F.A.No.678 OF 2006 AGAINST C.D.NO.574 OF 2004 DISTRICT CONSUMER FORUM-III HYDREABAD
1. Shri Shivdatrai Educational and Charitable Trust
rep. by its Trustee, Mr.M.L.Agarwal,
S/o late Shri G.R.Agarwal, aged about 69 years
Occ: Trustee, R/o 2-1-113, Tobacco Bazar
Secunderabad-003 ( A.P.)
2. Mr.Mohan Lal Agarwal S/o Sri Prahalad Rai Agarwal
Aged about 71 yrs Occ: Trustee R/o 1-9-8,
Industrial Area, Azamabad, Hyderabad-020
3. Mr.Mukundlal Agarwal S/o late Sri Sundermal Agarwal
Aged about 67 years, Occ: Trustee
R/o 2-1-41, Tobacoo Bazar, Secunderabad-003
4. Mr.Inder Karan Agarwal S/o Sri Bilasrai Agarwal
Aged about 55 years, Occ: Trustees
R/o 21-2-211, Pathergatti, Hyderabad-002
A N D
The Branch manager
Punjab National Bank
Charminar Branch, patel market
Respondent/ opposite party
Counsel for the Appellants Sri G.Venkatswamy Goud
Counsel for the Respondent Sri K.Suryanarayana
QUORUM: SRI SYED ABDHULLAH, PRESIDING MEMBER
SRI R.LAKSHMINARSIMHA RAO, MEMBER
THURSDAY THE FIFTH DAY OF NOVEMBER
TWO THOUSAND NINE
( As per R.Lakshminarsimha Rao, Member)
The appeal is filed by the unsuccessful complainant challenging the order of the District Forum-III Hyderabad in C.D.No.574 of 2004.
The facts leading to filing of the complaint are that the appellant, Sri Shivdatrai Educational and Charitable Trust had taken on hire locker no.118 on 26.7.2000 from the respondent bank having executed a deed with instructions to the respondent bank to permit any two of the four trustees who had signed the deed. The Manager of the respondent bank had not allowed the locker being operated. One of the trustees Sri Bilasrai relinquished his trust ship but he had not handed over the key of the locker by stating that it was misplaced. Therefore the appellant trust had requested the respondent to break open the locker in the presence of all the trustees. The appellant trust had got issued legal notice dated 6.4.2004 with a demand to break open the locker and make inventory of the securities kept in lock. The respondent had not given any reply. The securities kept in the locker are discharged and some of them had expired for not having been renewed. For the securities which were not renewed the appellant trust would incur heavy loss in the shape of interest which amounts to Rs.3 lakhs. The appellant trust had suffered mental agony due to the non-cooperation of the manager of the respondent in permitting them to break open the locker. Hence, the appellant filed the complaint seeking damages to the extent of Rs.3 lakhs and compensation an amount of Rs.one lakh in addition to the costs of the proceedings.
The respondent resisted the plea. It was contended that the complaint is not maintainable for non-joinder of all the trustees representing the appellant trust. The appellant trust has suppressed the material fact that as and when any account is to be opened in the name of the trust the respondent bank would obtain copy of trust deed and also resolution of the members of the trust in regard to the operation of the trust account and mode of operation thereof. As per the trust deed the affairs of the trust would be managed by the trustees whose number should not go below four at any time. In other words a minimum number of four trustees is required to operate the account of the appellant trust. On 12.12.2002 the appellant trust had informed the respondent bank that one of the trustees Mr.Bilas Rai had relinquished his trust ship and as such the existing three trustees alone are authorized to operate locker. In another letter dated 14.5.2003 signed by three trustees it was stated that one of the trustees Bilas Rai had resigned from trust and he had not handed over the key of the locker. Hence, it was requested for breaking open of the locker. The appellant has also addressed a letter dated 27.6.2003 in response to which the respondent has issued reply dated 6.3.2003 and 13.6.2003 requesting the appellant trust to furnish information regarding inclusion of any trustee as required by the terms of the trust deed. Another letter dated 28.6.2003 was also addressed to the appellant trust informing it that the composition of the trust was short of the required number as per the terms of the trust deed.
