money to the defendant no. 1 & 2 as good gesture in lieu of the one room accommodation provided by the defendants no. 1 & 2 during the stay of plaintiff and her father at Delhi. The defendant no. 1 also used to borrow money from plaintiff' s father on one pretext or the other but he never returned the same. According to the plaintiff, being illiterate and old aged woman she was not in a position to update her MIS status on month to month basis. She made inquiries from the defendant no. 3 regarding the MIS accounts status but no positive response came and thereafter in order to know about the exact position of her MIS, she applied to CPIO (RTI) vide letter dated 8.11.2007.
It is stated that the defendant no. 3 in its reply letter no. BII/RTI47/AVHO, Delhi 110052, dated 5.12.2007 informed the plaintiff that the MIS account no. 168781 for Rs.4,50,000/ which was going to mature on 22.12.2011 had been prematurely closed by Satyender 4 Nath Singhal the Defendant No. 1 and a payment of Rs.4,41,000/ through cheque no. 391592 dated 1.10.2007 had been made to Satyender Nath Singhal. Similarly, MIS account No. 168911 for Rs.4,50,000/ which was to mature on 23.1.2012 had been prematurely closed by Shail Kumari the Defendant No. 2 through her messenger Sh. S. N. Singhal and a payment of Rs.4,41,000/ through cheque no. 391123 dated 27.9.2007 had been made to Shail Kumari.
According to the plaintiff, she was initially shocked of the conspiracy and fraud played upon her, she later confronted the defendant no. 1 and 2 as they were never authorized to close the MIS or withdraw the amount at any point of time but the defendant no. 1 & 2 misbehaved and even manhandled her. It is alleged that the defendant no. 3 through his officials, in conspiracy and in connivance with the defendants no. 1 & 2 has allowed the defendant no. 1 and 2 to unauthorizedly and illegality close both the aforesaid MIS accounts and has made unwarranted deductions @ 2% of the principles amount 5 and handed over the invested money and interest accrued to defendant no. 1 & 2 in order to procure a wrongful gain to themselves and a wrongful loss to the plaintiff. It is further stated that the defendant no. 1 to 3 are jointly and severally liable to pay the plaintiff the Principal amount of Rs.9,00,000/ alongwith the interest @ 8% p.a. upto 31st January 2006 which comes to Rs. 04,600/ and interest @ 8% p.a. w.e.f. February 2006 to February 2008 which comes to Rs.1,50,000/ i.e. total Rs. Rs.10,54,600/ besides the future interest @ 18% p.a. on Rs.10,54,600/ till realization.
A legal notice dated 8.1.2008 were served upon the defendant no. 1 & 2 despite which they have not paid / returned any money to the plaintiff and have only given a vague reply dated 15.1.2008. The defendant no. 3 has also failed to revive the both MIS accounts despite the legal notice dated 18.2.2008 but has sent a copy of letters dated 20.2.2008 & 29.2.2008 addressed to counsel of the plaintiff. It is also stated that the plaintiff has no efficacious remedy to get justice and her invested money 6 recovered except to approach the court due to which reason she has filed the present suit.
Defendants' Case The defendant No. 1 & 2 have filed their written statement wherein they have raised a preliminary objection that the suit filed by the plaintiff is not maintainable as the same is barred under Order 32 of CPC, 1908, as the plaintiff is of weak and unsound mind. It is pleaded that the suit filed by the plaintiff also does not disclose any cause of action against the defendant. It is further alleged that the suit has not been instituted, signed and verified by the competent and duly authorized person. It is also stated that the suit is barred under Section 80 CPC as the plaintiff has not served any notice as mandated under Section 80 of CPC to the defendant no. 3.
