Delhi District Court
Franklin David vs Gladstone David on 2 January, 2023
In the Court of Dr. Rakesh Kumar : Additional District Judge, Central
District, Tis Hazari Court, New Delhi.
CS No. 2492/17
CNR no. DLCT01-006372-2017
In the matter of :-
Franklin David
S/o Late David Sargunam
R/o C-61, Pocket-1, Kendriya Vihar-2.
Noida Sector 82, U.P. .......Plaintiff
VERSUS
Gladstone David
S/o Late David Sanrgunam
R/o H.no. 10574, 2nd floor
Pratap Nagar (near Pratap Nagar
Metro Station), Delhi-110007. ......Defendant
Date of institution : 26.04.2017
Reserved for Judgment : 23.12.2022
Date of decision : 02.01.2023
SUIT FOR RECOVERY
JUDGMENT
1. This is a suit for recovery of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest.
2. Facts alleged in the plaint are that the plaintiff and the defendant are real brothers and sons of Late David Sargunma; that during his lifetime, David Sargunma had procured two Fixed Deposits of Rs.10,00,000/- each bearing F.D. A/c no.776617703 and 776617464 on 14.12.2008 wherein he nominated his younger son i.e., the plaintiff, as his nominee; that on his death i.e. on 09.09.2008, David Sargunma left behind by Mrs. G.T. Sargunam (wife), the plaintiff and the defendant as his legal representatives;
CS No. 2492/17 Franklin David v. Gladstone David Page no. 1 of 11 that after the death of Mr. David, the said two FDRs had been transferred in the name of the plaintiff; that the defendant got transferred the FDR no.776617703 for a sum of Rs.10,00,000/- belonged to the plaintiff, in the joint account of the plaintiff and the defendant; that as per the oral family settlement, the defendant would return the amount of Rs.10,00,000/- as and when the plaintiff demands within 2-3 years; that the defendant used the aforesaid amount towards his personal needs and luxuries and also for some joint household expenditure; that in the month of August, 2015, the plaintiff demanded the loan amount however the defendant sought some time; that the defendant has himself admitted the fact that the aforesaid two fixed deposits of Rs.10,00,000/- each deposited by their deceased father in the name of the plaintiff and the defendant has no right in the same; that due to unwarranted behavior of the defendant as he has run away from his moral and legal responsibilities towards his mother who was constrained to file a petition before the Principal Judge, Family Court seeking maintenance and medical expenditure from the defendant wherein interim order was passed; that on 20.02.2016, the plaintiff along with his mother issued a legal notice to call upon the defendant to pay a monthly maintenance to Mrs. G.T. Sargunam, to share bill of medical expenses and to return the amount of Rs.10,00,000/-; that the defendant issued reply dated 01.04.2016 and admitted that both the FDRs were of the plaintiff but did not pay back the amount, hence this suit.
3. The defendant contested this suit by filing written statement of his defence wherein took preliminary objection that the suit is bad for non- joinder of the necessary parties; that the suit is barred by limitation. In reply on merits, it is contended by the defendant that it was the sole decision of the plaintiff and his mother to withdraw the fixed deposits and to deposit a sum of Rs.10,00,000/- in the name of the plaintiff and the remaining fixed deposit of Rs.10,00,000/- in the joint account of the plaintiff and the CS No. 2492/17 Franklin David v. Gladstone David Page no. 2 of 11 defendant; that the said amount was spent full and full for the family commitments with clear knowledge of the plaintiff and his mother; that as claimed by the plaintiff that the interest of the family loan being paid to the mother of the parties, it is necessary to include her as a party to the present suit; that the nominee of any bank is only the guardian to the deposit, it does not forfeit the rights of other legal heirs entitled to the share. Other allegations of the plaint are denied and disputed by the defendant and prayed for dismissal of suit.
4. The plaintiff filed replication to the written statement wherein the contentions of the written statement are traversed and the averments of the plaint are reaffirmed.