The appellant through its letter dated 3.7.2003 informed the respondent bank that it had expelled one of the trustees Sri Inderkaran and therefore left with only three trustees. Thereafter, the respondent bank had addressed letters dated 5.7.2003, 10.7.2003 and 14.7.2003 informing the appellant that as per the terms of the trust deed there should be at least four trustees and any one of the permanent trustees to the trust deed can nominate a male lenial dissident family member as trustee in his place and as such signatures of at least four trustees was required for operation of the locker. The request made by the three trustees will not be valid as per clause IV of the trust deed. Thereafter several letters dated 18.10.2003, 1.11.2003 were addressed in this regard to the appellant trust. The appellant trust had taken the matter to the higher authorities of the respondent bank and also filed a complaint before the Banking Ombudsman. After enquiry the Ombudsman by his order dated 20.1.2004 had not found any deficiency in service on the part of the respondent bank. The Ombudsman held that certain internal differences among the trustees as also that the respondent bank had to permit the operation of the locker as per the instructions given by the all the trustees. The appellant is a trustee and it cannot complain of any mental agony. The appellant had made allegations in its notice dated 6.4.2004 against the Banking Ombudsman that he had passed an exparte order against the principles of natural justice. The complaint signed by M.L.Agarwal alone is not maintainable. The complaint has to be signed and verified on behalf of the trust but not in individual name of the trustee. Co-trustees are joint owners and they must act jointly but not individually
The District Forum has dismissed the complaint holding that as per the terms of the trust deed four trustees are required to operate the locker as also the legal issues raised by the respondent bank can only be decided by a civil court.
Aggrieved by the order of the District Forum, the appellant trust has filed the appeal contending that the District Forum has failed to understand the nature and scope of the Clause V of the Trust Deed and it had not perused the trust deed, Ex.A14 as also the authorization executed by the trustees authorizing M.L.AGarwal one of the trustees to file cases against the respondent bank. It was also stated that the District Forum has failed to appreciate the order of the Banking Ombudsman.
The points for consideration are:
1) Whether the complaint filed by the appellant trust is maintainable?
2) Whether the locker hired by the appellant trust can be operated by three trustees in terms of the trust deed?
3) Whether there was any deficiency in service on the part of the respondent bank?
4) To what relief?
The District Forum has not transmitted the records in spite of a specific direction issued thereto on 13.12.2006. Hence, we proceed with the matter by perusal of the copies of the documents record made available on the record by the appellant and in the light of written arguments of both the parties.
POINT NO.1 The appellant trust at the time of its inception consisted of six trustees of whom a trustee Shivdatrai died. Thereafter the trust continued to be managed by the remaining five trustees. Mr.Bhuramal is a trustee for his life time and the other four trustees are the permanent founder trustees having power to nominate any of their respective family members. Clause No.IV of the Trust Deed Ex.A14 reads as under:
The affairs of the trust shall continue to be managed by the trustees who number shall not exceed six nor go below four at any time.
It is incorporated in the trust deed that the death or retirement of a trustee will not affect the continuance of trust as the vacancy caused in the case of founder trustee’s death will be filled in by the nominee who is appointed by the trustee during his life time. One of the trutees Sri Bilas Rai relinquished his trust ship and the trust was left with three trustees. The appellant trust had hired the locker bearing No.118 with the signatures of all the four trustees, i.e., Bilasrai, Maniklal, Mohanlal and Mukundlal. The appellant had addressed letter dated 12.12.2002 that Bilasrai relinquished his trust ship and he being no more a trustee of the appellant trust, remaining three trustees are authorized to operate the locker. Further, in the letter it was stated that Mr.Inder Karan was having business deals and account with the respondent bank. It was requested that Inder Karan cannot be permitted to operate the locker without the signature of the “existing three trustees”. It is the appellant’s version that at the time of hiring of the locker it was agreed that any two trustees can operate it. There is no evidence on record to the effect and this fact is established by letter dated 14.5.2003 addressed by the appellant trust to the respondent bank that after resignation of Bilasrai, the existing three trustees passed resolution empowering any of the two trustees to operate the locker.
