Order 1

Order Details: Notice of Motion
Pdf Text: NM 1619/18 in SU 984/18 .. 1 .. Order
CNR No. MHCC010051142018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1619 OF 2018
IN
SUIT NO. 984 OF 2018
Mr. Nitin Himmatlal Jain.
...Plaintiff.
V/s.
Royal Western India Turf Club Ltd & Ors.
...Defendants.
Appearances:
Ld. Adv. Mr. P.D. Gandhy I/b Adv. Mr. Chirag Sancheti for plaintiff.
Ld. Adv. Mr. Niranjan Bhadang a/w Adv. Ms. Prachi Mhatre for
defendants No.1 to 10,12,13 to 16 and 18 and 19.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 25th October, 2018.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and requested
that pending the hearing and disposal of the suit, by way of interim
relief, the Stewards of the club of defendant No.1 be directed to
reconsider plaintiff's application on merits afresh after giving personal
hearing to the plaintiff.
2. The plaintiffs case as mentioned in the affidavit of the Notice of
Motion and in the plaint may be stated as under :
The plaintiff has been approved by the Mysore Race Club to own
horses and accordingly, the plaintiff owns horses in the Mysore Race
Club Limited. The defendant No.1 is a company limited by guarantee
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and is registered under the Indian Companies Act, 1913. The defendant
No.1 controls the sport of horse racing and regulates it in Mumbai and
Pune. It discharges duties and exercises functions that are public in
nature and akin to state functions/duties. The defendant No.1 is
required in law to act reasonably, fairly and without any arbitrariness.
The defendant No.2 to 12 are Stewards of the defendant No.1.
Defendant No.13 to 19 are the members of the Board of Appeal of the
defendant No.1. The management of the defendant No.1 is being done
by a committee of members of the defendant No.1 which are duly
elected as per the Articles of Association of the defendant No.1 as
Stewards of the club. The said committee also elects further six
members of the defendant No.1 as members of the Board of Appeal.
The plaintiff was desirous of becoming an owner of horses with
the defendant No.1. The plaintiff inquired with the defendant No.1
regarding the procedure to own a horse with the defendant No.1. The
plaintiff was informed that the defendant No.1 has framed Rules and
Regulations, known as Royal Western India Turf Club Limited, Rules of
Racing (hereinafter referred to as “Rules”). The plaintiff was also
informed that in order to own a horse with the defendant No.1, the
plaintiff has to be approved by the Stewards of the Club of the
defendant No.1. Accordingly, in and around September 2017, the
plaintiff made an application for ownership of horses with the
defendant No.1 under the said Rules by submitting the application in
prescribed format and by giving requisite documents and paying
requisite fees. After submitting the said application, the plaintiff had
informal meeting with two stewards i.e. defendant No.2 and 7. They
informed the plaintiff that they will get back to him visavis the
plaintiff's application. The plaintiff was waiting for an intimation from
the defendants in pursuance to the application submitted by the
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plaintiff. Surprisingly on 13.10.2017, Mr. Ashwin Mehta (defendant
No.17) orally informed the plaintiff that the stewards of the club had
rejected the plaintiff's application and the Stewards of the Club have
also refused to give any written communication for the same. Therefore,
the plaintiff had no choice but to inform the Secretary of the defendant
No.1 that the plaintiff intending to file an appeal before the Board of
Appeal. The plaintiff also requested to provide copy of minutes of the
meeting of the interview as well as the minutes of the meeting where
the plaintiff's application was rejected by the Stewards of the Club. The
plaintiff also deposited the appeal fees being Rs.5000/ vide cheque. In
response to the said letter of the plaintiff dated 31.10.2017, the
Secretary of the defendant No.1 informed by his letter dated
24.12.2017 that the case of the plaintiff was placed before the Board of
Appeal and the Board of Appeal had remanded the matter back to the
Stewards of the Club. It was further informed that the Stewards of the
Club, in meeting dated 16.12.2017 had directed the Secretary of the
defendant No.1 to inform the plaintiff that the plaintiff's application was
not approved. Further the appeal fees of Rs.5000/ was also returned to
the plaintiff.