5. From the pleadings of the parties, following issues were framed on 29.11.2017 for trial, namely:-
1. Whether the plaintiff gave Rs.10 lacs to the defendant under a settlement returnable as per plaintiff's demand and requirement within 2-3 years? OPP
2. Whether the plaintiff is entitled for recovery of money as prayed for? OPP
3. Whether plaintiff is entitled to interest, and if so, at what rate and for what period? OPP
4. Whether the suit is bad for non-joinder of necessary parties? OPD
5. Whether the suit is barred by limitation? OPD
6. Relief.
6. The plaintiff examined two witnesses. PW1 is Franklin David, the plaintiff himself who filed his evidence by way of affidavit (Ex.CW1/A) and also produced the documents from Ex. CW1/1 to Ex. CW1/4, CW1/6-
CW1/8, Mark 'A' (colly), Mark 'B' (colly), Mark 'C', Mark 'D' and Mark 'X'. PW2 is G.T. Sargunam, who filed his evidence by way of affidavit Ex.PW2/A. CS No. 2492/17 Franklin David v. Gladstone David Page no. 3 of 11
7. The defendant examined only one witness. DW1 is Gladstone David, the defendant himself, who filed his evidence by way of affidavit (Ex.DW1/A) and also produced documents Ex. DW1/1 to Ex.DW1/13 and Mark 'A' and Mark 'B'.
8. I have heard counsel for the parties and perused the material available on record.
9. My issue wise findings are as follows:-
ISSUES NO 1, 2 and 3.
Whether the plaintiff gave Rs.10 lacs to the defendant under a settlement returnable as per plaintiff's demand and requirement within 2-3 years? Whether the plaintiff is entitled for recovery of money as prayed for? Whether plaintiff is entitled to interest, and if so, at what rate and for what period?
10. Onus to prove these issues was placed on the plaintiff. These issues are taken together being inter-connected.
11. To prove these issues, it is stated by PW1 Franklin David, in his evidence affidavit, that after the death of father of the plaintiff and the defendant two FDRs of Rs.10,00,000/- each was transferred to the bank account of the plaintiff which is reflected in the FDR in the name of the plaintiff (Ex.CW1/2) and to the joint account of the plaintiff and the defendant which is reflected in the joint account bank statement (Ex.CW1/3). It is further stated by PW1 that the defendant being a government servant had purchased a car by making full payment and as such the department of the defendant i.e. IRCTC called for an explanation from the defendant (Mark A), wherein the defendant has admitted the fact that the two FDRs of Rs.10 lakhs each belonged to the plaintiff and he had used the same for the purchase of a car. It is further stated by PW1 that the plaintiff along with his mother issued a legal notice dated 20.02.2016 (Mark CS No. 2492/17 Franklin David v. Gladstone David Page no. 4 of 11 C) to the defendant to share the bill of medical expenses and to return amount of Rs.10 lakhs to which the defendant issued reply (Mark D) dated 01.04.2016 in which he has admitted that both the FDRs were of the plaintiff and the defendant was having authority to operate the joint account with his signature on the cheque book.
12. To disprove these issues, it is stated by DW1 Gladstone David, in his affidavit, that the defendant who started to work since February 2000, became the moral and financial supporter of the family since then and the transactions in his HSBC bank account showing the same are Ex.DW1/3. It is further stated by DW1 that the plaintiff is only a nominee of the aforesaid amount and he does not have complete right to enjoy the father's property. It is further stated by DW1 the amount of Rs.10,00,000/- deposited in the joint account of the plaintiff and the defendant was spent full and full for the family commitments and the details of the expenditures are mentioned. It is further stated by DW1 that the plaintiff is not entitled to any sum of money from the defendant as the aforesaid FDR of sum of Rs.10,00,000/- was deposited in the joint account with clear conscience and consent of the plaintiff and their mother.
13. In his cross-examination, it is stated by PW1 Franklin David as follows:
" I am graduate in BBA. I start doing job since September 2014. It is correct that my father late David Sargunam has not made any Will or attorney in my favour during his lifetime...... It is correct that after the death of my father his amount of Rs.20 lakhs being the two FDRs of ten lakhs each was got transferred in a joint account in the name of myself and the defendant....It is correct that I have not filed any document to show that the loan mentioned in my plaint of Rs.10 lakh was ever given to the defendant. Vol. It was a family loan given to the defendant with the consent of myself and my mother..... It is correct that we have never arrived at any family settlement in documents. It is wrong CS No. 2492/17 Franklin David v. Gladstone David Page no. 5 of 11 to suggest that we have never arrived any oral settlement....it is correct that in the said representation he has not mentioned about any loan taken from me.....It is correct that all the assets of my father, all the LRs having equal rights........It is wrong to suggest that defendant never taken any loan from the plaintiff.........It is wrong to suggest that the defendant received a Rs.10 lakhs from the abovesaid two FDRs of his father as his share...."