On merits, it has been denied that the plaintiff is illiterate woman of 61 years and was holding joint saving account with her father namely Sh. Hardayal Guptrup vide SB account no. 9893 at Canara Bank, Branch 7 Shastri Nagar, Delhi52. The defendant no. 1 and 2 have also denied the various allegations made against them or that she had invested a sum of Rs.9 lacs in MIS with defendant no. 3 and that the money was credited to the defendant no. 3 vide cheque no. 992646 for Rs.4,50,000/ on 22.12.2005 and Cheque no. 992647 for Rs.4,50,000/ on 22.12.2005 from the aforesaid saving bank account no. 9893 in order to secure a regular income from the accrued interest thereon to support her living as advised by her father. It is stated that late Sh. Harihar Dayal Guptrup father of plaintiff had been residing with the defendants no. 1 and 2 alongwith the plaintiff for last 26 years and the defendants 1 and 2 had been taking care of them since then. In consequence of the pious services afforded to the father of the plaintiff by the defendants no. 1 and 2 and also out of love and affection, the plaintiff' s father gave Rs.4,50,000/ to the each defendants no. 1 and 2 during his life time. It is further pleaded that the defendants being senior citizens deposited the said amount in the MIS to secure the income by way of interest and since as per the 8 post office rules the maximum limit for deposit of the amount was Rs.3 lacs in case of single account holder and Rs.6 lacs in case of two account holders due to which reason the defendant no. 1 & have deliberately opened the said MIS account alongwith the plaintiff just to secure the maximum limit of Rs.6 lacs to deposit Rs.4,50,000/ in the said accounts. It is stated that the account was the accountincommon to be operated by either or survivor and both the defendant were already having few accounts in their names, therefore, the said accounts could not be opened in the name of the defendants. It is pleaded that the plaintiff had been residing with the defendants and was being looked after by the defendants no. 1 and 2 and she was only an inactive account holder. After the death of her father, Sh. Sachender Nath Singhal, the cousin of the plaintiff took her to his home and taking advantage of her mental weakness he has filed this false and frivolous suit as her attorney only to harass the defendants no. 1 and 2. It is alleged that the wife of Sh. Sachender Nath Singhal namely Smt. Gayatri Devi has also been given certain 9 amount by the plaintiff. It is denied that soon after the death of Sh. Harihar Dayal Guptrup the behaviour of defendants no. 1 & 2 drastically changed towards the plaintiff and they coerced and taunted her to leave their house as she was good for nothing. It is stated that in fact Sh. Sachender Nath Singhal had induced the plaintiff and took her to his home in greed of money and also to harass the defendants no. 1 and 2 and extort money from them. It is denied that Sh. Hairhar Dayal Guptrup used to give a good amount to the defendant no.1 as good gesture in lieu of one room accommodation provided by the defendant no. 1 & 2 during the stay of the plaintiff and her father at Delhi.
According to the defendant no. 1 and 2 they have closed the above said MIS accounts in their own rights and have withdrawn their own money as such the question of raising any objection by the plaintiff against the rights of the defendants does not arise at all. It is stated that the defendants no. 1 and 2 have deposited their own amount in the MIS accounts as such question of playing 10 any fraud upon the plaintiff and also the question of confrontation and authorization to close the aforesaid MIS accounts or withdraw the amount at any point of time from the defendant no. 3 does not arise. It is denied that the defendant no. 1 & 2 misbehaved and manhandled the plaintiff in order to coerce her to surrender herself to their will. The defendants have also denied the allegations of conniving with the officials of the defendant no. 3 in order to unauthorizedly and illegally close both the MIS accounts. It is also denied that the defendant no. 3 is connived with the defendants no. 1 and 2 in making money by unwarranted deductions @ 2% on the principal amount and handing over the invested money alongwith interest to the defendant no. 1 & 2 in order to procure a wrongful gain to themselves and wrongful loss to the plaintiff. It is also denied that the defendant no. 1 to 3 are jointly and severally liable to pay Rs.10,54,600/ to the plaintiff besides the future interest @ 18% per annum on Rs.10,54,600/ till its realization. The defendants no. 1 and 2 have also specifically refuted the claim made by the 11 plaintiff in her notice dated 8.1.2008 by way of reply dated 15.1.2008.
The defendant no. 3 has also filed the written statement and has raised a preliminary objection that plaintiff has not come with clean hands and has suppressed the material facts before this Hon'bl e Court. It is stated that the plaintiff was codepositor of both MIS accounts as under:
Account Name of Date of Amount
No.
account
holder
Maturity
deposited
26878 1. Satyender Nath 22.12.2011 Rs.4,50,000
Sehgal
2. Smt. Madhu Bala
Guptrup
168911 1. Smt. Shail Kumari 23.01.2012 Rs.4,50,000
2. Smt. Madhu Bala Guptrup It is stated that both the aforesaid account were jointly opened at Nimri Post Office and payment was to be made to either of the two or survivor, as the case may be. Accordingly, on being approached by Sh. Satyender Nath Singhal and Smt. Shail Kumari, the codepositors in the aforesaid MIS accounts, the defendant no. 3 prematurely 12 closed both the accounts deducting Rs.9,000/ @ 2% from the face of Rs.4,50,000/ each and made the payments through cheques vide No. 391592 dated 1.10.2007 and No. 391123 dated 27.9.2007 for Rs.4,41,000/ each to Sh. Satyender Nath Singhal and Smt. Shail Kumari respectively as per withdrawal forms and payment orders in respect of the aforesaid accounts. It is stated that the plaintiff has no locus standi to file the present suit as both the aforesaid accounts were jointly opened by the plaintiff and defendant no. 1 & 2 with the defendant no. 3 with the option to make payment to either party or survivor and the defendant no. 3 has acted rightly in accordance with instructions of the account holders including the plaintiff herein.
