IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.02.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY SECOND APPEAL NO.122 OF 2003 State Bank of India Rep. By its Branch Manager Tirupapuliyur Cuddalore – 2 .. Appellant /1st Defendant Vs 1.S.Meenakshi 2.Minor Muthukumaran 3.Minor Chockalingam R-2 & R03 declared as major vide order dated 18.11.2009 made in C.M.P.No.1542/2009 4.S.Periyanayaki .. Respondents / Plaintiff SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 29.10.2001 made in A.S.No.14 of 2000 on the file of the Principal Sub Judge, Cuddalore reversing the Judgment and Decree dated 29.10.1999 passed in O.S.No.271 of 1995 on the file of the learned Additional District Munsif, Cuddalore. For Appellant : Mr.P.Sukumar For Respondents : Mr.S.K.Rakhunathan J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No.14 of 2000 on the file of Principal Sub Judge, Cuddalore reversing the Judgment and Decree in O.S.No.271 of 1995 on the file of District Munsif Court, Cuddalore https://hcservices.ecourts.gov.in/hcservices/ 2. The first defendant in the suit is the appellant in the above second appeal. The respondents are the plaintiffs in the suit. The second defendant, who is the father of the respondents 1 to 3 and the husband of the fourth respondent, has not been made as a party in the Second Appeal. 3. The plaintiff filed the suit in O.S.No.271 of 1995 on the file of District Munsif Court, Cuddalore for mandatory injunction directing the defendants to redeposit the fixed deposits with accrued interest in the name of plaintiffs 1 to 3. 4. The brief case of the plaintiffs in the suit are as follows:- (i) According to the plaintiffs, the second defendant in the suit is the husband of the fourth plaintiff and the plaintiffs 1 to 3 are their minor children. The second defendant and fourth plaintiff were not in good terms and they were living separately. The plaintiffs 1 to 3 are living with their mother, the fourth plaintiff. (ii) According to the plaintiffs, in a family arrangement, the second defendant received a sum of Rs.1,05,000/- from the father of the fourth plaintiff to deposit the said amount in the name of the minors in fixed deposit. Accordingly the amount was deposited with the first defendant bank on 15.9.1992 for a period of three years in the names of the plaintiffs 1 to 3 separately, represented by their father and natural guardian, the second defendant. In all the fixed deposits, endorsements were made that the said deposits shall be automatically renewed for a period of 10 years from the date of deposit. While so, the fourth plaintiff was given to understand that the defendants colluded together with ulterior motive, whereby, the first defendant allowed the second defendant to withdraw the above said fixed deposit amounts after transferring the same to Coimbatore branch. (iii) According to the plaintiffs, the second defendant is not entitled to withdraw the amount. He has wrongfully withdrawn the amount and misappropriated the same by colluding with the first defendant. Since the fixed deposit amounts have not yet matured and are payable to the minors only after they attain majority, the second defendant is not entitled to withdraw the amount. Therefore, the plaintiffs filed the suit. 5. The brief case of the first defendant is as follows: (i) According to the first defendant, three fixed deposits were made in the name of minor plaintiffs represented by their father and natural guardian, the second defendant. According to first defendant, amount payable to M.Subramaniam, the second defendant and S.Periyanayaki, the fourth plaintiff payable to former or survivors jointly. At their request, the fixed deposits were https://hcservices.ecourts.gov.in/hcservices/ taken by the first defendant and the fixed deposits were handed over to them. According to the first defendant, he had no idea about the intention of the parties, when the deposit receipts were made. As per the terms and conditions of the fixed deposit receipts, the money is payable to the minor represented by father and natural guardian M.Subramaiam(second defendant) and on the death of the minor, to the Survivors M.Subramanian (second defendant) and S.Periyanayaki(4th plaintiff). (ii) According to the first defendant, at the request of the second defendant, the fixed deposit amounts were transferred to Coimbatore Branch. Subsequently on enquiry, the first defendant is given to understand that the second defendant has withdrawn the amount under the fixed deposits as he is entitled to as per the terms and conditions of the fixed deposits. The Coimbatore Branch has also paid the amounts to the second defendant after complying with the bank formalities. Therefore, the first defendant is not liable to redeposit the amount. Therefore, first defendant prayed for dismissal of the suit. 6. The brief case of the second defendant is as follows: (i) According to the second defendant, the suit has not been properly valued for the purpose of court fees and jurisdiction. According to the second defendant, the amounts deposited on 15.9.1992 is payable to the former or survivor. The amount was not paid by the father of the plaintiff and the amounts belong to him. The fourth plaintiff has given a stamped receipt on 16.3.1994 for the receipt of a sum of Rs.1,30,000/-. The suit was filed at the instigation of the fourth plaintiff's father. Therefore, the second defendant prayed for dismissal of the suit. 7. Before the trial court, on the side the plaintiffs, two witnesses were examined and 3 documents, Ex.A-1 to Ex.A-3 were marked and on the side of the defendants, the Manager of the first defendant's bank was examined as D.W.1 and 15 documents, Ex.B-1 to Ex.B-15 were marked. 