Final Order 2

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.772-2020 in Suit No. 1680-2022
MHCC010020992020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 772 OF 2020
IN
SUIT NO. 1680 OF 2022
1. Narotam Kapurchand Malkan ]
2. Lalit Mohanlal Shah ]
3. Vindrai Gokuldas Malkan ]
4. Dinesh Dharamshi Shah ] .. Plaintiffs
Versus
1. Pankaj Maganlal Shah ]
2. Kamlesh Dharmdas Shah ]
3. Jayant Mathuradas Gandhi ]
4. Chandrakant Narsidas Gandhi ]
5. Jayesh Pravinchandra Malkan ]
6. Ashwin Tribhuvandas Shah ] .. Defendants
Appearances :-
Ld. Adv. Usha Tiwari for Plaintiff
Ld. Adv. Yatin Shah for defendant No.1 to 5.
Ld. Adv. Chetan Gholwala for defendant No.6.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 26.07.2024
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ORDER
The present notice of motion is taken out by the plaintiff
for claiming the relief inter alia;
(a) To grant temporary injunction against defendant No.1 to 5, and
their agents and persons claiming through them including their
Election Commissioners/Communications to hold the election
which is to be held on 08.03.2020 “Shree Mumbai Visa Sorathia
Vanik Gnati Samasta (Trust)”;
(b) To grant ad-interim and interim in terms of prayer (a) of the
motion;
(c) Costs of the Notice of Motion.
2. It is the contention of the plaintiff that they are the
Trustees of “Shree Mumbai Visa Sorathia Vanik Gynati Samasta”
(hereinafter referred as “the said Trust”) registered under the
Maharashtra Public Trust Act, 1950 in the year 1940 to look after the
interest, benefits and welfare of Gynati Samaj and Gynati Sanstha of
Gujrati Community. It is further contended that the said trust has its
own rules and regulations and also abide by-laws and constitution. It
is further contended that in the year 2006, the then trustees have
introduced new by-laws/constitution in the said trust which has been
published in their weekly magazine namely ‘Jyoti’ which is highly
circulated in the society amongst the Gujrati Community and the said
magazine make aware of the day to day affairs of the trust to the
beneficiaries of the said trust. It is also contended that the smooth
functioning of the said trust is made aware and update to the people at
large through the said magazine.
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3. According to the plaintiffs, pursuant to the new
by-laws/constitution, the trustees shall elect for three years instead of
four years. Since 2006 onwards, time to time the election has been held
as per new by-laws, wherein the said trust have been appointed trustees
to manage day to day affairs and to discharge their duties in the interest
of the trust.
4. It is further contention of the plaintiffs that by efflux of
time, the three years term of the trustees were completed, therefore, the
said trust declared election in-consonance with the by-laws. The
defendant No.6 had been appointed as an Election Commissioner and
under his supervision, management, control and administration, the
election process for the year 2019-2020 shall be convened. It is also
contended that the defendant No.6 has accepted to act as an Election
Commissioner to hold and election in the said trust. Once upon a time,
the defendant No.6 was also acted as one of the trustees and for the
betterment and welfare of the society as well as Gynati Samaj, the
defendant No.6 has accepted the proposal to act as Election
Commissioner without any interest. It is also contention of the plaintiff
that the defendant No.6 was appointed as an Election Commissioner to
maintain the transparency of the said trust.
5. According to the plaintiff, the defendant No.6 had being
Election Commissioner widely circulated Forms and invited the people
to act as trustees and committee members in the said trust. The
defendant No.6 had informed the interested persons to fill up the forms
alongwith condition precedent requisitions to act as trustees and
committee members for the welfare of the said trust. It is further
contention of the plaintiff that the defendant No.6 has held the election
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on the fixed date i.e. 15.12.2019 at Gokhale High School, Borivali (W),
Mumbai. Thus, the trustees i.e. plaintiffs have been elected for the
periods year 2019 to 2022 to serve the plaintiffs and look after the
welfare and betterment of Gynati Samaj and Gynati Sanstha of Gujrati
Community. It is also contended that the defendants neither applied for
the post of trustees nor for the committee members.
6. It is the contention of the plaintiffs that they have filed
Change Report No.7008 of 2019 under Section 22 of the Act before the
learned Charity Commissioner to appoint them as trustees to the said
trust. The said Change Report is subjudice before the learned Charity
Commissioner. The defendant Nos. 1 to 5 have filed their objections to
the said Change Report by intervening in the said application. Despite
of knowledge of pendency of Change Report, the defendant Nos. 1 to 5
have called upon people at large in the name of said trust to hold an
election for the post of trustees and committee members by issuing
forms with misleading informations. These defendants have given
public notice in the name of plaintiffs though they have no authority
which is published in the forms. The defendant Nos. 1 to 5 were well
aware that the election has been held in December-2019, despite they
have circulated the alleged forms and thereby called for fresh election
without any authority or orders from the learned Charity Commissioner.