On merits the defendant no. 3 has denied the various allegations made against them. It has been denied that the plaintiff alone invested the sum of Rs.9,00,000/ in both the accounts as alleged. It is reaffirmed that the said accounts were jointly opened by the plaintiff and defendant no. 1 & 2 with the option that the payment can 13 be made to either party or survivor, as the case may be. It is pleaded that as per rules either of these persons could have got the payment either prematurely or on maturity from the defendant no. 3. It is also stated that no written requests / application was ever received by the defendant no. 3 about the closure of both the accounts and the information sought was supplied to the plaintiff by the defendant no. 3 office letter No BII/RTI47/AVHO Delhi 52 dated 5.12.2007. It is pleaded that both the accounts being jointly opened by the plaintiff and defendants no. 1 & 2 with the option to make payment to either party or their survivor, the question of any authorization by the plaintiff to close the aforesaid MIS accounts or withdraw the amount at any point of time from the defendant no. 3 does not arise at all. It is stated that the defendant no. 3 had no alternative but to honour the requests of either party to close the said accounts or withdrawal the amount deposited by them. It has been specifically denied that the defendant no. 3 through his officials, in conspiracy and in connivance with the defendant no. 1 & 2 has allowed the 14 defendant no. 1 & 2 to unauthorise and illegally close both the aforesaid MIS accounts and made unwarranted deductions @ 2% of the principal amount and handed over the invested money and interest accrued to defendant no. 1 & 2 in order to procure a wrongful gain to themselves and a wrongful loss to the plaintiff. According to the defendant no. 3 it has acted according to rules an regulations governing the MIS accounts. It is denied that the defendant no. 3 is liable to pay the alleged amount of Rs.10,54,600/ plus interest @ 18% p.a. till realization, as alleged and it is stated that the defendant no. 3 has already made the payment of the amounts deposited in the accounts to defendant no. 1 & 2.
ISSUES FRAMED:
On the basis of the pleadings of the parties, this court has framed the following issues:
1. Whether the plaint is not maintainable being barred under Order 32 as the plaintiff is of weak and unsound mind? (OPD1&2) 15
2. Whether the plaintiff is not entitled to the recovery as asked for in view of the fact that the plaintiff is a codepositor of both the MIS accounts? (OPD3)
3. Whether the plaintiff is entitled to the recovery of Rs.10,54,600/ alongwith interest as asked for in the plaint? (OPP)
4. Relief.
EVIDENCE:
In order to prove her case the plaintiff has examined as many as three witnesses. The plaintiff has examined her attorney Sachendra Nath Singhal as PW1 who has in his examination in chief by way of affidavit corroborated what the plaintiff has stated in the main suit. He has placed on record the registered attorney which is Ex.PW1/1; electoral identity card and pension service book which are Ex.PW1/J & PW1/K; the pass book of account no. 9893 which is Ex.PW1/A; the letter dated 5.12.2007 which is Ex.PW1/B; copy of the legal notice dated 18.2.2008 and letter dated 20.2.2008 and 29.2.2008 16 which are Ex.PW1/C, PW1/D & PW1/E (collectively) and the statement of bank account no. 9893 which is Ex.PW1/L. PW1 has also placed his reliance on the pleadings in the plaint and replications filed by the plaintiff which are Ex.PW1/F, PW1/G and Ex.PW1/H. PW2 Atul Kumar, Public Relation Inspector, Post OfficeAshok Vihar has in his examination in chief placed on record the application of the Satyendra Nath and Madhubala Guptrup alongwith the copy of the ledger and withdrawal form which is Ex.PW2/1. He has also placed on record the application of Shail Kumari and Madhubala Guptrup alongwith the copy of the ledger and withdrawal form which is Ex.PW2/2.
PW3 Jagmohan Singh Record Clerk from Canara Bank Shastri Nagar Branch has proved the statement of account in respect of the joint account bearing no. SB 9893 in the name of Madhubala Guptrup and Harihar Dayal Guptrup which is already Ex.PW1/L; the certified copies of the same which are Ex.PW3/A and the supporting letter issued by the Senior Manager which is 17 Ex.PW3/B. The defendants no. 1 and 2 have examined themselves as their witnesses as DW1 and DW2 who have in their examination in chief by way of affidavits corroborated what they have earlier stated in their written statements.