14. In his cross-examination, it stated by DW1 Gladstone David as follows:
"It is correct that I have not been made a nominee to the FDR of Rs.20,00,000/- by my late father.... It is correct to suggest that I have purchased the car in my name from joint account. (Vol. I have purchased the said car for the use of plaintiff and my mother)..... The car which I purchased was met with an accident in the year 2010 and same went in scrap. It is correct to suggest that I have obtained the compensation claim after my car met with an accident.(Vol. I had handed over the compensation to my mother in cash.).......It is incorrect to suggest that I have transferred Rs.1,00,000/- to my personal account from the joint account.........It is wrong to suggest that the amount transferred in the year 2009 in the joint account of myself and plaintiff was a family loan.
15. From the pleadings and evidence lead on behalf of the parties, the situation that emerges is that the plaintiff and the defendant are real brothers and sons of one David Sargunma. During his lifetime, the said David Sargunma procured two Fixed Deposits of Rs.10,00,000/- each bearing F.D. A/c no.776617703 and 776617464 on 14.12.2008. David Sargunma has died on 09.09.2008 leaving behind the plaintiff and the defendant (sons) and G.T. Sargunam, his wife. In those FDRs, the plaintiff was a nominee. After the death of their father, the amount of the two fixed deposits had been transferred in the name of the plaintiff.
16. Later, as per oral family settlement, the amount of one fixed deposit i.e. Rs.10,00,000/- was transferred to the joint account of the plaintiff and CS No. 2492/17 Franklin David v. Gladstone David Page no. 6 of 11 the defendant which has been used by the defendant and the amount of Rs.10,00,000/- of the second fixed deposit was again deposited as fixed deposit in the name of the plaintiff.
17. Now, the case set up by the plaintiff in the plaint is that the said amount of Rs.10,00,000/- transferred to the joint account and used by the defendant was given to the defendant as a loan by the plaintiff. The case of the plaintiff is that he, being nominee of the two fixed deposits, is entitled to the entire amount of Rs.20,00,000/- of both fixed deposits and the defendant has no right to the same.
18. The Learned Counsel for the plaintiff has referred to the notification Section 45ZA in Banking Regulation Act, 1949 to argue that the plaintiff being the nominee of his deceased father has got absolute right to the money deposited by the deceased father by way of fixed deposits. The relevant portion from the notification is as follows:
"307 [45ZA. Nomination for payment of depositors' money. -
(1) Where a deposit is held by a banking company to the credit of one or more persons, the depositor or, as the case may be, all the depositors together, may nominate, in the prescribed manner, one person to whom in the event of the death of the sole depositor or the death of all the depositors, the amount of deposit may be returned by the banking company.
(2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount of deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositors or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.
(3) Where the nominee is a minor, it shall be lawful for the depositor making the nomination to appoint in the prescribed manner any person to receive the amount of deposit in the event of his death during the minority of the nominee.
(4) Payment by a banking company in accordance with the provisions CS No. 2492/17 Franklin David v. Gladstone David Page no. 7 of 11 of this section shall constitute a full discharge to the banking company of its liability in respect of the deposit: Provided that nothing contained in this sub-section shall affect the right or claim which any person may have against the person to whom any payment is made under this section.]"
19. Per contra, the Learned Counsel for the defendant has referred to the judgment of Hon'ble Delhi High Court in Mrs. Leelawati Singh & Anr. v. State & Ors., 75(1998) DLT 694 to argue that the nominee has only right to receive the money to be distributed amongst the LRs of the deceased and he has not got any absolute right to deal with the money. It has been held by Hon'ble Delhi High Court in Mrs. Leelawati Singh's case (supra) as follows :
"36. In the light of the categorical pronouncements by the Supreme Court about the nomination and in the light of the provisions of the Banking Regulations Act, 1949, which have been extracted above, I do not find any merit in the submission made by Mr. Pramod B.Agarwala, the learned Counsel for the third respondent. Therefore, I have no hesitation in coming to the conclusion that all the monies payable to the nominees in respect of the transactions by late Harikishan Singh would form part of his estate and would come to the common pool to be made available for distribution among his heirs under the provisions of the Hindu Succession Act,1955. Accordingly, the application for grant of Letters of Administration is allowed to the above extent."