It is further contention of the plaintiffs that the defendant Nos. 1 to 5
are acting in gross violation of the by-laws, circulated the alleged form
widely to hold election for their greedy means. The defendant Nos. 1 to
5 have held that the plaintiff’s election is against the
by-laws/constitution, inspite of the same, they have filed their objection
to the Change Report which is subjudiced before the learned Charity
Commissioner.
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7. According to the plaintiffs, the defendant Nos. 1 to 5 are
high handedly conducting the elections to defeat the present trustees
who have been elected as per the constitution of the said trust. The
defendant Nos. 1 to 5 want to take over the management for their
greediness and to cause detrimental to the welfare of Gynati Samaj and
Gynati Sanstha. It is the further contention of the plaintiffs that the
defendant Nos. 1 to 5 intend to disturb the core objects for their
personal use, motive and benefits. They are well aware that they have
challenged the change report, pending before the Charity Commissioner
despite of the same, they have unlawfully issued the forms and tried to
conduct election on 08.03.2020, without obtaining proper sanction of
the learned Charity Commissioner.
8. According to the plaintiffs, the defendant Nos. 1 to 5 have
called for election to be held on 08.03.2020 vide forms circulated by
them. If the election is conducted, the plaintiff shall suffer irreperable
loss as change report is pending before the learned Charity
Commissioner. Therefore, plaintiffs are seeking stay to the said
election. Hence, this motion.
9. In support of notice of motion the plaintiffs have relied on
following Judgments-
1) Mahomed Hassan Samru V/s. Peer Hazarath Diwanshah Dargah
Trust & Others, 2002 SCC OnLine Bom 274, in that case, suit was filed
for declaration and injunction and challenged the lease deed executed
by the plaintiff No.2 in favour of the defendant. Declaration was also
sought that defendant is not entitled to seek non agricultural permission
of the suit property. The Hon’ble Bombay High Court while dismissing
the Writ Petition observed that the relief claimed by the plaintiffs in this
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suit would not qualify any of the clauses (a) to (q) referred to in Section
50 of the said Act. Therefore, the requirement of obtaining prior
sanction of the Charity Commissioner will have no application.
2) Vidarbha Kshatriya Mali Shikshan Sanstha, by its President Shri
Wasudeorao Dattaji Sonar V/s. Mahatma Fuley Shikshan Samiti,
Amravati through its President Ruprao Bhimrao Yawale 1986 SCC
OnLine Bom 107, in that case the plaintiff has filed suit for injunction
to restrain the defendant from interfering with its right to run the
school classes in the suit premises till summer vacation. The defendant
moved an application u/s. 9 (A) of CPC and the trial Court has rejected
the contention of the defendant. The Hon’ble Bombay High Court while
dismissing revision application observed that if the suit is filed by party,
for enforcing his own civil right, such suit cannot be barred by the first
proviso of Section 50 of the Act.
10. The defendant Nos. 1 to 5 have resisted the notice of
motion by filing say, on the ground that the documents at page
Nos.17 to 28 in the plaint, do not appear to the constitution of the trust
but rules of relief funds and this is purposely done to mislead the Court.
It is further submitted that this is being done only with a view to get
orders from this Court by suppressing material facts and documents. It
is also submitted that the plaintiffs have filed change report and
annexed the correct document about constitution of the trust, 1974 to
mislead this Court with ulterior motive, have annexed something else
than the constitution.
11. It is further submitted that, though, the claim of the
plaintiffs that there is new constitution of trust recorded in the year
2006. The so called constitution has not been approved by the Charity
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Commissioner, as nobody has bothered to get approved the same by
making changes in the rules and regulations of the trust. It is also
submitted that plaintiffs have not got any authorization from the trust
to file the present proceeding in their personal capacity without any
locus.
12. It is also submission of the defendant Nos.1 to 5 that the
trust itself is not joined as a party and thus, due to non joinder of
necessary parties, the plaint needs to be dismissed. According to these
defendants, the constitution of the trust of the year 1974, clearly
provided in clause XII clause 3.5 by all are required for calling a Special
General Body Meeting is to get requisition from 51 or more members to
consent. The defendant Nos. 1 to 5 have got requisitions from atleast
300 persons who addressed the requisition to the current trustees.