Kishan Lal Senior Post Master, Post Office Ashok Vihar has been examined as DW3 who has in his affidavit of evidence corroborated what the defendant no. 3 has earlier stated in the written statement. He has placed his reliance on the application form, ledger and withdrawal forms which are already Ex.PW2/1 & PW2/2; letter dated 5.12.2007 which is already Ex.PW1/B; letters dated 18.2.2008, 20.2.2008 and 29.2.2008 which are already Ex.PW1/C, PW1/D and Ex.PW1/E and the photocopy of the rules of the Post Office which are already Ex.PW2/D1. FINDINGS:
I have heard the arguments advanced before me by the counsels for the parties and have gone through 18 the records of the case. My findings on the various issues are as under:
Issue no.1 Whether the plaint is not maintainable being barred under Order 32 as the plaintiff is of weak and unsound mind? Onus of proving this issue was upon the defendant no. 1 and 2. In their written statement the defendants no. 1 and 2 have claimed that the plaintiff is an old lady of 61 years and is of a weak and unsound mind and therefore, the present suit should have been filed by the plaintiff under Order 32 CPC which has not been done for which reason it is barred and required to be dismissed.
The plaintiff has denied the aforesaid and has stated that the said allegations levelled by the defendants no. 1 and 2 are malicious and tentamounts to stigma. During the course of proceedings this court had directed the personal appearance of the plaintiff in the court for examination. On 15.7.2008 the plaintiff Madhubala Guptrup appeared in the court and was subjected to examination by this court. It was observed by the court 19 that she was correctly replying to the queries put to her by the court and specific observations were thereafter made by this court after her examination that she does not appear to be lunatic. Therefore since a specific objection was raised by the defendants no. 1 and 2 with regard to the mental state of the plaintiff this issue was framed and the onus of proving this allegation was therefore upon the defendants.
It is evident from the record that the defendants have failed to produce any evidence in the form of medical record or otherwise to show that the plaintiff is of a weak or unsound mind. Rather on the contrary DW1 Satinder Nath Singhal in his examination in chief by way of affidavit which is Ex.DW1/1 in paragraph 17 in contradiction to the stand taken by him in the written statement has specifically stated on oath that the plaintiff is physically fit and well and PW1 who is her attorney has no right to depose on her behalf. Similarly DW2 Shail Kumari has also in her examination in chief by way of affidavit which is Ex.DW1/2 stated on oath that the 20 plaintiff is physically fit and well and that PW1 has no right to depose on her behalf.
This stand which is now being taken by both the defendant no. 1 and 2 on affidavit is contrary to the objection which these defendants have taken in their written statement regarding the plaintiff being of a weak and unsound mind. Therefore, in view of the aforesaid and also in view of the specific observation made by this court on 15.7.2008 after examining the plaintiff that she does not appear to be a lunatic, I hereby hold that the defendants no. 1 and 2 have not been able to prove and substantiate the allegations made by them against the plaintiff being of a weak and unsound mind rather in view of their affidavits of evidence it appears they have abandoned this plea, therefore, the question of provisions of Order 32 being attracted does not arise. Issue is decided in favour of the plaintiff and against the defendants.
Issue no. 2 Whether the plaintiff is not entitled to the recovery as asked for, in view of the fact that the plaintiff is a codepositor of both the MIS accounts?
21 Issue no. 3 Whether the plaintiff is entitled to the recovery of Rs.10,54,600/ alongwith interest as asked for in the plaint?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving the issue no. 2 was upon the defendant no. 3 and that of issue no. 3 was upon the plaintiff. The case of the defendant no. 3 i.e. Postmaster, Nimari Post Office, Ashok Vihar is that the plaintiff was the codepositor of MIS Joint ' B' Type Accounts as per the particulars given below:
Account Name of A/C Date of Amount No. Holder Maturity Deposited 268781 1. Satyender Nath 22.11.2011 Rs.4,50,000/ Singhal
2. Madhu Bala Guptrup 168911 1. Shail Kumar 23.1.2012 Rs.4,50,000/
2. Madhu Bala Guptrup According to the defendant no. 3 both the aforesaid MIS joint B Type accounts were jointly opened 22 at Nimri post office and the payment was to be made to either of the two or survivor as the case may be for which the consent of the other co depositor was not required. It is stated that on being approached by Sh. Satyender Nath Singhal and Smt. Shail Kumari who were the codepositors in the MIS B type accounts, they prematurely closed both the accounts after deducting Rs.9,000/ @ 2% from the face value of Rs.4,50,000/ each and made the payment vide cheques No. 391592 dated 1.10.2007 and No. 391123 dated 27.9.2007 for Rs.4,41,000/ each to Sh. Satyender Nath Singhal and Shail Kumari respectively as per the withdrawal forms and payment orders in respect of the aforesaid accounts. The defendant no. 3 has examined one Kishan Lal who has corroborated what has been earlier stated in their written statement. The defendant no. 3 has also placed on record the application form and ledger and the withdrawal form which are Ex.PW2/1 and Ex.PW2/2.