Although, the Board of Appeal remanded the matter back to the
Stewards of the Club for fresh decision, the said order was not informed
to the plaintiff nor was the plaintiff given any opportunity of hearing by
the Stewards of the Club. Inspite of the remand of the matter to the
Stewards of the Club, again the club has not provided their minutes of
the meeting wherein the said application was rejected. The defendants
did not provide the plaintiff with the reasons for such rejection and,
thereby, violated the principles of natural justice. The Stewards of the
Club did not bother to call the plaintiff for an interview and again
passed the same order without any interview/personal hearing of the
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plaintiff. Thus, order of rejection passed by the Stewards of the Club is
in violation of the principles of natural justice, without application of
mind, unreasonable, improper, defective, invalid, illfounded, null and
void abinitio.
Therefore, the plaintiff addressed a letter dated 08.01.2018 to the
Secretary of the defendant No.1 informing that the plaintiff seeks to
prefer an Appeal against the said decision taken on 16.12.2017.
Therefore, the plaintiff requested to provide him the copy of the
minutes of the said meeting. In response to the said letter dated
08.01.2018, the plaintiff received a letter dated 09.02.2018 from the
Secretary of the defendant. Thereby, Secretary informed to the plaintiff
that his appeal before the Board of Appeal was rejected as the plaintiff
did not file the appeal within 72 hours of the said order dated
16.12.2017.
The plaintiff submits that the aforesaid action on the part of the
defendants in rejecting his application as well as appeal is illegal,
arbitrary, malafide and in violation of principles of natural justice etc.
The conduct of the defendant in rejecting the plaintiff's application is
exfacie arbitrary, motivated and deliberate. Therefore, the plaintiff has
got cause of action to file the instant suit and accordingly, the plaintiff
is seeking declaration that the aforesaid decision of the Stewards of the
Club of the defendant No.1 in the meeting dated 16.12.2017 is illegal
and bad in law and also to declare that the letter dated 09.02.2018
issued by the defendant No.1 is illegal and bad in law. In the plaint, the
plaintiff has also asked for direction to the Stewards of the Club of
defendant No.1 to reconsider the plaintiff's application on merits and
decide it a fresh after giving personal hearing to the plaintiff. By way of
the Notice of Motion, the plaintiff has requested the interim relief as
described herein earlier.
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3. The defendant No.1 has filed affidavit in reply and has opposed
the Notice of Motion. According to the defendant, the suit itself is not
maintainable and, therefore, the Notice of Motion is also not tenable
and it is liable to be dismissed. The defendant is a company and a
private club. It is a licensee of the State Government to conduct racing.
It has taken a decision to reject the plaintiff's application to be a race
horse owner. This decision is purely an internal matter of the racing
club, which does not concern any public interest or a public policy. The
discretion of the defendant to reject the application of the plaintiff
cannot be challenged in the Court, on the grounds raised by the
plaintiff. According to the defendant, the plaintiff is not entitled for
interim relief as prayed in the Notice of Motion. It is admitted that the
defendant is a company limited by guarantee and incorporated under
the provisions of the Companies Act, 1913 and it is carrying on racing
activities relating to conduct of horse races and other allied activities
and has its race courses in Mumbai and Pune. As a licensee of the State
Government, the defendant club is duty bound to uphold the integrity
of racing. In order to ensure this, the defendant club is always alert to
ensure only genuine persons are approved for becoming race horse
owners. To ensure clean and fair racing in a spirit of true competition
and to prevent possibility of any, misconduct or other unwanted
activities, the defendant is entitled to have and do have their own rules
and regulations and norms for internal management as regards
admission of participating owners. It has been motto of the defendant to
ensure clean racing as they have onerous duty to the public to ensure
that racing is conducted in proper and fair manner and only genuine
parties are allowed to participate. Approval to own and run race horses,
is not an open membership and the applicants are screened by the
stringent process of interview before any approval is granted. Right to
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be given approval to own a horse and to participate in racing is not a
matter of right. The plaintiff is not a member of the club and this suit is
relating to his application for approval to own a race horse. Even, as
regards admission of members, the club follows the same rules of
interview and personal assessment.