Pursuant to such requisition, the trustees following the procedure
mentioned in the constitution and started the process for election. It is
also submitted that as per the constitution of trust, Special Annual
General Body Meeting can be called in any case, in any case there is
requisitions of 51 members for calling such Special Annual General
Body Meeting and requisition of more than 300 people calling of
Special Annual General Body Meeting and accordingly for the purpose
of calling election, a Special Annual General Body Meeting was called.
Once the Special Annual General Body Meeting was called, it was
further proposed that as per the requisition detail exercise of holding
elections be undertaken and all of this was taken with due deliberation
and strictly following the provisions of constitution of trust, 1974.
However, the plaintiffs apart from not showing any authority through
which the defendant No.6 was allegedly appointed as election
commissioner. According to these defendants, the defendant No.6 was
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never appointed as as sole election commissioner. On all these grounds,
the defendant Nos. 1 to 5 prayed to dismiss the notice of motion.
13. In support of their submissions, the defendant Nos.1 to 5
have relied on the following Judgments.
1)
Rajesh Chunilal Meghani V/s. The Andheri Recreation Club
and Ors. First Appeal No.432 of 2016 the Hon’ble High Court of
Bombay, dated 12.06.2017, in that case, suit was filed by the plaintiff
for seeking declaration that the order/resolution suspending him is
illegal, null and void and also seeks injunction to restrain the public
trust and its trustees from acting in pursuance of such order/resolution.
The trial court has rejected the plaint with a view that the suit filed by
the plaintiff is a suit as contemplated under Section 50 of the Act. The
Hon’ble High Court while upholding the order passed by the trial court,
granted liberty to the plaintiff to apply the Charity Commissioner for
permission to institute the suit.
2)
Social and Cultural Association and others V/s. State of
Maharashtra and others, 2014 (4) Mh.L.J., in that case, the plaintiff has
filed suit for declaration that resolution whereby the membership of
plaintiff Nos. 1 to 13 has been canceled should be declared as illegal
and permitted them to participate in the election by staying the
resolution. The trial Court had held that even in the absence of sanction
of Charity Commissioner under Section 50 of the said Act, the suit is
maintainable. The revision application was filed before the Hon’ble
High Court, challenging the said order. The Hon’ble High Court of
Bombay, while allowing revision application observed that as per
Section 50 of the said Act, declaration relating to
“Any right” in favour
of or against trustees or beneficiaries thereof is covered under the above
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provisions, the rights claimed by the plaintiffs are apparently not
individual rights. It is further observed that the right to membership
cannot be said to be divorced from being member of the trust. The right
claimed is that their membership of the trust could not have been
canceled by the trust in the manner, in which it has been done. The
right emanates basically from being member of the trust. Merely, calling
the right as Civil right will not help. It cannot be said that it is any
independent right not connected with the affairs of the trust or
management of the trust. It is also observed that the pleading itself
shows that the membership was canceled with the object of election
which was due on 02.09.2012. The change report regarding the election
is already before the Charity Commissioner and wherein the plaintiffs
have already raised objection. Thus, the dispute whether or not the
membership has been legally or illegally canceled, can be considered
when objection regarding the election which followed, are considered in
the change report. Therefore, the Hon’ble High Court has held that the
suit is barred as per Section 80 of the said Act and plaint was rejected
under Order-VII Rule-11 (d) of CPC.
3)
Gaud Saraswat Brahmin Temple Trust & Ors. V/s. Vasudeo P.
Shetye @ Kamlesh P. Shetye & Ors. 2010 (3) Bom. C.R. 499, in that
case, the plaintiff has filed suit for declaration that resolution dated
07.09.2007 passed by the Trust in Board Meeting is arbitrary, illegal and
bad in law, so also the resignation dated 08.09.2007 filed by the
plaintiff is inconsequential and is of no effect and the plaintiff continues
to be a permanent trustee in respect of defendant No.1 Trust. The
plaintiff also prayed for an injunction restraining the defendant Trust, to
act upon the said resolution. The defendant has taken objection of
jurisdiction of Civil Court under Sections 50 and 51 and also Section 80
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of the said Act. The trial court has held that the civil Court has
jurisdiction to entertain and try the suit. The Hon’ble Bombay High
Court while allowing revision application observed that Sections 50 and
51 of the said Act, are applicable to the said suit.
4)
N.P. Ponnuswami V/s. The Returning Officer, Namakhal
Constituency, Namakkal, Salem Dist., and others AIR 1952 SC 64, in
that case, the Hon’ble Supreme Court has observed that rejection or
acceptance of the nomination paper is included in the term of
“election”. The matter was under the Representation of the People Act
and the facts of said case are not squarely applicable to the present
matter.
