Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 772/20 in ST.2126/20(Interim)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER
IN
NOTICE OF MOTION NO.772/2020
IN
SUIT (ST) NO. 2126/2020
1. Narotam Kapurchand Malkan
2. Lalit Mohanlal Shah
3. Vindral Gokuldas Malkan
4. Dinesh Dharmshi Shah ..Plaintiffs
V/s.
1. Pankaj Maganlal Shah
2. Kamlesh Dhardas Shah
3. Jayant Mathuradas Gandhi
4. Chandrakant Narsidas Gandhi
5. Jayesh Pravinchandra Malkan
6. Ashwin Tribhuvandas Shah ..Defendants
Appearance:-
Adv. Mr. Jitendra Ranawat for plaintiffs.
Adv. Mr. Yatin Shah for defendants no.1 to 5.
Adv. Mr. Chetan Golwala for defendant no.6.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 25.2.2020.
ORAL ORDER
1. Perused notice of motion supported by an affidavit of
Mr. Lalit Mohanlal Shah (plaintiff no.2 in the suit). I have also
perused short affidavit in reply submitted on behalf of the
defendant no.1 to 5 to the extent of grant of interim relief in
favour of the plaintiffs.
2. I have heard Ld. Counsels for the plaintiffs and
defendants regarding grant of interim relief as pressed by the Ld.
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Counsel for the plaintiffs in this motion.
3. The plaintiffs have taken out this Motion for seeking
temporary injunction against defendants no.1 to 5 and their agents
or persons claiming through them, including the Election
Commissioner etc. in respect of the election to be held on 8.3.2020
in “Shree Mumbai Visa Sorathia Vanik Gnati Samasta (Trust)”.
4. Ld Counsel for the plaintiffs relied upon affidavit of
Mr.Lalit Shah and argued that the brief facts giving rise for taking
out the present Motion and urgent circumstances requiring
intervention of the court are as under : -
The plaintiffs are Trustees of the Trust known as
“Shree Mumbai Visa Sorathia Vanik Gnati Samasta (Trust)”,
registered under the provisions of Maharashtra Public Trust Act,
1950. The members of the plaintiff Trust are from Gujarati
community. It is having its own Constitution and bye-laws and
activities of the Trust are governed by the same.
5. It is submitted that, since the year 2006, elections of
the Trust have been held as per new bye-laws and as per elections
and rules regarding the same trustees are appointed to manage the
affairs of the Trust. As per above said procedure, the defendant
no.6 had been appointed as an Election Commissioner to undertake
supervision, management and control of the administration of the
election process for the years 2019 to 2022. The Election
Commissioner i.e. defendant no.6 had widely circulated the election
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programme and invited the people at large from the community to
provide their names of the candidates as per rules and forms were
circulated. The defendant no.6 had held an election on 15.12.2019
at Gokhale High School, Borivali (W), Mumbai and new trustees
i.e. plaintiffs no.1 to 4 and one Mr. Mahendra Chaturbhuj were
elected as trustees for the years 2019 to 2022. The information
regarding the election process has been widely circulated through a
Magazine “Jyoti”, published in Gujarati language, copy of which
is placed on record vide Exhs.D and D1 (colly.) is the English
translation of the relevant portions.
6. Ld. Counsel for the plaintiffs further submitted that, the
Change Report bearing no.7008/2019 u/s. 20 of Maharashtra Public
Trust Act has been submitted to the Charity Commissioner and it is
pending enquiry. The plaintiffs are relying upon the proposed
Change Report for the purpose of hearing on the present Motion.
7. On the above background of the facts, it is grievance
of the plaintiffs that, the defendants no.1 to 5 have taken objection
to the Change Report and have sought intervention in the said
proceedings. The plaintiffs have filed their reply to the objection
taken by the defendants no.1 to 5 before Ld Charity Commissioner.
It is the grievance of the plaintiffs that, when the proceedings for
Change Report are sub-judice before Charity Commissioner for
adjudication, defendants no.1 to 5 have called upon the people at
large from the community to hold the election for the posts of
Trustees and Committee members by issuing forms which act of
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defendants is misleading and contained incorrect information. The
defendants have given public notice in respect of the proposed
election without any authority and have published said forms. The
acts of the defendants no.1 to 5 are in gross violation of the rules
and bye-laws as well as the Constitution of the plaintiff Trust and
therefore, they are required to be restrained during pendency of
the present Motion as well as the Suit.