It is further case of the defendants that it is not a “State” as
sought to be pleaded by the plaintiff and it has the autonomy and
freedom to restrict and regulate admission. The organizations like the
defendant club are entitled to have and do have their own Rules and
Regulations for their internal management to conduct their affairs. The
defendants are thus, within their rights to follow their rules and norms
as regards admission to the membership of their club and also about
grant of approval for ownership of race horse that can participate in the
race conducted by the defendant club. In order to ensure that the
activities of the club are conducted in disciplined manner to ensure
clean racing, the Stewards of the Club are given certain responsibilities,
authorities and powers which include power to admit or reject or
approve or refuse membership of the club and/or approve or disapprove
the application for ownership of horse/s for participation in racing
activities conducted by the defendant club. Stewards of the Club are
appointed by the Managing Committee of the defendant club, which is
elected by the general body of the members. The mandate given to the
Stewards of the Club and powers, authorities and responsibilities given
to them are part of internal management and conduct of the club and
they have, as stated in the Rules, clearly stipulate that they have
absolute and sole discretion, interalia, to refuse registration of any
person as owner with power to withdraw or revoke such approval or
permission at any time. In this regard, the defendant has quoted Rule
41(c) of their Rules, which state that the Stewards of the Club have
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power at their sole discretion to refuse to consider any partnership,
contingency, lease or arrangement as required under the rules and if
considered, necessary to cancel without assigning any reason the
registration of any such partnership, contingency, lease or arrangement.
The Stewards of the Club under said clause (c) of Rule 41, has also
discretion to approve any person including the limited company or a
Syndicate or a partnership firm as owner or to permit such approved
person to own horses and race them under the Rules of Racing of the
Turf Club with power to withdraw or revoke such approval or
permission granted to any person.
According to the defendant, the Stewards of the Club broadly
take into consideration the following factors while discharging their
responsibilities in respect of the granting approval to own horses.
(i) Family and financial background of the applicant.
(ii) His association and knowledge of the sport of
horse racing and horses.
(iii) Whether his interest and desire to own a horse is
genuine or merely casual and impulsive or arising
out of interests other than sportsmanship.
(iv) Whether he will be able to sustain such genuine
interest and capacity on long term basis as
owning a race horse requires a substantial
devotion and expense.
(v) Whether he is otherwise fit and proper person.
(vi) Whether there is anything to suggest or infer that
the applicant is benami for some undesirable
person, who would not be approved as an owner.
The Stewards of the Club has formed a subcommittee of two
experienced and senior Stewards viz. Mr. Geoffrey B. Nagpal and
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Mr. Milan Luthria to interview the applicants, who had applied for
approval/grant of ownership of race horse in their club. The said
committee had held interviews for that purpose at Pune in the Steward's
Meeting Room and on that day, they had interviewed three applicants
including the plaintiff herein regarding their applications for approval
of ownership of race horse/s. The said procedure for preapproval is
essentially an interview of the applicants and is not an inquiry into any
misconduct as is sought to be projected. The said inter view was
conducted by the aforesaid members of the subcommittee officially and
as per their usual practice and norms, which the club had adopted for
this purpose. The allegations made in the plaint that the Mr. Geoffrey B.
Nagpal and Mr. Milan Luthria met in an informal or casual meeting
which lasted only for two minutes, are false. The said interview lasted
for more than 1520 minutes. The Steward Mr. Niranjan Singh also
attended the said meeting/interview. Several questions were posed to
the plaintiff relating to race horses, racing and related activities and
other matters. Plaintiff's financial statements were considered, his claim
that he owns two horses at Mysore Club and expenses required to be
incurred for the same were enquired into and was also taken into
account. SubCommittee also considered the earlier applications made
by the plaintiff, noted the misrepresentations and false statements made
under his application as compared to his earlier applications were also
noted. After considering the interview and assessing material submitted
by the applicant, the committee came to the conclusion that the plaintiff
is not a fit and proper person to be an owner and did not approve the
application of the plaintiff for ownership of horse. This decision was
orally communicated as per normal practice to the applicant on or
about 14.10.2017. This decision was ratified by the Stewards of the
Club and was orally communicated as per normal practice to the
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applicant on or about 29.10.2017.
