Allowed

Mrs. Tejashree Prakash Vaidya v. Mrs. Vaijayanti Prabhakar Vaidya and Anr.

Bombay HC20 Mar 2013WP/2462/2013

Case brief

AI extract

What is this about?

The High Court set aside an order rejecting a chamber summons for impleadment. It held that the petitioner, widow of a deceased joint hirer, must be impleaded as a defendant in a suit by the surviving joint hirer to access a locker, due to pending criminal allegations against her and rights arising from joint tenancy terms.

What did the court decide?

Impugned order set aside; Chamber Summons allowed; Petitioner to be impleaded as defendant; Plaintiff to amend plaint within 3 weeks.

Mrs. Tejashree Prakash Vaidya Vs Mrs… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2462 of 2013

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Tejashree Prakash Vaidya ) Age-46 yrs. Occu: Business ) R/at. B-105, Vicky Apartment CHS ) Ltd. Opp Tata Press, P. Balu Marg, ) Prabhadevi, Mumbai 400 025 )..Petitioner

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versus 1. Mrs. Vaijayanti Prabbhakr Vaidya ) Age-72 yrs. Occ Housewife ) R/at 3/17, Anand Niwas, ) Mangalwadi, JSS Road, Girgaon, ) Mumbai 400 004 ) 2. Bank of Maharashtra thorugh ) its Manager, having its branch at ) Prabhadevi, ground floor, Amit Tata ) CHS Ltd. Murari Ghag, Prabhadevi, ) Mumbai 400 025 )..Respondents

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Mr. J. D. Khairnar for the Petitioner

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Mr. Jeetendra Ranawat i/b Mr. Waquar Ahmed for the Respondent No.1 Mr. Sachin Joshi for the Respondent No.2

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CORAM:- R M SAVANT, J DATED :- 20^th MARCH, 2013.

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ORAL JUDGMENT

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1 Rule. With the consent of the parties made returnable forthwith and heard.

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2 The above Writ Petition takes exception to the order dated 13-12-

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2012 passed by the Learned Judge of the Bombay City Civil Court, by mmj 1/12

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which order, the Chamber Summons being No.1144 of 2012 filed by the Petitioner herein for her impleadment in S.C. Suit No.2197 of 2012, came to be rejected.

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3 The facts necessary to be cited for adjudication of the above Petition can be stated in brief thus:

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The Respondent No.1 herein is the original Plaintiff who is the mother in law of the Petitioner herein. The Respondent No.1 has filed the suit in question and the principal relief claimed therein is as under:

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“(a) that the Hon’ble Court may be pleased to direct the Defendant to allow only the Plaintiff to Safe Deposit Locker No.225 in their Prabhadevi Branch and further direct the Defendant, their servant and agents to allow the Plaintiff to remove their belongings from the said Locker.”

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The relief sought is therefore the right which the Plaintiff seeks in respect of the locker No.225 in the Prabhadevi Branch of the Respondent No.2 Bank. In so far as the said locker is concerned, the said locker was hired by the Respondent No.1 and her son one Prakash Vaidya and therefore stood in the name of the Respondent No.1 and her son Prakash Vaidya and they had opted to operate it “jointly”. The said Prakash Vaidya has expired on 24-12-2006.

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4 The record discloses that the Respondent No.1 has lodged an FIR against the said Prakash Vaidya and the Petitioner with the V. P. Road police mmj 2/12

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station, Mumbai in respect of the offences allegedly committed under Sections 420 465, 467, 471 and other provisions which have been mentioned in the FIR. It seems that the said Criminal Case is pending in the Court of the Learned Additional Metropolitan Magistrate at Girgaum.

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5 In so far as the instant Suit is concerned, the Plaintiff by way of paragraphs 4 to 7 has made averments and claimed that the stridhan which she had received has been kept in the locker in question i.e. Safe Deposit Locker No.225 with the Respondent No.2 bank. In paragraph 7 of the plaint. The Plaintiff has alleged that her son Prabhakar and his wife i.e. the Petitioner has forcibly taken away the key of the said locker No.225 with dishonest motive and false intention only to usurp the said stridhan. It has been further averred in paragraph 7 that the Plaintiff has filed the said criminal case which bears No.946/INR/246 which is in process in Girgaum Court. The averments made in paragraphs 4 to 7 concern the allegations against her son Prakash and the Petitioner. In paragraph 8, the Plaintiff has averred that she is paying the maintenance of the said Safe Deposit Locker No.225 to the bank and that she has an exclusive right to access the said locker because there is no nominee or other survivor of the said locker. The Plaintiff has thereafter made allegations against the bank by stating that the Defendant is intentionally and purposely with malafide intention is not

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allowing the Plaintiff to access the said deposit locker independently. It is further averred that the Plaintiff has addressed a communication to the Branch Manager which is not acted upon. In paragraph 9 the Plaintiff has stated that Defendant bank is acting contrary to the terms and conditions of the locker with malafide intention not allowing the Plaintiff to access the said locker. To the said Suit, the Plaintiff had only arrayed the bank as a Defendant.