8. The trial court after taking into consideration, the oral and documentary evidences of both sides, decreed the suit as against the second defendant and dismissed the suit as against the first defendant's bank. 9. Aggrieved over the judgment and decree of the trial court, the plaintiffs preferred appeal in A.S.No.14 of 2000 on the file of Principal Sub Judge, Cuddalore and the lower appellate court also after taking into consideration the materials available on record, dismissed the appeal filed by the second defendant in A.S.No.3 of 2000 and allowed the appeal filed by the plaintiff in A.S.NO.14 of 2000. https://hcservices.ecourts.gov.in/hcservices/ 10. Aggrieved over the judgment and decree of the lower appellate court, the first defendant has filed the above second appeal. As against the dismissal of the appeal filed by the second defendant in A.S.No.3 of 2000, the second defendant did not file any appeal. 11. Heard Mr.P.Sukumar, learned counsel appearing for the appellant and Mr.S.K.Rakhunathan, learned counsel for the respondents. 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- "1.When the admitted fact being that at the time of filing suit itself the fixed deposit receipts at appellant's Tirupapuliyur Branch was transferred to Coimabtore Branch and the amounts were withdrawn by the second defendant from Coimbatore Branch; whether the suit for equitable relief of mandatory injunction to redeposit the fixed deposit amount can be sought or enforced as against the appellant Tirpapuliyur Branch? 2. While the issue of alleged collusion between the appellant bank at Tirpapuliyur and the second defendant (father of plaintiffs) having not been framed and findings on the said issue not having been rendered, whether the lower appellate court is correct on fastening liability and passing decree of mandatory injunction on the part of the appellant? (c) Whether the payment of liquidated sum due under Fixed Deposit receipt made to one person can be restored by way of equitable and discretionary relief of mandatory injunction? (d) Is not the suit liable to be dismissed for non joinder of necessary party, namely, the Coimbatore Branch of the Bank which has got separate entity as that of the appellant's branch?" 13. On a careful consideration of the materials available on record and the submissions made by both the learned counsels, it could be seen that the total sum of Rs.1,05,000/- was deposited with the appellant/first defendant's bank in the name of the respondents 1 to 3, who were minors, represented by their father, the second defendant. The fixed deposits were made on 15.9.1992 for a period of three years subject to renewal for a total period of 10 years. Admittedly, Exs. B1 to B3 deposits were made in the name of minors represented by the second defendant, who is the father of the minors and husband of the fourth respondent herein. Due to some misunderstanding, the second defendant, father of the minors and https://hcservices.ecourts.gov.in/hcservices/ fourth respondent, mother of the minors, were living separately. Therefore, minor children/respondents 1 to 3 were living with the fourth respondent/mother. Subsequent to the deposits made on 15.9.1992, the second defendant, father of the minors transferred the fixed deposits to Coimbatore Branch and pre-closed the amount and withdrew the amounts from Coimbatore Branch. 14. Learned counsel for the appellant bank relied upon Rules 18 and 19 of the Circular issued by the State Bank of India. It says that in special circumstances, the bank may on receipt of a written application from the depositor in its absolute discretion, make premature payment of proceeds of the deposit. But, in the case on hand, there is nothing on record to show that there was any special circumstances for the premature closure of the fixed deposits. Apart from that the appellant has not produced any document to show that the plaintiff has requested for the premature closure of the deposits for the welfare and benefit of the minors. In the absence of any such request, the appellant/bank should not have allowed the second defendant to close the fixed deposits standing in the name of minors prematurely. When the amounts were deposited in the name of minors, it should be utilized only for the welfare and benefit of the minors. But in the present case, absolutely there is nothing on record to show that the appellant allowed the second defendant to withdrew the amount prematurely for the benefit of the minor children. 15. Though the trial court dismissed the suit as against the appellant herein, the lower appellate court reversed the finding of the trial court and decreed the suit as against the appellant/first defendant also. As stated earlier, the appellate/first defendant failed to give any acceptable reason for allowing the second defendant to withdraw the fixed deposit amounts prematurely. The action of the appellant only creates a suspicion in allowing the second defendant to withdraw the amount. Since the appellant had allowed the second defendant to withdraw the minors amount without any special circumstances as mentioned in rules 18 and 19 of the circular, the lower appellate court has rightly decreed the suit as against the appellant also. 16. As against the judgment and decree of the trial court the second defendant also filed appeal in A.S.No.3 of 2000 on the file of Principal Sub Judge, Cuddalore and the lower appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. However, the second defendant did not file any appeal as against the dismissal of A.S.No.3 of 2000. Therefore, the decree as against the second defendant has become final. 17. In these circumstances, I find no ground much less substantial question of law to interfere with the judgment and decree of the lower appellate court. The above second appeal is https://hcservices.ecourts.gov.in/hcservices/ liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rj To 1.The Principal Sub Judge, Cuddalore. 2.The Additional District Munsif Court, Cuddalore 3.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.S.K.Rakhunathan, Advocate, SR.7637 1 cc To Mr.P.Sukumar, Advocate, SR.7956 S.A. No.122 of 2003 KSK(CO) sra 15.02.2010 https://hcservices.ecourts.gov.in/hcservices/