According to the defendant, the prayer made by the plaintiff to
direct the defendant to reconsider his application is misconceived. The
plaintiff has not made out any ground for grant of such prayer. The
decision taken by the defendant was honest and in good faith and in the
interest of the club. The Civil Court cannot and ought not, in such a
case, substitute the decision taken by the club in its best interest, with
its views in this matter.
According to the defendant, the plaintiff has mischievously
suppressed that, he had on two prior occasions made similar
applications for owning race horses, which were rejected. The plaintiff
as such was fully aware of the procedure and, therefore, his allegations
that he came to know about the procedure for the first time in the year
2017 or just prior to his application which is subject matter of this, are
completely and patently false. In the year 2014, one BNJ Stayer Pvt.
Ltd. had applied for ownership of horses as per Rules of Racing of the
defendant No.1 Club. The plaintiff was one of the Directors in that
company. As per the Rules, as Director, he had also filed this application
form. The said application for ownership of the BNJ Stayer Pvt. Ltd. was
rejected by the Club sometime on 19.04.2014. A copy of that
application is also produced with the reply by the defendant. It is thus
clear that the plaintiff was fully aware of the procedure for owning
horse with the defendant No.1. The plaintiff had once again applied for
ownership of horse by application dated 31.10.2015. The statements
made in the aforesaid application were found false and unreliable. Such
a person cannot be therefore, admitted as owner of race horse in the
defendant's club. The aforesaid facts are pointed out by the defendant
in view that the plaintiff has chosen to file this suit and without
prejudice to the defendants contentions that, no reason are required to
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be given by them for disapproving the application of the plaintiff for
ownership of horse and that they are entitled to do so after interview as
per their own discretion.
Then, the defendant has denied allegations made by the plaintiff
that he was not given sufficient opportunity before his application was
rejected and the Appeal was also dismissed on the ground of limitation.
The information about the rejection of the plaintiff's application was
communicated orally and it is a standard practice of the club not to give
written communication about the rejection of the application as an
application is decided on the basis of personal interview and there is no
order on any inquiry that is required to be passed or communicated in
formal manner. The interview cannot be equated to an inquiry as is
sought to be suggested or misinterpreted by the plaintiff. The decision
of the Stewards not to approve plaintiff's application cannot be faulted
with on that ground that it was not communicated to the plaintiff in
writing. The letter dated 31.10.2017 itself shows that the plaintiff has
admitted that there was an interview conducted by the Stewards of the
club. Therefore, the allegations of the plaintiff that he was not given
opportunity of hearing are false. The Board of Appeal in the meeting on
16.12.2017 referred the matter back to the Stewards of the Club on the
basis of the email of the plaintiff. The Board of Appeal directed the
Stewards of the Club to consider the said email and take necessary
action in that regard. The said reference was not in the nature of
remand as is sought to be suggested by the plaintiff. Such powers are
given to the Board of Appeal under Rule 51 (D). Pursuant to the said
reference, the Stewards of the Club held a meeting on 16.12.2017 and
after considering the matter, they directed the officers of the club to
inform to the plaintiff that his application has not been approved. The
said decision was communicated by the defendant No.1 to the plaintiff
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vide its letter dated 24.12.2017. Since, the said reference was interse
reference between the Board of Appeal and the Stewards of the Club,
there was no requirement to inform the plaintiff about the said
reference. Board of Appeal wanted the formal communication by the
club to the plaintiff about rejection of his application. It was for that
reason, the matter was referred back to the Stewards, as the Board of
Appeal could not decide the appeal without written communication to
the applicant. In such circumstances, there is no question of any further
hearing to be given to the plaintiff by the Stewards of the Club or
maintaining of any minutes of the meeting. Defendants submit that
since the application of ownership of horse is on the basis of a personal
interview, no reasons are required to be given and the matter is decided
at the sole discretion of the Stewards of the Club. It is denied that any
principle of natural justice is required to be followed in deciding the
outcome of the interview. Defendants further submit that this is not an
adversarial proceedings or disciplinary proceedings and it is a matter of
approval of plaintiff's application on the basis of his interview. There
was internal reference for a limited ground of communication of order
and the order of Board of Appeal did not amount to remand and no
further hearing or further interview was required to be conducted. The
defendant has denied that the principles of natural justice or
opportunity to show cause etc. are applicable in the matter of interview
and in any case, the said decision was done in fair and reasonable
manner and as per the discretion of the Stewards of the Club.