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6 The Petitioner herein considering the relief sought in the Suit and considering the fact that her late husband Prakash Vaidya was the joint hirer applied for her impleadment in the Suit. The impleadment was sought by the Petitioner also on account of the averments made in the plaint as also in view of the fact that in the Criminal case the Plaintiff has deposed that the Petitioner herein and her husband Prakash Vaidya have kept her gold jewellery in the said Locker No.225 with the Respondent No.2 bank. The Petitioner claimed her impleadment on the ground of she being the heir of the said Prakash Vaidya and would therefore be entitled to the share in the husband’s property which would include the said Locker No.225.

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7 The said Chamber Summons was opposed to on behalf of the Plaintiff. It was contended that the Petitioner could not be impleaded on

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the ground of being the legal heir of her late husband as only the surviving joint holder or jointly appointed nominee has a right to make an application. It was further contended that nothing has been placed on record by the Petitioner to show that anything belonging to her husband is kept in the said locker. It was denied that the Petitioner is a necessary or a proper party to the Suit in question. The said Chamber Summons was heard by the Learned Judge of the City Civil Court, Bombay who by the impugned order dated 13-12-2012 has dismissed the said Chamber Summons. The reading of the said order discloses that at the stage of considering the application for impleadment, the learned Judge has come to a conclusion that the property lying in the locker is the stridhan of the Plaintiff and therefore the Applicant has no right and concern with the locker in question. Thereafter the Learned Judge proceeds to consider the application on the basis of the terms and conditions on the basis of which the locker has been hired and on such consideration reached a conclusion that in case of death of either of the party, the survivor shall be entitled to access the safe deposit locker. In the concluding part the Learned Judge again reiterates that admittedly the Plaintiff has specifically come with the case that the suit property has been given to her as stridhan. As indicated above, it is the said order dated 13-12-2012 passed by the Learned Judge

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of the City Civil Court, which is impugned in the present Petition.

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8 Heard the learned Counsel for the parties.

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9 The Learned Counsel Mr. Khairnar appearing for the Petitioner

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would reiterate the case of the Petitioner in the said Chamber Summons No.1144 of 2012. The Learned Counsel would contend that considering the relief sought in the Suit which is in respect of the operation of the locker bearing No.225, the impleadment of the Petitioner who is the heir of one of the joint hirers i.e. Prakash Vaidya was required to be allowed. The Learned Counsel would draw my attention to the averments made in the plaint and especially paragraphs 4 to 7, the gist of which has already been adverted to in the earlier part of this order. The learned Counsel would contend that in view of the allegations made in the said paragraphs, the Petitioner has a right to be impleaded in the Suit as otherwise the allegations would go un-controverted. The Learned Counsel would contend that the findings recorded in the present suit would have also some consequences as far as the criminal case filed against the Petitioner and her late husband is concerned. The Learned Counsel by relying upon the terms and conditions of the hiring of the locker, would contend that it is only

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with the consent of the heirs of one of the joint hirers that the locker in question can be operated and therefore the Petitioner has a right to be

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impleaded in the suit.

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10 The Learned Counsel Mr. Joshi appearing for the Respondent No.2 bank also supported the contention raised on behalf of the Petitioner herein, based on the terms and conditions of the hiring of the locker is concerned. The learned Counsel would contend that in terms of clause (2) of the conditions, the locker can be operated only with the consent of the survivor / heirs of the joint hirer i.e. the Petitioner. The Learned counsel would contend that it is for the said reason that the bank has not permitted the Plaintiff to operate the locker after the death of her son Prakash Vaidya.

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11 Per contra the Learned Counsel Mr. Ranawat appearing for the original Plaintiff i.e. the Respondent No.1 would lay emphasis on the terms and conditions as contained in clause (2) and would contend that the survivor out of the joint hirers would be entitled to operate the locker and in view thereof the impleadment of the Petitioner is not necessary. The learned Counsel would contend that on an interpretation of the said clause, the Petitioner has no locus in so far as the Suit is concerned as the relief sought by the Plaintiff is against the Defendant Bank. The Learned Counsel sought to rely upon the Judgment of a Learned Single Judge ( R.M.Lodha J.) as his Lordship then was, reported in AIR 1997 BOM 296 in the matter of Canara Bank. Vs. Metallics Industries Ltd. & Anr, in

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support of his contention that in so far as the banking activities are concerned a third party has no locus.