He has deposed that no request on behalf of the plaintiff was received to update the MIS joint B Type accounts on month to month basis and even the information sought by 23 the plaintiff had been given to her vide letter no. B III/RTI47/AVRO dated 5.12.2007 which is Ex.PW1/B. According to the defendant no. 3 as per the terms of MIS B type account no authorization by the plaintiff to close the said accounts or to withdraw the amounts at any point of time by either codepositor or survivor is required and on being requested by the other codepositors of the aforesaid MIS B Type accounts namely Satyender Nath Singhal and Smt. Shail Kumari the defendant no. 3 office had acted as per rules to honour their request. In his crossexamination the witness has admitted that a sum of Rs.4,50,000/ was credited on 22.12.2005 vide cheque no. 992646 vide saving account no. 9893 of the plaintiff to open an MIS account no. 168781. He has admitted that an amount of Rs.4,50,000/ was also credited on 22.1.2006 vide cheque no. 992647 from the saving account no. 9893 of the plaintiff to open an MIS account no. 168911. He has further admitted that no amount was deposited either by Satyender Nath Singhal or Smt. Shail Kumari in the aforesaid accounts. 24
I have given my careful consideration to the facts and circumstances of the present case and also perused the documents Ex.PW2/1, Ex.PW2/2 and Ex.PW1/B which show that at the time of opening of MIS joint B type accounts the payment had been received vide cheque no. 992646 and 992647 for a sum of Rs.4,50,000/ each from the saving account no. 9893 of the plaintiff. Admittedly the said amount had been credited by the plaintiff by way of cheques for a sum of Rs.4,50,000/ each from her own personal saving account no. 9893. The statement of account of Canara Bank, Shastri Nagar Branch, Delhi - 110052 Ex.PW1/L, which has been duly proved by PW3 Jagmohan Singh, Record Clerk, Canara Bank, Shastri Nagar, Delhi, shows that on 22.12.2005 and 23.1.2006 a sum of Rs.4,50,000/ each had been withdrawn in favour of Post master from the said account vide cheque no. 992646 and 9926476 respectively which conclusively proves that the entire amount in both the MIS accounts was credited from the personal account of the plaintiff. Even DW3 has admitted that neither the 25 defendant no. 1 and nor the defendant no. 2 had any point of time deposited any amount in the said MIS joint B type accounts as per their record. I therefore hold that the two MIS joint B type accounts bearing no. 268781 and 168911 had infact been opened jointly by the defendant no. 1 and 2 with the plaintiff and the money in the said amount had been credited by the plaintiff through her own personal saving account which account she had held alongwith her father late Sh. Harihar Dayal Guptrup. Further, since the rules permit the operation of account by either of the co depositor or survivor, therefore, no permission was required from the plaintiff when the defendant no. 1 and 2 operated the said accounts and prematurely withdrew the entire amount after deduction of Rs.9,000/ @ 2% from the face value and as such they had received Rs.4,41,000/ each which they had received vide cheques no. 391592 dated 1.10.2007 and No. 391123 dated 27.9.2007 for which the defendant no. 3 cannot be made liable in view of the Post Office Saving Account Rules 1981 which are Ex.PW2/D1.
26
The defendant no. 1 and 2 have challenged the maintainability of the case filed by the plaintiff on three grounds. Firstly that she is an illiterate lady of a weak and unsound mind and the the present suit not having been filed under Order 32 CPC the suit is not maintainable. In view of my findings with regard to the issue no. 1 which are not being repeated for the sake of brevity I find no merit in this argument so raised by the defendants no. 1 and 2.
Secondly it is contended that despite the fact that the plaintiff is physically fit and is in position to come before this court, it is the PW1 Sachendra Nath Singhal who is her attorney now has appeared to depose. It is argued that the Power of Attorney issued in favour of PW1 has not been proved in accordance with law and even otherwise being in a fit physical state it was necessary for the plaintiff to appear before this court to depose in support of her case which she has not done and hence the deposition of PW1 cannot be read into evidence. In this regard the defendants have placed their reliance on the 27 following authorities:
1. Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd.
reported in 2005 (2) SCC 217.
2. Gajanan Krishnaji Bapat and Another Vs. Dattaji Raghobaji Meghe & Ors. reported in 1995 (5) SCC 347.
3. Rajgopal (Dead) by LRs Vs. Kishan Gopal & Anr. reported in 2003 VIII AC SC 277.
4. Kashi Nath (Dead) through LRs Vs. Jaganath reported in 2003 (8) SCC 740.
Ld. counsel appearing on behalf of the defendants no. 1 and 2 have also placed their reliance on the crossexamination of PW1 wherein he has admitted that he is deposing only as an attorney and is not personally aware of the facts of the case. They have further relied upon the crossexamination of PW1 wherein he has testified that the plaintiff is discharging her day to day functioning herself at her residence and besides doing the household work she is also going to a temple nearby the house. It is pointed out hat PW1 has in his testimony admitted that the plaintiff is physically good and enjoying 28 good health and she is not dependent on anybody in her personal life. I have considered the submissions made before me and the relevant case law so relied upon by the defendant no. 1 and 2. the Hon' ble Apex Court had in the case of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. reported in AIR 2005 SC 439 observed in para 13 that:
" Order III Rules 1 & 2, CPC, empowers the holder of power of attorney to "a ct" on behalf of the principal. In our view the word "a cts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "a cts" done by the power of attorney holder in exercise of power granted by the instrument. The term " acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "act s"
in pursuance to power of attorney, he may depose for the principal for the acts done by the principal and 29 not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined."