Defendant has denied that it was in violation of principles of natural
justice, without application of mind, unreasonable, improper, defective,
invalid, illfounded, null and void abinitio.
The defendant further submits that the allegations contained in
the letter dated 08.01.2018 clearly belies the plaintiff's allegations that
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the matter was remanded to the Stewards of the Club. On it, it is
admitted by the plaintiff that, it was merely sent back to the Stewards.
Defendant has denied that it was sent back because they did not receive
minutes of the meeting. IT was sent back because there was no letter of
communication to the plaintiff of rejection of his application. In any
case, since there was no minutes of the meeting in respect of any
interview, question of producing any minutes does not arise. The
application for Appeal dated 08.01.2018 suffers from delay and laches,
since it was filed more than prescribed 72 hours after the
communication dated 24.12.2017, the same was not maintainable as
per the rules of Racing and was properly rejected. In this regard, Rule
46 of the “Rules of Racing” is referred to by the defendant in the reply.
According to the defendant, the plaintiff has sought to paint a
completely lopsided picture in order to show that a great injustice has
been done to him by not giving him any hearing or by not following
rules/principles of natural justice or by not giving any reasons in the
matter of plaintiff's application for owning race horse. The entire thrust
of the argument is based on wrong premise that the plaintiff is having
any right to be granted any approval. The matter rests entirely in the
discretionary of the Stewards of the Club and they are entitled to decide
whether to allow any person to own race horse. The defendant has
submitted that plaintiff has not prima facie case and balance of
convenience and no irreparable loss is going to be caused to the plaintff,
if the interim relief is not granted.
4. I have heard arguments advanced by the learned Advocate of the
plaintiff as well as learned Advocate of the defendants. The learned
Advocate of the plaintiff has submitted that the defendants themselves
have framed the rules for dealing with the applications for ownership of
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horses. Therefore, they are bound to follow the same. He submits that
the defendants rules provide a particular manner to be observed by the
Stewards of the Club. As per those rules, the Stewards of the Club are
required to give opportunity of hearing to the applicant and then, to
decide by giving reasons, whether the applicant is entitled for approval
of ownership of horses in the club. In this regard, Rule 41 has been
referred to which says that the Stewards of the Club have power at their
sole discretion to approve any person as an owner or to permit to such
approved person to own horses and race them under the “Rules of The
Racing of the Turf Club” with power to withdraw such approval or
permission. The learned Advocate of the plaintiff has also referred to
Rule 46 in which, it is provided that an appeal shall lie to the Board of
Appeal from any decision or order of the Stewards of the club. The Rule
47,48 and 49 are also referred to which deal with constitution, powers
and procedure of the Board of Appeal. The learned Advocate of the
plaintiff has submitted that no written communication was made to the
plaintiff about the rejection of the plaintiff's application and thus, the
plaintiff was deprived of right of filing the appeal. The plaintiff made
certain communications in this regard and there upon the Board of
Appeal remanded the matter to the Stewards of the Club for
reconsideration. Order of remand was also not communicated to the
plaintiff. Even, thereafter, the Stewards of the Club have not given
opportunity of hearing to the plaintiff. After remand, the Stewards of
the Club have not offered opportunity of hearing to the plaintiff and
rejected the application again. This is also not informed in time. The
plaintiff submitted his appeal, though beyond the prescribed period of
72 hours limitation. But without giving opportunity of hearing to the
plaintiff, the Board of Appeal has rejected the appeal on the ground that
it is beyond limitation. All these circumstances, show that the
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defendants have not followed the principles of natural justice in the
matter and rejection of the plaintiff's application. The learned Advocate
of the plaintiff has referred to the decision of Hon'ble Bombay High
Court in the case of Mr. Gerald A. Fernandez V/s. The Bandra
Gymkhana & Ors. in Notice of Motion No.68/2014 in Suit
No.32/2014 decided on 06.08.2014. In that case, the membership of
the plaintiff from the club/gymkhana was subject matter of the case.
