JIGNESH CHHOTALAL DAVE Vs. BANK OF INDIA MANAGER

JUDGEMENT

(1.) Appellant is the original plaintiff who had filed Special Civil Suit No. 67 of 2004 in the Court of the learned 9th Additional Senior Civil Judge at Jamnagar for directing the respondent No.1 bank to hand over 91,000 Sterling Pounds, the value of which is equivalent to the Indian Currency of Rs.70,00,000.00 which were lying with the respondent No.1 Bank in two different NRI Deposits in the name of the deceased Dhirajlal Manishankar Dave. It is the case of the appellant that the elder brother of the appellant's father namely deceased Dhirajlal Manishankar Dave was residing in Great Britain but during the last one year when he had come in India, he resided with the appellant and the appellant was looking after him. It was further alleged in the plaint that the deceased had deposited 91000 Sterling Pounds in the Bank of India NRI Account on 14.3.2003 and the deceased had nominated the appellant to recover the said amount and also orally talked the appellant to receive the said amount. However, after the death of the deceased Dhirajlal Manishankar Dave, when the appellant approached the bank to release the said amount, the respondent No.1 bank did not pay the said amount and, therefore, the appellant was required to serve notice, however, still, the appellant was not paid the said amount and, therefore, the suit was filed by the appellant before the trial Court.

(2.) The suit was resisted by the respondent no.1 bank by filing the written statement at Exh. 10 inter alia pointing out that the deceased Dhirajlal Manishankar Dave had executed will during his life time and appointed executor who had approached the UK Court and the said executor had raised objection through the attorney and the bank therefore asked the plaintiff that the plaintiff should approach the Indian Court for realizing the amount in question.

(3.) During the pendency of the suit before the trial Court, an application was made by the Legal heirs of the deceased Dhirajlal Manishankar Dave for being joined as party defendants and were also joined as party defendant No.2 and 3 in the suit and they also filed their written statement at Exh. 27. They stated that the deceased Dhirajlal Manishankar Dave was father in law of respondent No.2 and father of respondent no.3 and on the basis of the will in their favour, they had obtained Probate from the Oxford High Court on 7.5.2003 and become entitled to receive the amount. They have also stated that the Nominee has got no right to the suit amount because the nominee is not the legal heir under the provisions of the Indian Succession Act and, therefore, the suit was required to be dismissed.