In the letter dated 7.10.2003 the appellant trust had stated that the locker was hired by the trust in trust’s name with signatures of all the four trustees with instructions that any two trustees can operate. One of the trustees Bilas Rao had relinquished his trusteeship and nominated his son Inder Karan. Further, it is stated that Inder Karan expelled from the trust on 27.9.2002.
In the letter dated 21.10.2003 the appellant trust had stated that there were only three trustees existing. The relevant portion of the letter is extracted below:
The above locker was hired by this trust in the trust’s name, with signatures of all four trustees with instructions that nay two trustees can operate which please note. One of the trustees Sri Bilasrai has relinquished from the trust and nominated his son Mr.Inder Karan. Mr.Inder Karan was expelled from the trust on 27.9.2003 and in respect of this Xerox copy of relinquishment and Board resolution copy signed by all the trustees was submitted to the branch but the branch is not adopting the right view and insisted for the signatures of Mr.Bilasrai which is utterly wrong?”
Having thus the matter stood so, the appellant trust had impleaded three names as the appellants, Mohanlal Agarwal, Mukundlal Agarwal and Inder Karan in the appeal without there being any impleadment of the three such persons in the complaint. According to the version of the appellant trust in the letters relevant portion of which was extracted hereinabove, the trust as on the date of filing of the complaint was consisting of three trustees, Bilasrai having relinquished his trusteeship and Inder Karan having been expelled from the trust. Interestingly, the name of Inder Karan is added as appellant No.4 in the appeal. The appellants no.2 to 4 were impleaded as individuals in the appeal without any notice having been served on them. The appellants no.2 to 4 have not signed the appeal nor were they impleaded in the complaint. Hence, the complaint was filed without making all the trustees as complainants.
The appellant is a trust registered under Indian Trusts Act, cannot be considered as complainant and it cannot be held that the appellant trust can invoke the jurisdiction of Consumer Forum under the Consumer Protection Act. The Hon’ble National Commission in “ Pratibha Pratisthan & Ors Vs Allahabad Bank & Ors” reported in IV (2007) CPJ 33 (NC) held that the complaint filed by a trust is not maintainable under the provisions of the Consumer Protection Act. It was held that :
Further, in support, the learned counsel for the opposite party bank has rightly pointed out an observation from DJ Hayton, Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies, wherein it has been observed that –
“ A trust, unlike a company, ahs no legal personality; thus, it cannot own property for entering into contracts, sue or are sued. It is the trustees who own the trust property, enter into contracts, sue or are sued. A trustee as such has no distinct legal personality in his representative capacity separate from himself in his personal capacity”
Considering the aforesaid definition of the word, “person”, a public trust is not ‘person’ which can be considered to be a ‘consumer’ entitled to file complaint before the Consumer Forum. The reasons are:
1) Trust is not included in the definition of the word ‘person’. The Legislature included cooperative society under the definition person but not ‘public trust’;
2) Secondly, trust is not a legal entity.
Hence the complainant, Pratibha Pratishthan Trust, which is registered under the Bombay Public Trust Act, 1950, cannot be considered to be ‘person’ which can file a complaint under the Consumer Protection Act 1986.
On the same analogy, the appellant trust cannot file a complaint invoking the provisions of the Consumer Protection Act and as such the complaint is not maintainable. .
The appellant trust states that the nominee of Bilasrai is Inder Karan was likely to operate the locker and requested the respondent bank not to allow him to do so without the signature of three existing trustees. It is also the case of the appellant trust that Bilasrai relinquished his trusteeship and retained the key of the locker with him. Therefore, it is seen that the trustees have been imputing the charges of fraud against one another and in that event the trustees being party to the fraud, the complaint filed by the appellant trust would not be a fit case for exercising the jurisdiction under the Consumer Protection Act as the very element of fraud had explicitly been made manifest through the letters addressed by the appellant trust to the trust bank. The appeal is liable to be dismissed for the reasons that the appellant trust is not the person entitled to file the complaint under the C.P. Act as also that all the trustees have not been made parties as the complainants as also for the reason that an allegation of fraud to have been committed by one of the trustees.
POINTS NO.2 TO 4 In view of the discussion held under point no.1 and the complaint is held to be not maintainable, There need be no discussion under these points as the point no.1 has been decided against the appellant trust.
In the result, the appeal is dismissed. No costs.