The Hon'ble Bombay High Court has held that as the principles of
natural justice were not followed before expulsion of the plaintiff and,
therefore, the expulsion order was stayed by the Hon'ble High Court.
The learned Advocate of the plaintiff also referred to the decision of the
Hon'ble Supreme Court in the case of Uma Nath Pandey & Ors. V/s.
State of U.P. & Anr. [AIR 2009 SC 2375]. In that case, the High Court
had allowed the revision application without serving notice on the
respondents. The Hon'ble Supreme Court has held that the principles of
natural justice were violated and, therefore, the appeal was allowed by
the Hon'ble Supreme Court.
5. On the other hand, learned Advocate of the defendants has
submitted that the defendant No.1 is not a State, within the meaning of
Article12 of the Constitution. It is a private body and it has right to
manage its own affairs including the grant of approval to anybody for
ownership of horse/s in the club. He has submitted that the decisions
relied upon by the learned Advocate of the plaintiff are not applicable to
the facts of the instant case. He has submitted that the principles of
natural justice are required to be observed by such bodies, which comes
within the definition of State. The defendant No.1 is not such body. The
defendant No.1 is a company and it is entitled to follow its own
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procedure in managing its affairs. Therefore, it is submitted that the
allegations of the plaintiff that principles of natural justice have not
been followed by the defendant are totally irrelevant. In this regard, the
learned Advocate of the defendants has referred to the decision of
Hon'ble Bombay High Court in the case of VSM Diamonds Pvt. Ltd.
V/s. Bharat Diamond Bourse [AIR 2016(6) Bom R 1]. In that case, it
was decided as to when Courts get jurisdiction to interfere in the
decisions taken by companies or private bodies. It was held that to
revoke such jurisdiction it should be shown that the regulatory body
purported to set itself up and to act as a court and that in doing so, it
violated a fundamental right available to the plaintiff. It was also held
that even if it is a private body, to revoke the jurisdiction of Civil Court
for interference in its decision, it should be shown that it has such a
dominance that a ban or refusal of permission by it would have the
effect of impairing a public policy principle, depriving the plaintiff of
the ability to work and of means of livelihood. The learned Advocate of
the defendants has also submitted that the appeal of the plaintiff was
rejected by the Board of Appeal because it was beyond the prescribed
limitation of 72 hours prescribed in the rules. The Board of Appeal
cannot be expected to condone delay by applying section 5 of the
Limitation Act. In this regard, the decision of Hon'ble Supreme Court in
the case of International Asset Reconstruction Company of India
Limited V/s. Official Liquidator of Aldrich Pharmaceuticals Limited
& Ors. [2017 (16) Supreme Court Cases 137] has been referred to. IN
that case, it was held that the provisions regarding condonation of delay
laid down in section 5 of the Limitation Act are not applicable to
tribunals like Debt Recovery Tribunal under the recovery of Debts &
Bankruptcy Act,1993. It is submitted by the learned Advocate of the
defendants that the interim relief sought for is in the nature of final
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relief and it cannot be granted in the instant suit. He has also referred
to the decision of Hon'ble Bombay High Court in the case of
Ramswaroop Sunderlal Goyal V/s. North India Association, Mumbai
[2013 (4) Mh.L.J 239]. In that case, it was held that termination of
membership may amount to breach of a term or stipulation of contract
i.e. Memorandum of Association and, hence, the said breach cannot be
remedied by injunction. In absence of plaintiff succeeding in showing
before the Court any statutory stipulation enforcible as contract, about
right of plaintiff to have enquiry to be done by observance of principle
of natural justice, a decree for injunction cannot be passed. The learned
Advocate of the defendants submitted that the plaintiff had no
contractual relation with the defendant and, therefore, the plaintiff has
got no right, to become owner of horse in the club, breach of which can
be remedied by way of injunction. The learned Advocate of the
defendants has also referred to the decision of Hon'ble Bombay High
Court in the case of Pesi Shroff V/s. State of Maharashtra and Ors.