In para 15 of this judgment it has been held that :
" Apart from what has been stated, this Court in the case of Vidhyadhr Vs. Manikrao and another, (1999) 3 SCC 573 observed at page 583 SCC that "wher e a party to the suit does not appear in the witness box and states his own case on oath and does not, offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct."
The Hon'bl e court has further observed in Para 17 & 18 that :
" On the question of power of attorney the High Courts have 30 divergent views. In the case of Shambu Dutt Shastri Vs. State of Rajsthan 1986 (2) WLL 713 it was held :
that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself 'To appear' in a witness box is altogether a different act. A general power of attorney holder can not be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."
" The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. Air 1998 Raj. 185.
It was held that the word "a cts"
used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to 31 appears a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appears a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a Commissioner for recording his evidence may be issued under the relevant provisions of the CPC."
Also in para 21 of this judgment it was observed that :
" We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (Supra) followed and reiterated in the case of Ram Prasad (Supra) is the correct view. The view taken in the case of Floriano Armando Lut' s 2002(2) Bombay CR 754 cannot be said to have laid down a correct law and is accordingly overruled." 32
In the case of Susannee Lenatz Vs. International Hotels Limited reported in 2005 (125) DLT 409: 2005 (85) DRJ 521 Hon' ble Mr. Justice Badar Durrez Ahmed Judge, Delhi High Court has held that under order VI Rule 14 of the Code of Civil Procedure 1908 every pleading shall be signed by the party and his pleader, if any. The proviso to the said Rule indicates that where a party pleading is, by reason of absence or for other good cause unable to sign the pleading it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.
Therefore, it appears from the aforesaid that in a case where the party choses to away from the proceedings and there is no explanation forthcoming as to why the said party has failed to appear in the witness box then an adverse inference has to be raised that his case is not based upon true facts and is liable to be rejected.
However, in the present case it is evident that 33 the Power of Attorney which is Ex.PW1/1 has not only been notarized but has been duly registered before the Sub Registrar Nanital on 23.10.2007 vide MU No. 50 bearing registration no. 4 Vol. (3) at pages 215222 which power of attorney was duly witnessed by two witnesses namely Anurag Garg and Ajay Kumar. It also bears the finger prints of both the parties which were taken before the Sub Registrar in the presence of the witnesses. Therefore, the twin requirement of the execution and authentication have been complied, with on account of its registration. Vide the aforesaid attorney the plaintiff has duly authorized PW1 to institute court proceedings and pursue the same for appointment of an advocate.
The Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (Supra) had dealt with the authority of the attorney to depose in the court on behalf of the principal. It is evident that the attorney who has appeared before this court on behalf of the plaintiff is her first cousin and also the real brother of the defendant no. 1. Though he is not 34 personally aware of the deposits made while opening the account yet the documents filed by the Canara Bank, Shastri Nagar Branch whereby the plaintiff had opened a joint account alongwith her deceased father and the documentary record from the Post Office where the impugned MIS joint B type accounts had been opened, prove the case put forward by the plaintiff and therefore, simply because the plaintiff who is a senior citizen has personally not appeared before this court to depose will not make any difference to the merits of the case since the grounds raised by her in her pleadings stand proved by the witnesses from the bank and the post office.