14. It is pertinent to note that the notice of motion for seeking
relief of temporary injunction to the election which is to be held on
08.03.2020 of the said trust. It is seen that the ad-interim relief was
rejected by this Court and the plaintiff has challenged the said order
before the Hon’ble High Court wherein the Hon’ble High Court has
stayed the said election till final disposal of the present notice of
motion. The learned Advocate for the defendants have argued that the
relief claimed is itself become infructuous, therefore, this notice of
motion needs to be dismissed.
15. The learned Advocate for the plaintiffs has submitted that
one change report to record the name of the trustees, in respect of
elected managing committee members is filed before the Charity
Commissioner. Admittedly, the issue of conducting election is directly
touching to the affairs and administration of the trust. By way of
election, tenure of the executive members of the earlier body comes to
an end and new executive members can be elected and new tenure can
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be started. Admittedly, in this case prior sanction is not obtained from
the Charity Commissioner to institute this suit. It is pertinent to note
that if enforcement of civil rights is involved in any suit, the same is not
barred by Section 50 the of the said Act. Seeking temporary injunction
to the ‘election process’ by the trustees not seems to be enforcement of
their civil rights. By way of this relief, they are seeking stay to one of the
process i.e. election which is directly related with the administration of
the trust. It is well settled principle that once the process of election is
commenced, the civil courts are not expected to interfere with the said
process.
16. The learned Advocate for the plaintiff has submitted that as
per the new by-laws, election was held under the supervision,
management and control of the defendant No.6 for the year 2019 to
2022, as he was appointed as Election Commissioner and plaintiffs are
elected as trustees for the aforesaid period and change report bearing
No. 7008 of 2019 under Section 22 of the said Act, has been filed before
the Charity Commissioner, which is still pending. Admittedly, the
change report is sub-judiced before the competent authority and legality
and validity of that change report, is yet to be decided.
17. According to the defendants, more than 300 people from
the community of the plaintiff trust have not accepted the plaintiffs as
trustees. It is submitted that the defendant No.6 was appointed as
Election Commission in Annual General Meeting held on 01.09.2019,
but his appointment was not legal and proper because in the said
meeting’s minutes, it was recorded that at least three more persons
were required to be appointed as Election Commissioners an
appointment of six to seven more Commissioners to frame rules,
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regulations and procedures for election in consultation with the trust.
18. Before going merits into the matter, I have to deal with the
issue whether this suit as well as notice of motion can be maintainable
here. The pleadings of both the parties clearly indicate that the dispute
between them regarding the administration of the trust and one change
report is pending before the Charity Commission in respect of the
executive body elected for the tenure 2019 to 2022. The defendants
have challenged the said change report due to the incompetency of
appointment of Election Commissioner. According to the plaintiffs, the
defendant Nos. 1 to 5, despite of the knowledge of pendency of change
report circulated forms wherein, they have called fresh elections
without any authority or order of the charity commissioner and also in
violation of by-laws of the trust.
19. Admittedly, the trust is created for the benefit of all the
community members and who born in the Gynati Samaj, automatically
becomes beneficiary of the said trust. Conducting election or seeking
stay to the election process is the right in favour of or against either
trustees or beneficiaries of Gynati Samaj. The relief seeking by the
plaintiffs, not seems to be individual right and thus, the ratio laid down
in
Social and Cultural Association (supra), is squarely applicable here.
20. If the plaintiffs are willing to seek relief, they have to take
appropriate legal steps before the competent authority. The grant of
temporary injunction is a discretionary relief and if efficacious relief can
be obtained by filing appropriate proceeding before the competent
authority, civil court can not exercise its discretion for grant of
temporary injunction.
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21. Considering the facts and circumstances of the case, I do
not find that the relief claimed in the notice of motion is surviving.
Therefore, the notice of motion needs to be disposed of as the prayer
becomes infructuous. In the result, I proceed to pass following order.
ORDER
1. The Notice of Motion No.772 of 2020 stands disposed of as
infructuous.
2. No order as to costs.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 26/07/2024 C.R. No.03
Directly dictated on computer on : 24.07.2024, 25.07.2024, 26.07.2024
Draft ready for checking on : 26.07.2024
Draft given to HHJ for checking : 23.08.2024
Draft corrected by HHJ on : 02.09.2024
Correction carried on : 03.09.2024
Signed on : 03.09.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.09.2024. 05.30 p.m. Mrs. Vasanti D. Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 26.07.2024.
Judgment/Order signed by P.O. on 03.09.2024
Judgment/Order uploaded on 04.09.2024
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