[AIR 1993 BOMBAY 384]. In that case, it was held that the Royal
Western India Turf Club i.e. the defendant No.1 is not a State or other
authorities referred to in Article12 of the Constitution and, therefore,
Writ Petition under Article226 of the Constitution to challenge decision
of club was held to be not tenable.
6. I have examined the aforesaid submissions of the parties and
perused the pleadings and documents on record. Following points arise
for determination on which I record my findings as under for the
reasons to follow :
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POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In the Negative
2. Whether the plaintiff has balance of
convenience in his favour ?
In the Negative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In the Negative
4. What order? The Notice of Motion is
dismissed as per the
operative order being
passed herein below.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
7. I have noted the pleadings of the parties elaborately herein earlier
to note their respective cases. Basically, the plaintiff's contention is that
his application for ownership of horses in the defendant No.1's Turf
Club has been rejected by the defendant No.1 without giving
opportunity of hearing to the plaintiff and without intimating to the
plaintiff about the reasons of the rejection. It is admitted fact that the
plaintiff had applied for ownership of the horses to the Stewards of the
Club, a committee of the defendant No.1 to take decision on such
application. The plaintiff was interviewed by the Stewards for short
period according to the plaintiff and then, orally he was informed that
his application was not approved. It appears that the plaintiff had sent
email to the Board of Appeal, as is seen from the pleadings of the
defendants. On such email, the Board of Appeal sent the matter back to
the Stewards of the Club and asked the Stewards to consider the
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matter. Thereafter, the Stewards of the Club informed to the plaintiff
that his application was rejected. This was also orally. It appears that
thereafter, the plaintiff filed Appeal with certain delay contending that
no written order was informed to him by the Stewards of the Club.
Then, the Board of Appeal also communicated to the plaintiff that his
Appeal was beyond the period of prescribed limitation of 72 hours and,
therefore, the Appeal was rejected. In such background, the plaintiff
alleges that the principles of natural justice have not been followed by
the defendants and, therefore, he is entitled for reliefs from this Court
to declare that the rejection of his application by the defendants is
illegal and also for direction to the defendants to reconsider the
plaintiff's application after giving opportunity of hearing to the plaintiff
by following principles of natural justice.