However, in so far as the conduct of the defendant no. 1 and 2 is concerned, firstly it is evident from the application form and ledgers which are Ex.PW2/1; the withdrawal forms which are Ex.PW2/2 and the statement of account of saving bank account no. 9893 which is in the joint name of the plaintiff Madhubala Guptarup and her deceased father late Sh. Harihar Dayal Guptrup that the amount of the MIS accounts had been 35 credited from the account of the plaintiff after she withdrew the same from the joint account which she was holding with her father and neither the defendant no. 1 nor the defendant no. 2 at any point of time had invested any amount in the MIS accounts. Secondly it is not disputed that the father of the plaintiff had expired on 2.1.2007. Thirdly it is admitted by defendants no. 1 and 2 that they had prematurely closed the account and withdrawn the amount after closing the MIS joint B type accounts after about 78 months of the death of the father of the plaintiff. Fourthly the plaintiff had at no point of time given her consent to the defendants no. 1 and 2 to withdraw the said amount and the said amount which had earlier at the time of opening of the accounts, been credited by the plaintiff from her own personal saving account, had been withdrawn by the defendant no. 1 and 2 without her permission and consent. Lastly the argument put forth by the defendant no. 1 and 2 that the amount in question i.e. Rs. 9 lacs (Rs.4,50,000/ + Rs. 4,50,000/) had been given to them by the deceased father of the plaintiff on account 36 of mutual love and affection as the defendant no. 1 and 2 had taken good care of him and the plaintiff during his life time, does not appear very convincing since had that been so, then it was open to the father of the plaintiff to have made a Will during his life time in this regard which he has not done. It was also open to the father of the plaintiff to give the said amount to the defendant no. 1 and 2 without the plaintiff being a codepositor which again he did not do, therefore, the intention of Sh. Harihar Dayal Guptrup the father of the plaintiff clearly was to ensure the security of his daughter the present plaintiff after his death and it is only for this reason that he permitted them to have a joint MIS account with her. The plea of the defendant no. 1 and 2 that the name of the plaintiff had been added only for the purposes of enhancement of the limits of deposits also fall flat in view of the fact that had that been so then it was open to the defendant no. 1 and 2 to have opened two joint MIS accounts with each other as codepositors which they did not do. Rather, the fact they they preferred to join the plaintiff as a codepositor only strengthens the assumption 37 that this was done only to induce the late father of the plaintiff into crediting the aforesaid amount in the joint account of defendant no. 1 and 2 on the pretext that they shall be taking care of the plaintiff after his death which unfortunately did not happen and it was only for this reason that they hurriedly withdrew the amount from the post office and permanently closed the accounts after the death of Sh. Harihar Dayal Guptrup despite the fact that that the maturity of the account was of the year 2011 and 2012.
The plaintiff before this court is an illiterate and old lady of 61 years who during the life time of her father was residing alongwith the defendant no. 1 Satyender Nath Singhal and his wife the defendant no. 2 in the present case namely Shail Kumari but after the death of her father on 3.1.2007 as per the allegations in the plaint, the behaviour of the defendant no. 1 and 2 changed towards her and they started illtreating her and she is, therefore, now residing with her attorney Sachendra Nath Singhal who is the real brother of the defendant no. 1 and 38 also her first cousin. It is evident that the father of the plaintiff late Sh. Harihar Dayal Guptrup was a man of means and had sufficient bank balance as evident from the statement of account which is Ex.PW1/l which has been duly proved by PW3 the witness from the Canara Bank Shastri Nagar, Branch. This was the joint account operating in the name of the plaintiff and her late father and during his life time he had opened two MIS joint B Type accounts with the plaintiff as the codepositor alongwith the defendant no. 1 in respect of account no. 268781 and with the defendant no. 2 in respect of account no. 168911. The entire amount in the said joint accounts had been credited from the personal joint account of the plaintiff and her father. Unfortunately after the death of her father (on 3.1.2007) the defendant no. 1 and 2 prematurely without consent or permission of the plaintiff withdrew the entire amount from the aforesaid MIS B Type account taking the benefit of the Rules which do not provide for the consent or permission of the codepositor as a condition precedent for operation of the accounts as 39 the said accounts were allowed to be operated by either party or survivor. However, despite the fact that not even a single penny was deposited by the defendant no. 1 and 2 in the said accounts, the said amount was prematurely withdrawn after statutory deductions on 1.10.2007 and 27.9.2007 by prematurely closing these accounts which were otherwise to mature on 22.12.2017 and 23.1.2012. The plaintiff it appears came to know about it only when she exercised her right of information and obtained the said information in respect of the said accounts which reply Ex.PW1/B was given by the defendant no. 3 informing her regarding the aforesaid withdrawals.
On receiving the information with regard to the withdrawals the plaintiff immediately gave a notice to the Senior Post Master, Head Post Office, Ashok Vihar which notice is Ex.PW1/C and also the defendant no. 1 and 2 on 8.1.2008. She filed the present suit only after the defendant no. 1 and 2 failed to make the payment of the principal amount so withdrawn by them unauthorizedly and in the present suit she has also claimed the interest on 40 the said amount.
Therefore, in view of the aforesaid, I hereby hold that the plaintiff is entitled to the recovery of the amount so withdrawn by the defendant no. 1 and 2 from MIS joint B Type accounts bearing numbers 268781 and 168911 though cheques no. 391592 dated 1.10.2007 and no. 391123 dated 27.9.2007 for a sum of Rs.4,41,000/ each i.e. Rs.8,82,000/. Further, on account of the fact that the defendant no. 1 and 2 hurriedly withdrew the amount prematurely the plaintiff was put to loss for a sum of Rs.18,000/ which was deducted by the defendant no. 3 as per the existing terms and conditions the plaintiff suffered a loss by way of statutory deductions to the tune of Rs.18,000/. Therefore, the defendant no. 1 and 2 also liable to pay to the plaintiff a sum of Rs.18,000/on the aforesaid count. Further the plaintiff is also entitled to the interest @ 6% per annum from the date of institution of the suit till the realization of the decreetal amount. Issues are disposed off accordingly.
