superfast munnabhai (trainee) 20 October 2010

Order 39 R 1 and 2. Dipute over FD between spouses..Help me

This is a civil as well as family court matter.

Dispute between Husband(me) and Wife going on (Wife filed for divorce).

Step 1: My lawyer has applied for 'restriction to liquidate FD/Fixed Deposits' as per Order 39, in Oct-2009 in regards to many things which include following...

Total of Five Fixed Deposits between me and my wife as a joint FD with 'either or survivor'.
One of the FD got matured in last few month months(July-2010)
Remaining four to get matured in 2011.

Step 2: Wife's lawyer gave the response within time (Nov-2009) and refuted my claim with folowing reasons:

All FDs are as 'Either of Survivor'. My wife possesses all 'original certs' (she took it away from my cupboard while walking out.)

This Matter of Order 39 is still pending and even not gone further even inch, because there were many applications filed by wife after that.

Now wife encashed one FD in the last week which got matured.

Her lawyer said 'it is allowed to encash and spend that money because there was no restraining order as of today'

Her lawyer also said 'Liquidation of FD' and 'encashing of FD' after maturity are two different issues.

Her lawyer also said that 'Wife didn't liquidate it but encashed it after maturity.'

Because wife has the 'original certs', any banks or even court can not stop her from encashing it for her urgent needs, irrespective of who contributed into FD's principle. The reason is that 'either or survivor' definition allows the bearer of the instrument to encash it. Restraining was anyways immpossible on such!!

Please suggest remedy!!!!! OR Please suggest remedy for remaining four FDs atleast!!!!!

Have I lost that encashed FD principle for ever? I have contributed by around 70% in all FD's.

We had joint saving account.

We deposited our cheques in that.

We then made FDs by attaching withdrawl slip to FD account forms in that bank (SBI). SBI declined my letter to stop such payment and said the same thing as above!!!

Please Help me for my problems!!!!

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4 Replies

Nisarg Trivedi (Associate Lawyer) 20 October 2010

Appoint a Mediator and get your problems mutually resolved.

This is the fastest and the easiest way.

superfast munnabhai (trainee) 20 October 2010

Q1. First of all ...Is there any 'mischief' or 'non-legality' in what the wife's lawyer said.

Q2. If the the suit matter is pending as per Order 39, How can she encash FD. Is It not contempt and fraud?

Please Reply?

superfast munnabhai (trainee) 20 October 2010

Originally posted by :R.Ramachandran
"	Unless there is a stay order from the Court restraining your wife from encashing the FDs, she can jolly well encash it. Once you have a stay/injunction order from Court, then even if she has the original certificates with her, she will not be in a position to encash it (even when the FDs are either or survivor basis). Ofcourse, the copy of the stay order should be served on the organization where the FD is made, under acknowledgement.	"

Please read above by R.Ramachandran

It's my wife who delayed the whole case so far.

Is it a my mistake if she keeps on filing intermediate applications one after another?

I don't think so!!

Are you saying sir that FIFO is not allowed? or is it that my lawyer didn't press for FIFO (first in first out) kind of hearing on all application. Then my application shud have heard since 2009.

I feel that injustice is done to me.

There is LIFO (last in first out) system in court. which is totally wrong!!

Because, every new interim application submitted by either party is automatically going to result in the adjournment of further hearing of all the previously filed applications!!

Then, This is a basic blunder in the our legal system!!

Somebody please help our nations!!

Q1. Can I give this reason what wife encashed it...to make the judge take my order 39 application on priority?

This is a very urgent question..please help.

Q2. And also Is there any merit in my application order39?

Wife's lawyer told me that my application had 'no merits' anyways!!

Since 'either or survivor' means that both partied agreed and conferred, at the beginning only, the full rights to any bearer amongst two of us.

I had gone to bank and told them to give duplicate copy.

But that time Bank asked for signature of both. (I am highlighting the double standards here)

After maturity of one of the FD also I went there again to ask for duplicate , but again bank asked for signature of both. They also called my wife on phone and she told them that she had the 'original cert'

IF For getting a duplicate if Bank requires 'both regnatures', Isn't the bank NOT following the meaning of 'either of survivor'? Is it not a double standard and injustice to me?

Is there recovery way out by leagal ways.?