1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2679 OF 2008 IN SUIT NO.3241 OF 2003 Virendar J. Mishra .. Plaintiff Versus Manoj Surendra Mishra & Ors. .. Defendants and Mrs.Chandrakanta S. Mishra & Anr.. Applicants Mr.Simil Purohit i/b.R.A.Khan for applicants Mr.Sanjay Jain with A.Aggarwal for plaintiff Mr.Y.R.Shah for defendant Nos.2(a) to 2(d), 4 and 5. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th October 2008 P.C. . This is a motion by the applicants and the following reliefs are claimed thereunder:- (a) that delay if any in taking out the present notice of motion be condoned; 2 (b) that the order dated 22nd February 2006 along with consent term filed therein (being Exh.C) be recalled and after going through its legality the said order be set aside and/or cancelled; 2. The matter was argued with regard to the Svings Account No.993 in Indian Overseas Bank, more particularly described in clause 11 of the consent terms. The said clause reads as under:- "11. It is further agreed by the parties hereto that the said S.B.Account No.993 is directed to be closed and the entire amount lying and being in the said Saving Bank Account No.993, with Indian Overseas Bank, MRC Extension Counter, Mumbai be transferred and/or paid by the said bank to the aforesaid seven legal heirs, each sharing 1/7th of the entire amount. It is agreed that on production of a certified copy of the consent terms, the said Indian Overseas Bank is directed to carry out aforesaid directions, irrespective of, whether or not, the SFD’s have been matured, subject to the bank paying interest in the said accounts, as per their rules." 3. Mr.Purohit appearing in support of this 3 application urged that this account, as per the communication of the Bank was operated by Ms.Poorna Devi Mishra/ Dr.S.J.Mishra - applicant No.1. Dr.S.J.Mishra is husband of applicant No.1 and Ms.Poorna Devi Mishra is mother in law. It is contended that this account has been dealt with by the plaintiffs and the defendants without the applicants being impleaded as parties to the suit and knowing fully well that the applicants’ name appear in the Bank records. In such circumstances, clause 11 cannot be held to be conclusive of the rights of the applicant insofar as the said Bank account is concerned. 4. As far as proceedings before the Revisional Authority with regard to the flat is concerned, my attention is invited to a statement made in the affidavit that an application for restoration of the revision application was made before the Divisional Joint Registrar and the Divisional Joint Regr. has allowed the 4 application. In such circumstances, I am of the opinion that once the revision application is restored to file, then, the revision application will have to be pursued by the parties in accordance with law and all pleas of the parties to the revision application are kept open. 5. As far as bank account is concerned, although, it is urged that it exclusively belongs to the applicants, equally it is contended by Mr.Jain that defendant No.1 has put up the applicants and he is absent, though served. He is son of applicant No.1 and is residing with him. In such circumstances, it cannot be said that applicant No.1 was not aware of the consent terms or that the applicant No.1 has any independent right in the said account. 6. After the matter was argued for some time, I expressed my view to Mr.Purohit appearing for applicant that in the limited jurisdiction 5 that is available to this Court, in the present proceedings, it will not be possible to go into rival contentions. The remedy of the applicant is to institute their independent, substantive proceedings and claim such rights with regard to the savings account in question as are permissible in law. 7. Mr.Purohit does not seriously dispute the fact that the applicants have another remedy available to them in law but seeks appropriate clarifications from the Court to enable the matter to be resolved by recourse to the legal remedy. In my view, merely because the notice of motion is disposed of as not maintainable and holding that the applicants’ remedy lies in instituting their own independent proceedings, does not mean that this Court has expressed any opinion with regard to the claims of the parties to the said bank account and it would be open for the applicants as and when they institute such 6 proceedings to assert their claim and needless to state that it would be adjudicated on its own merits and in accordance with law. The claim would be adjudicated without being influenced by the observations in this order. 7. To enable the applicants to institute substantive proceedings, it is directed that ad-interim order dated 22nd September 2008 restraining defendant Nos. 2 and 3 and all heirs and legal representative of the deceased from operating the savings bank account No.993, Indian Overseas Bank, M.R.C. Extn.Counter, Bombay Hospital, Mumbai shall continue for a period of four weeks. If the proceedings are not initiated within this time, ad-interim order to stand vacated without further reference to court. Notice of motion is disposed of. 7 (S.C.Dharmadhikari, J)