20. In the light of law summarized, after considering several judicial pronouncements of Hon'ble High Courts and Hon'ble the Supreme Court, by Hon'ble the Delhi High Court in Leelawati Singh's case (supra), I do not find any merit in the arguments advanced by counsel for the plaintiff. Keeping in view the facts and circumstances of the present case, I may hold that the plaintiff cannot claim his exclusive right over all the moneys payable to the plaintiff, as nominee, in respect of the fixed deposits by David Sargunma and to contend that the defendant has no right over that money.
CS No. 2492/17 Franklin David v. Gladstone David Page no. 8 of 11
21. Further, in para 14 of the affidavit Ex.CW1/A of evidence of the plaintiff, he has stated as follows:
"That as per the aforesaid oral family settlement between the defendant and the plaintiff the amount of FDR no.776617703 and 776617464 dated 14.12.2008 being a sum of Rs.10 lakhs each had been transferred by the Plaintiff, to the joint account no.817996058 of the Plaintiff and Defendant at Indian Bank, G-41, Cannaught Place, New Delhi on 24.01.2009. It is submitted that out of above, the amount of Rs.10 lakhs has been again fixed as FDR by the Plaintiff in his name and only a sum of Rs.10,00,000.00 has been kept in the aforesaid amount for the use of the Defendant herein as agreed between the parties. A copy of bank statement is exhibited as Exhibit CW1/3. A copy of FDR in the name of Plaintiff is exhibited as Exhibit CW1/4."
22. As per the above statements made by the plaintiff in his affidavit of evidence, the amount of Rs.10 lakhs which was transferred to the joint account of the plaintiff and the defendant was agreed to be used by the defendant. In his cross-examination, the plaintiff has also admitted that all the legal representatives of his deceased father are having equal rights in all the assets left by his deceased father. Admittedly, David Sargunma had died intestate. All the legal heirs of the deceased David Sargunma have inherited the estate left by him. Therefore, the nomination in the Fixed Deposits of the Late David Sargunma would not amount to a Will in favour of the plaintiff and he would only get the right to receive the amount and he holds the amount for the benefits of legal heirs of his father.
23. Furthermore, in the cross-examination of the plaintiff, he has admitted that he had started working since September 2014. Therefore, on the date of alleged loan made to the defendant on 24.01.2009, the plaintiff was having no capacity to advance loan of Rs.10 lakhs to the defendant. The money which was transferred to the joint account of the plaintiff and the defendant was left by their deceased father to which the plaintiff as well as the defendant were entitled.
CS No. 2492/17 Franklin David v. Gladstone David Page no. 9 of 11
24. Again, in the plaint, it is admitted case of the plaintiff that after the death of father of the plaintiff and the defendant, the defendant was working and contributing in the domestic expenditure. This fact has also been reiterated by the plaintiff in his evidence affidavit. Till the death of his father and even till September 2014, as per the case of the plaintiff himself, he was not contributing anything towards the family expenses. In these facts, I have failed to understand how can he claim to have given a loan to the defendant. Admittedly, the plaintiff has not produced any document to prove the loan. The plaintiff has claimed that the loan was given to the defendant as per the family settlement but there is no material produced on behalf of the plaintiff to prove the family settlement.
25. In view of the above discussion, these issues are decided in favour of the defendant and against the plaintiff.
ISSUES NO. 5Whether the suit is barred by limitation?
26. Onus to prove this issues was placed on the defendant.
27. But for the above-stated discussion, even if it is assumed, as per the plaint, that a loan was advanced to the plaintiff, it was advanced on 24.01.2009 for a period of 2-3 years. The suit has been instituted on 26.04.2017 which is apparently time-barred. Hence this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO. 4Whether the suit is bad for non-joinder of necessary parties?
28. Onus to prove this issues was placed on the defendant.
CS No. 2492/17 Franklin David v. Gladstone David Page no. 10 of 11
29. In view of my findings on issues discussed above, I refrain from giving findings on this issue.
ISSUE NO. 5Relief?
30. In view of my findings on Issue no.1, 2 and 3, the plaintiff is not entitled to the relief. This suit is dismissed with costs. Decree sheet be prepared accordingly.
DR Digitally signed
by DR RAKESH
RAKESH KUMAR
Date: 2023.01.03
Pronounced in the Open Court KUMAR 16:42:06 +0530
on 02nd January 2023 (Dr. RAKESH KUMAR)
ADDITIONAL DISTRICT JUDGE -03
(CENTRAL) THC/DELHI /02.01.2023
CS No. 2492/17 Franklin David v. Gladstone David Page no. 11 of 11