8. Per contra, Ld. Counsel for the defendants no.1 to 5
have strongly opposed the request of the plaintiffs for grant of
interim relief in their favour by submitting short affidavit in reply.
They have taken some objections to the maintainability of the Suit
and present Motion itself and contended that, the objection taken
by the defendants are going to the root of the case and under
these circumstances, the interim relief as prayed cannot be granted
in favour of the plaintiffs.
9. Ld. Counsel for the defendant no.1 to 5 has relied upon
the affidavit of Mr. Chandrakant Gandhi (defendant no.4) and
argued that, the defendants intend to file detailed affidavit in reply
in due course and present affidavit is only restricted to the aspect
of grant of interim relief as prayed by the plaintiffs.
10. Ld. Counsel for the defendants contended that, as per
provisions of Maharashtra Public Trust Act, the present Suit is itself
not maintainable for want of necessary permission/ sanction of
Charity Commissioner, according to law. The defendants have
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challenged the claim of the plaintiffs that they have been duly
elected as per law as trustees of the plaintiff Trust. As per Change
Report, pg.137, it is mentioned that they have been elected as
“Five Trustees”. The purported trustee at Sr.No.5 ‘Mr. Mahendra
Chatrabuj’ is not made a party to the present Suit and therefore,
the Suit suffers from non-joinder of the necessary party and it is
also barred by law. It is submitted that, more than 300 people
from the community of the plaintiff Trust including defendant no.5
have not accepted the plaintiffs as trustees, as duly elected as per
rules in the election held in the month of December 2019. The
present suit filed by the plaintiffs without obtaining leave of the
Charity Commissioner is itself not maintainable as the subject
matter of the Suit is touching the administration of the Trust.
11. The next contention of Ld. Counsel for the defendants
is that as per Constitution of the plaintiff Trust, the process of
elections has already commenced and once it is commenced, as per
judgments of the superior courts and also on the basis of judgment
and orders of this Court, jurisdiction of this court is barred. As per
a settled legal position, the civil court is expected to restrain the
exercise of its discretionary jurisdiction and to restrain itself from
intervening in the election process. It is contended by the
defendants that, the new bye-laws (Exh.B), which have been
proposed, have not be approved by the Charity Commissioner and
therefore, the administration of the plaintiff Trust has to be
governed by original bye-laws which are produced at Exh.A.
Therefore, the action of the plaintiffs in contravention of the
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original bye-laws cannot be permitted or accepted and binding on
the Trust and its members. It is contended that the defendant no.6
appears to be interested party in taking out this Motion as well as
filing of the present Suit. Therefore, he cannot be said to be an
impartial person and competent to hold and complete any election
process. Therefore, defendant no.6 is interested to anyhow stall the
process of the election commenced by the defendants. It is
submitted that, the defendant no.6 was appointed as Election
Commissioner in AGM held on 1.9.2019 to conduct the election.
He held elections, but the appointment of defendant no.6 itself as
the Election Commissioner was not legal and proper because as per
Minutes of the AGM dated 1.9.2019, it is recorded that at-least
three more persons were required to be appointed as Election
Commissioner and appointment of 6 to 7 more commissioners to
frame rules, regulations and procedures for election in consultation
with the Trust. Under the above circumstances, it is submitted
that, the contention of the plaintiffs for grant of interim relief has
no merit and deserves to be declined by this court at this stage.
12. Ld. Counsel for the defendant no.6 also made his
submission and argued that, he has been appointed as Election
Commissioner and accordingly he has conducted the election as per
rules and regulations of the plaintiff Trust. The Change Report has
been submitted to the office of Charity Commissioner and it is
pending enquiry. Under the above circumstances, the plaintiffs’
claim in the Suit for intervention of this court restraining the
defendants no.1 to 5 is legal, proper and maintainable and the
opposition of the defendants to the above said prayer of interim
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relief is not based on correct interpretation of the law and true
facts of the case.
