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SCA/96/3608 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9636 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DIVYA
VASANT DESAI - Petitioner(s)
Versus
STATE
BANK OF INDIA - Respondent(s)
=========================================================
Appearance :
MR
KH KAJI for Petitioner(s) : 1,MR SUDHIR M MEHTA
for Petitioner(s) : 1,
MR SH ALMAULA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 23/09/2008
ORAL
JUDGMENT
Rule.
Mr. Almaula, learned counsel for the respondent waives notice of
Rule.
With
the consent of learned advocates appearing for both the sides, the
matter is finally heard.
The
short facts of the case appears to be that late Shri Vasant J.Desai
had opened a PPF A/c on 05.03.1989 with the respondent Bank and at
the relevant point of time, Mrs. Kiranben, who was the wife of late
Shri Vasant J.Desai was shown as the nominee. On 30.06.1989, on
account of the death of Mrs. Kiranben, her name was deleted as the
nominee. It further appears that simultaneously, on 30.06.1989, the
name of three persons were included as the nominee, viz. Vanilaben
Jayantilal Desai, Anjana Chandrakant Majmudar & Roshni
Mohanprasad Majmudar. It appears that thereafter, late Shri Vasant
J. Desai, on 13.09.1991, got married with Mrs.Divyaben and on the
same day, her nomination is shown as entered in the passbook of PPF
account. Shri Vasant J.Desai expired on 22.04.2008. The petitioner
whose name appeared as the nominee in the PPF account, applied to
the respondent Bank for release of the amount to her as the nominee.
However, the respondent Bank declined the same. It is under these
circumstances, the petitioner has approached to this Court by
preferring the present petition.
It
deserves to be recorded that this Court on 08.09.2008, after hearing
both the sides, had passed the following order:
?S1. Pursuant
to the order passed by this Court, Mr. Vijay Bichewar, Chief Manager,
is present.
2. Heard
Mr. Kaji appearing with Mr. Mehta learned Counsel for the petitioner,
and Mr. Almaula learned Counsel for the respondent bank.
3. Prima
facie, it appears that as per the petitioner, she is wife of the
deceased, and also the first degree legal heirs, and there is no
other legal heirs then petitioner of deceased Vasant J Desai. It also
prima facie appears that there is already entry in the passbook of
PPF account for nomination of the petitioner on 13.9.1991, however,
the contention of the respondent bank is that no record exist for
such nomination in the bank, and therefore the respondent bank is not
confirming the said nomination. The aforesaid is coupled with the
circumstance that as per the respondent bank, even in respect of
earlier nomination of three
persons, which has been subsequently cancelled, the record
does not exist with the bank. If such is tested on the ground of
genuineness of the defence, it further appears
that earlier nomination has been made in the passbook by the officer
of the bank by putting initial and the same can be treated as
final, unless any cogent material is brought to the notice of this
Court, that the person had no authority in respect
of other three persons, whose nomination was accepted and cancelled.
There are already entries for such purpose, but merely because
the bank is not having record, would not invalidate
the nomination, if already in existence. Applying the same
principles to the nomination made in favour of the petitioner, as
such would prevail, even if the bank may not be in a position
to trace the record.
4. Mr.
Almaula learned
Counsel for the respondent bank further submitted that as per the
scheme of the PPF, form No. G is required to be submitted, by the
person, seeking withdrawal of the amount, and details with the form
No. G, inter alia includes succession certificate/letter of
administration, which has not been submitted by the petitioner and
therefore, bank could not release the amount, since the balance is
exceeding Rs. 1 lac.
5. The
examination of the said contention shows that form No. G is common
for the nominees, as well for the legal heirs. If the nominees are
to be held good for entitlement of the withdrawal of the
amount, there would not be any requirement to produce the succession
certificate/letter of administration. It is only in cases where the
person is claiming withdrawal as legal heirs, who is not nominee, the
requirement may be for production of the succession
certificate/letter of administration. When the decease during life
time has nominated the particular person for entitlement of the
amount for operating account
or withdrawal thereof,
such is to prevail in case, when the withdrawal is to take place,
based on such nominations.
Therefore, Clause III requiring
production of such succession certificate/letter of
administration, may not apply to the case of the petitioner, since
the withdrawal is applied as nominee, and not as the legal heir,
though the petitioner who is nominee is also legal heir.