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12 Having heard the learned Counsel for the parties, I have bestowed my anxious consideration to the rival contentions. The question that is posed in the above Petition is whether the Petitioner above named who is the Applicant in the said Chamber summons No.1144 of 2012 is required to be impleaded in the suit in question. The averments in the plaint, the gist of which, has been extracted herein above as can be seen, contain allegations against the Petitioner herein and her late husband Prakash Vaidya who was the son of the original Plaintiff i.e. the Respondent No.1. The allegations as can be seen are to the effect that the said Prakash Vaidya and his wife have forcibly taken away the key of the said locker No.225 with dishonest motive and false intention only to usurp the stridhan which has been kept in the said locker. The fact that the Plaintiff has filed a criminal case against her late son and the Petitioner has also been averred in the Plaint. After making the said averments the Plaintiff has sought the relief of seeking direction to be given to the Defendant to allow the Plaintiff to operate the safe deposit locker No.225 and to allow the Plaintiff

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to remove her belongings from the said locker. It is undisputed position that the Plaintiff had lodged an FIR against her late son and the Petitioner

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under Section 420 of the Indian Pendal Code and various other provisions which criminal case is pending. There is therefore merit in the contention of the Learned Counsel appearing for the Petitioner that in the light of the averments made in the plaint and considering the fact that the Petitioner herein is the heir of her husband late Prakash Vaidya, the Petitioner would be entitled to be impleaded in the Suit in question, as otherwise any finding recorded in the said Suit on the basis of the allegations which have been made in the Plaint would have far reaching consequences for the Petitioner and may even impact the criminal case which is pending against her. This is in so far as the necessity of the impleadment of the Petitioner qua the averments which are made in the plaint are concerned.

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Now coming to the aspect of the terms and conditions governing the hiring of the said safe deposit locker No.225, it is required to be noted that it is an undisputed position that the Petitioner’s husband late Prakash Vaidya was the joint hirer along with the Plaintiff. The document of hiring which is annexed to the above Petition and which has been produced before the Trial Court by the Defendant bank unequivocally points out that the said locker was to be operated “jointly”. It is in the said context that clause (2) of the terms and conditions of the hiring would have to be considered. Prima facie on a reading of the clause (2) the interpretation

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which is sought to be canvassed by the Learned Counsel appearing for the original Plaintiff i.e. the Respondent No.1 does not commend acceptance. In case of joint hirers the last five lines of the said clause (2) are relevant. In any event, since the Suit before the Trial Court is pending, this Court would not like to conclude the parties on the said aspect. Suffice it to say on the basis of clause (2) and the concluding five lines, it cannot be said that the Petitioner has no right for being impleaded in the Suit. It is on the basis of the said clause (2) that the Defendant Bank has refused to allow the Plaintiff to operate the locker. The Petitioner herein being wife of the joint hirer can be said to have a right in respect of the property of the said late Prakash Vaidya which includes the locker No.225. The issue as to whether the Plaintiff is solely entitled to operate the said locker or whether the consent of the Petitioner would be required is an issue which the Trial Court as can be seen at the stage of consideration of the application for impleadment has sought to adjudicate when the parties are yet to proceed to trial. The Trial Court has further erred in accepting the case of the Plaintiff that it is her stridhan which has been kept in the said locker No.225 when the parties are yet to lead evidence. In my view the said findings could not have been recorded by the Trial Court at the stage of consideration of the application for impleadment.

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In so far as the Judgment in the case of Canara Bank (Supra) is concerned, in my view, the said Judgment would have no application in the facts and circumstances of the present case. In the said case the Suit in question was filed by the Bank for recovery of the amount of cash credit loan granted to the Defendant therein in which Suit the workers sought to get themselves impleaded on the ground that they are necessary parties. It is in the said context the learned Single Judge held that the workers would not be necessary parties to a suit where the bank is seeking to recover the amount of the cash credit loan given to the firm. However, the instant case is a case where the heir of one of the joint hirers seeks her impleadment as the reliefs sought is in respect of the locker in question and which relief is sought by the another joint hirer.

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13 For the reasons afore stated, the impugned order would have to be set aside and is accordingly set aside. Resultantly, the Chamber Summons No.1144 of 2012 is allowed. The Petitioner who is the Applicant in the said Chamber Summons would have to be impleaded in the suit in question as a Defendant. The amendment in the plaint to be carried out by the Plaintiff within a period of 3 weeks from date as the matter is before the Trial Court today.

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14 Rule is accordingly made absolute in the aforesaid terms with parties

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to bear their respective costs. Needless to state that the suit in question would be tried on its own merits and in accordance with law uninfluenced

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by any observations made in the instant order.

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15 At this stage the Learned Counsel appearing for the Respondent No.1 applies for the stay of the instant order. In the facts and circumstances of the case, the said prayer is refused.

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(R M SAVANT, J)

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Mrs. Tejashree Prakash Vaidya v. Mrs. Vaijayanti Prabhakar Vaidya and Anr.

Case brief

What is this about?

What did the court decide?

Mrs. Tejashree Prakash Vaidya v. Mrs. Vaijayanti Prabhakar Vaidya and Anr.

Case brief

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What the court decided

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