13. Ld Counsel for the defendants no.1 to 5 has placed
reliance on the following authorities in support of his submission:-
1. Nagar Wachan Mandir, Pandharpur, through its
Chairman, President and another V/s. Akabaralli
Abdulhusen & Sons and others (1994 (1) Mah.L.J.
280)
2. N.P. Ponnuswami V/s The Returning Officer,
Namakhal Constituency, Namakkal, Salem Dist. And
others (AIR 1952 Supreme Court 64)
3. Boddula Krishnaiah and another V/s. State Election
Commissioner, A.P. and others (AIR 1996 Supreme
Court 1595)
4. The Cambay Swetamber Visha Shrimali Jain Samaj
Sahayak Trust V/s. Shree Khambhat Jain Visha
Shrimali Pragati Mandal & Ors. (Notice of Motion
No.3339 of 2016 in Suit 2044 of 2016) decided on
26.8.2019 (City Civil Court, Gr. Mumbai).
5. Tasadduq Husain Qureshi and another V/s. Asif
Abdul Bashar Qureshi and others (2014(2) Mh.L.J
132).
14. I have gone through the above authorities and find
that, the authorities at Sr.Nos.1 to 3 and 5 are the decision of
Hon’ble Bombay High Court and Hon’ble Apex Court respectively
regarding bar of jurisdiction of civil court u/s. 50 and 80 of
Bombay Public Trusts Act and on the point that it is a settled legal
position that, once election process is started the Court are
expected not to interfere and the authorities under Statutory law
should take care of the situation. The authority at Sr.No.4 is the
decision of this court (Court No.01) in Suit No.2044/2016 (Notice
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of Motion No.3339/2016) decided on 26.8.2019. The said decision
is from a court having co-ordinate jurisdiction and is not binding
on this court. However, the same has definitely persuasive value.
In the said decision, Hon’ble Judge of the C.R.No.01 has also
taken a view that once election process starts, it is not proper for
civil court to entertain the civil process and grant of injunction
therefore, Motion for grant of interim relief/ injunction was
dismissed.
15. Considering the pleadings of the plaintiffs in this suit as
well as in the present notice of motion supported by the affidavit
and short affidavit in reply submitted by the defendants no.1 to 5
and oral submissions made by Ld. Counsels on their behalf, it
becomes clear that, in the present case, the election process has
been started by the defendants and the grievance of the plaintiffs is
that, when the election as per bye-laws of the Trust has been
already held in the month of December 2019 and Change report
has been submitted to the authority i.e. Ld Charity Commissioner
and it is pending enquiry, the subsequent election process started
by the defendants no.1 to 5 is not legal and proper and needs
interference at the hands of this court and the defendants should
be prohibited from proceeding further with the said election
process.
16. If the ratio of the authorities cited and relied upon by
Ld Counsel for defendants no.1 to 5 is taken into consideration, it
becomes clear that the law is well settled that once election
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process is commenced, the civil court are not expected to interfere
with the election process. It is also clear from the legal position
that the plaintiffs are not without any remedy to take appropriate
action against defendants no.1 to 5 in respect of the election
process, which has commenced. They can take appropriate legal
action before competent authority under law and get the interim
relief till the dispute is adjudicated by the authority under
Maharashtra Public Trusts Act. There is clear bar to the exercise/
discretionary jurisdiction by the civil court as per provisions of
Sec.41(b) and (h) of Specific Relief Act. Considering the above
legal aspects, I am of the view that, the plaintiffs have not been
able to make out a case to pass any interim order, as prayed in
the notice of motion, at this stage. Hence, I proceed to pass
following order :-
ORDER
1. The prayer of the plaintiffs for grant of interim
protection is hereby rejected at this stage.
2. The notice of motion shall proceed further for
decision on merit after defendants submit their
detailed reply in due course of time.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 25.2.2020 Gr. Bombay (C.R. 03)
Dictated on : 25.2.2020
Transcribed on : 26.2.2020
Draft given to HHJ on 26.2.2020
Signed by HHJ on : 27.2.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/
ORDER.
UPLOADED ON : 27.2.2020
TIME: 11.40 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 25.2.2020
Judgment/ order signed by P.O on 27.2.2020
Judgment/ order uploaded on 27.2.2020
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