6. It
appears that with a view to allay any apprehension on the part of the
bank on the ground of the genuineness of the nomination, if public
advertisement is given in any Gujarati Newspaper having wide
circulation in the area of Ahmedabad by the petitioner, same would be
sufficient.
7. Considering
the facts and circumstances of the present case, in the event there
is no objection raised in response thereto, petitioner could be said
as entitle for withdrawal of the amount. However, if any objection is
raised, Court may pass appropriate orders examining genuineness of
such objection or otherwise.
8. In
any case the bank has to release the money and therefore, it would be
just and proper to direct the bank to deposit the amount with this
Court, which would enable this Court to pass effective final orders,
in the event, petitioner succeeds in establishing the claim.
9. Hence,
by interim direction it is ordered that the respondent bank shall
deposit the amount with this Court with the accrued interest lying in
the account, within a period of one week. The petitioner shall get
advertisement published in the newspaper either in Gujarat
Samachar/Divya Bhaskar/Sandesh declaring that the petitioner has
claimed amount lying in the PPF account as the nominee of deceased
Vasant J Desai, and any person having objections, may submit
objections in the proceedings of this petition on the next date or
within ten days from the publication.
10. S.O.
to 22.9.2008, for passing further orders and reporting
compliance. To be listed on first board.??
Mr.Kazi,
learned counsel appearing for the petitioner submitted that pursuant
to the aforesaid order passed by this Court, the affidavit has been
filed by the petitioner on 15.09.2008 stating that the public
advertisement was given in ?SSandesh?? daily newspaper, copy
whereof is also produced with the said affidavit. The aforesaid
advertisement shows that the petitioner has claimed the right as the
nominee in the PPF account of late Mr.Vasant J. Desai and, if any
person has any objection to the claim of the said amount, he may
file the objection in the present proceedings before this Court
within 10 days from the publication of the notice. There is neither
any objection received from any person nor as per the statement made
by the learned counsel for the petitioner, the petitioner or the
respondent Bank has received any objection from any person.
In
view of the above, it can be concluded that no one has any objection
in the right claimed by the petitioner as nominee in the PPF account
of late Shri Vasant J.Desai.
As
such, in the above referred order dated 08.09.2008, the objection
raised on behalf of the Bank was considered to the effect that no
succession certificate was produced by the petitioner for
disbursement of the amount. It was observed by the Court that the
question of production of succession certificate can arise in the
case of a person who is claiming right as successor, but is other
than the nominee in the Bank account. As in case of the petitioner,
her name was already included as nominee, the question of production
of succession certificate would not be required.
The
aforesaid is coupled with the circumstance that as per Section 45ZA
of the Banking Regulation Act, the right would flow in favour of the
nominee on the death of the depositor and the nominee is entitled to
get all the rights of the depositor, as the case may be, in relation
to such deposit to the exclusion of all other persons, unless the
nomination is varied or cancelled in the prescribed manner. It is
true that the PPF is a special scheme of Government of India, but as
observed earlier, the requirement for production of succession
certificate would not be attracted in case of nominee and the
provisions of the Banking Regulation Act can be taken as the guiding
effect for examining the rights of the nominee to receive the amount
in the Bank account under the PPF Scheme. If such is considered, it
can be said that the nominee will be entitled to the amount.
Additional
circumstance as referred to hereinabove in the present case is that
in the public advertisement in the newspaper having circulation in
Gujarat has been given, but none has objected to the status of the
petitioner as nominee of late Shri Vasant J. Desai.
In
view of the aforesaid, the petitioner in the capacity as the nominee
in the PPF account of late Shri Vasant J. Desai would be entitled to
receive the amount and so will be the obligation on the part of the
respondent Bank to pay the amount to petitioner.
Therefore,
it is hereby directed that the Bank will be required to pay the
amount lying as credit balance in the PPF Account No.10295620670 of
late Shri Vasant J. Desai. As pursuant to the interim order passed
by this Court, the respondent Bank has already deposited the total
sum lying in the PPF Account of Rs.20,30,916.49 ps with this Court,
the petitioner in view of the earlier direction will be entitled to
withdraw the same from this Court by A/c. Payee cheque.
The
petition is allowed to the aforesaid extent. Rule made absolute
accordingly. No order as to costs.
(JAYANT PATEL, J.)
*bjoy
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