8. I have examined the submissions of the parties. I find merits in
the submissions of the learned Advocate of the defendants that in the
aforesaid facts of the case, the plaintiff has neither prima facie case nor
balance of convenience in his favour nor he would suffer irreparable
loss, if the interim relief is not granted. The defendant is a company. In
the case of Pesi Shroff V/s. State of Maharashtra and Ors. (supra) it
has been held that the defendant No.1 club is not a State or other
authority for the purpose of section 12 and 226 of the Constitution. In
such circumstances, whether it is necessary for the defendant No.1 to
strictly follow the principles of natural justice of giving opportunity of
hearing or assigning reasons for rejection of plaintiff's application for
becoming owner of horses etc. In this regard, I find merits in the
submissions of the learned Advocate of the defendants that the
defendant No.1 is not bound to follow such rules, while dealing with
applications for ownership of horses. In this regard, the decision relied
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NM 1619/18 in SU 984/18 .. 19 .. Order
upon by the learned Advocate of the defendant in the case of VSM
Diamonds Pvt. Ltd. V/s. Bharat Diamond Bourse (supra), may be
referred to the case of the plaintiff does not pass the test laid down in
the said decision. Owning horses in the club for racing cannot be said to
be a fundamental right. Nor it can be said that to get approval of
defendant for owning horse with the club is an ability to work or means
of livelihood. It also does not appear that the owning horse with the
club has any concern with any public policy. It cannot be said in the
instant case that fundamental rights of the plaintiff have been violated
and the defendant has purported to set itself up to act as a Court while
taking decision on plaintiff's application. It also cannot be said in the
facts of the instant case that the decision of the defendants to reject the
plaintiff's application for ownership of horses in the club, deprives the
plaintiff of the ability to work and of means of livelihood. It is on record
that the plaintiff is also owning horse in other clubs. Therefore, I do not
find that at this stage, it can be said that the Court can invoke its
jurisdiction to interfere in the decision of defendant No.1 particularly at
this interim stage. As far as, the decision in the case of Ramswaroop
Sunderlal Goyal V/s. North India Association, Mumbai (supra) is
concerned, I think it is not relevant to the issue involved in the instant
case, because the said case is about termination of plaintiff's
membership from the association. Herein the instant case, the plaintiff's
application for membership/ownership of horses was rejected and the
plaintiff was yet to become member of the defendant. Therefore, there
is no question of breach of any obligation under any contract in the
instant case. The decisions cited by the learned Advocate of the plaintiff
are also not relevant and applicable to the facts of the instant case. In
the case of Mr. Gerald A. Fernandez V/s. The Bandra Gymkhana &
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Ors. (supra), the expulsion of the membership of the plaintiff was in
question. As the plaintiff was member, the contract between him and
the club was there in existence, which gave right to the plaintiff for an
opportunity of hearing before his expulsion and such right was violated
and, therefore, the Hon'ble Bombay High Court stayed the expulsion. In
the instant case, no such contractual right had been created by way of
contract. Therefore, this decision is not helpful to the plaintiff in any
way. As I have held that the defendant No.1 is a private body and it has
discretion to decide to whom, it should approve as owner of the horse/s
in its club, and it has not been shown that by rejection of the plaintiff's
application for ownership of horses, the defendants have violated
plaintiff's right to work or any fundamental right or public policy,
defendant is not bound to strictly follow the principles of natural
justice. Therefore, the decision relied upon by the learned Advocate of
the plaintiff in the case of Uma Nath Pandey & Ors. V/s. State of U.P.
& Anr. (supra) is also not helpful to the plaintiff.
9. I also find merits in the submissions of the learned Advocate of
the defendant that the suit is for declaration that the rejection of
plaintiff's application at the hands of the defendants is illegal and also
for injunction to direct the defendants to consider the plaintiff's
application by giving opportunity of hearing to him. The temporary
injunction asked for in the instant Notice of Motion is also to direct the
defendants to consider plaintiff's application by giving opportunity of
showing caused to him etc. Such interim relief would amount to
granting the relief before trying the issues and would amount to grant
of final relief prayed in the plaint. For all the aforesaid reasons, I hold
that the Notice of Motion is liable to be dismissed. Therefore, I have
recorded negative findings of issues No.1 to 3 and I hold that this
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NM 1619/18 in SU 984/18 .. 21 .. Order
Notice of Motion will have to be dismissed accordingly point No.4 is
answered. Hence, I proceed to pass the following order.
: O R D E R :
The Notice of Motion No.1619 of 2018 is hereby
dismissed and it stands disposed of accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 25.10.2018. City Civil Court, Gr. Mumbai
Dictated on : 25.10.2018.
Transcribed on : 26.10.2018.
Signed on : 29.10.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.10.2018, at 3.20 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 25.10.2018.
Judgment/order signed by P.O. on 29.10.2018.
Judgment/order uploaded on 29.10.2018.
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