41 Relief:
In view of my findings with regard to the various issues I hereby hold that the plaintiff is entitled to the recovery of Rs.8,82,000/ and Rs.18,000/ from the defendant no. 1 and 2 alongwith the interest @ 6% per annum from the date of institution of the suit till the realization of the decreetal amount.
It has been observed that the plaintiff before this court is an absolutely illiterate single woman of 61 years. During the life time of her father she was residing with her first cousin the defendant no.1 Satyender Nath Singhal but unfortunately, after the death of her father on 3.1.2007, she was allegedly compelled to leave the house and is presently residing with the real brother of the defendant no.1 i.e. Satyender Nath Singhal who is also her power of attorney before this court. Incidentally both the defendant no. 1 and the attorney of the plaintiff who are real brothers are making allegations and counter allegations against each other of financially exploiting the plaintiff. Instances are not rare where senior citizens are 42 exploited by relatives and people known to them and this appears to be one such case and hence the concerns of this court with regard to the welfare of the plaintiff.
Unfortunately, in our country we do not have at place our social security laws for senior citizens. The courts cannot be a mute spectator till such time the legislature decides to Act. Senior citizens cannot be allowed to be exploited at the fag end of their life by their own near and dear. The plaintiff an old, illiterate single lady who is totally dependent upon her first cousins (also senior citizens) each of whom is accusing the other of financially exploiting the plaintiff on the pretext of taking care of her interests by claiming that the plaintiff is unable to take care of herself being a person of weak and unsound mind. The courts under these circumstances, cannot allow itself to be used by unscrupulous persons and therefore, under these circumstances the matter does not end here. It is necessary to ensure that once the plaintiff is able to recover her amount, she is allowed to use the same for her benefit as per her own wishes.
43
Therefore, this is one such case where the court is required to invoke its inherent jurisdiction to ensure that justice is actually done. I, therefore, direct the defendant no. 1 and 2 to deposit the entire decreetal amount of Rs. 9 lacs alongwith the interest @ 6% from the date of institution of such deposit in the Post Office situated at Tis Hazari Court complex Delhi under the Senior Citizen Scheme within 90 days from today under intimation to this court failing which the Civil Nazir attached to this court shall initiate appropriate proceedings for recovery of the same and warrants of attachment of the movable/ immovable assets of the defendants no. 1 and 2 shall be issued for satisfaction of the decreetal amount, which amount after recovery be deposited in the Post Office Tis Hazari Courts as directed herein above. It is further directed that the amount so deposited by the defendant no. 1 and 2/ got recovered from them shall thereafter be transferred by the Post Master, Post Office, Tis Hazari Courts to the Post Office nearest to the residence of the plaintiff at Nainital i.e. Village Shivlalpur Ram Nagar, 44 Tehsil Ram Nagar, Distt. Nanital, Uttrakhand.
Further, to ensure that the plaintiff is not subjected to any exploitation, the Deputy Commissioner/ District Magistrate, Nanital, Uttrakhand shall place the case of the plaintiff under the supervision of a Welfare Officer of his district. In case if there is no such nominated officer the District Magistrate/ Deputy Commissioner concerned shall then nominate some senior officer of the Social Welfare Department of his District as a Welfare Officer to ensure that the plaintiff is not subjected to any financial exploitation by her near relatives with whom she is staying and it is hoped that the State Government at its level through the Welfare Officer so appointed will take all necessary steps to ensure the welfare of the plaintiff and that the amount so got recovered is ultimately put to use for the welfare of the plaintiff as per her desire being her only old age security.
With these observations the suit is hereby decreed. Parties to bear their own costs. Decree sheet be prepared accordingly. Copy of this order be sent to the 45 District Magistrate/ Deputy Commissioner, Nanital, Uttrakhand through the Resident Commissioner for purposes of compliance under intimation to this court. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 3.7.2009 Addl. District Judge: Delhi 46 Madhubala Guptrup Vs. Satyender Nath Singhal CS No. 61/2008 3.7.2009 Present: Sh. Kishan Kumar, counsel for the plaintiff.
Sh. Brijesh Gupta, advocate for the defendant no. 1 and 2.
Sh. Paritosh Sharma, counsel for the defendant no. 3.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby decreed. Parties to bear their own costs. Decree sheet be prepared accordingly. Copy of the detailed order be sent to the District Magistrate/ Deputy Commissioner, Nanital, Uttrakhand through the Resident Commissioner for purposes of compliance under intimation to this court. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 3.7.2009 47