Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2029 OF 2019
IN
S.C. SUIT NO.1298 OF 2019
Mr. Sarfaraz Ahmed Khan … Plaintiff
V/s.
The Secretary General Maharashtra Chamber
of Commerce Industry & Agriculture,
(MACCIA) & Ors. … Defendants
Appearances :
Ld. Adv. Wasim Khan for plaintiff.
Ld. Adv. Tushar Jadhav a/w Riya Jadhav for defendant.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 10th OCTOBER, 2019
ORDER
Plaintiff has taken out this notice of motion for temporary
injunction restraining defendant nos.1 to 3 from implementing the
results of election of managing committee and from handing over
charge of managing committee to newly elected body with direction to
defendant no.4 not to act upon the change report.
2. It is argued on behalf of plaintiff that, plaintiff is a member
of Maharashtra Chamber of Commerce, Industry & Agriculture,
(MACCIA) a public trust (hereinafter referred as to said trust).
MHCC01005611201 9
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Defendant no.1 is the present Secretory General, defendant no.2 is
president while defendant no.3 is the Senior Vice President of said trust.
The trust has declared elections on 03.06.2019, 04.06.2019 and
05.06.2019 at various places in the state of Maharashtra. Trust has
registered office at Mumbai and branch offices all over Maharashtra,
except Panchgani, District Satara. In order to fulfill the vested interest
of defendant no.1 to 3 they have called the General body meeting of the
trust on 24.01.2019 at Panchgani, District Satara. It is not convenient
for all the members. In fact meeting was held there for the convenience
of defendant as there was marriage of daughter of Vice President on
25.01.2019 at Panchgani. It is further argued that for carrying any
amendment in the constitution of the trust 3/4th majority of members is
required. However, defendants have not followed said rule and carried
out major amendment in the constitution of trust regarding election,
eligibility of contesting candidates as well as other such changes. Said
amendment neither approved nor sanctioned by Charity Commissioner
nor change report is filed before it for approval. Therefore the schedule
of election declared on 03.06.2019, 04.06.2019 and 05.06.2019 in
Mumbai and other places in Maharashtra is illegal and ultra virus. As
such present managing committee has committed misuse of powers
which is against the interest of trust. As such defendant no.1 to 3 may
be restrained from implementing the result of election of managing
committee and from handing over the charge to the newly elected body.
3. The Ld. Counsel for defendant no.1 to 3 argued that the
suit as well as application is infructuous as the elections are over, results
are declared and charge is handed over to newly elected committee. So
also the change report is filed before Ld. Charity Commissioner for
approval. Therefore, suit and application became infructuous.
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4. It is further argued that suit is bad for want of permission
under section 51 of the Maharashtra Public Trusts Act. So also the
grievance made in application regarding election and misuse of powers
as well as change report are within the purview of section 22 of the
Maharashtra Public Trust Act and therefore, jurisdiction is vest in Ld.
Charity Commissioner. As such this Court has no jurisdiction to
entertain the application. The plaintiff has filed the suit with ulterior
motive. In fact he has contested last year election as Voice President
and lost it. Therefore, in order to create hurdle in working of newly
elected managing committee he has filed the suit and application.
5. Before going towards factual matrix it is better to decide
the legal objections raised by defendant. The first objection is that, suit
is not maintainable for want of permission of Ld. Charity Commissioner
under section 51 of the Maharashtra Public Trust Act. Ld. Counsel for
defendant invited my attention towards section 51. It says that, a
person having interest in any public trust if intend to file a suit then he
shall seek the written consent of Charity Commissioner. As against this
it is argued by Ld. Counsel for plaintiff that, no such permission is
necessary and suit is maintainable. The Ld. Counsel for plaintiff relied
on citation of our Hon'ble High Court reported in 2007(4) Bom. C.R.
325. As per facts of that case chairman was removed by no confidence
motion. In said meeting out of 30 members only 24 members were
present and out of them 13 having voted for in favour of removal of
chairman. It is observed that the manner in which plaintiff is removed
without following due procedure. Here the elections are already over
and elected managing committee has taken the charge and change
report is filed before Ld. Charity Commissioner. As per section 51
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permission is required for suit in the nature specified in section 50.
Section 50 deals with suit by or against or relating to public trust or
trustees or others. Here, admittedly plaintiff as well as defendants are
trustees of a public trust and the nature of relief is related to business
and affairs of the public trust. As such the facts under citation relied on
by plaintiff (supra) are quit different and not applicable here. So
considering the argument of Ld. Counsel of defendant I am of the
opinion that suit without consent of Ld. Charity Commissioner is not
maintainable.
6. The Counsel for defendant has given much tress on the
nature of claim by plaintiff. It is argued that plaintiff is claiming relief
against the amendment carried out in last year and elections of
governing council. Plaintiff has also raised objection about change
report submitted before Charity Commissioner for approval. Therefore
the relief claimed totally comes within the purview of section 41A & D
of the Maharashtra Public Trust as well as scope of inquiry under
section 22 of the Act by the Ld. Charity Commissioner. In support of
said submission the Ld. Counsel for defendant relied on citations.....
I) 2001 (1) MHLJ Page 548 in the case of Asaram Bhimrao
Shinde & Ors. V.s State of Maharashtra & Ors.
II) AIR 1996 GUJ 179Ramchandra Bhagwanji Desai V.s.
Gulabbhai Kalidas Desai & Ors.
III) 2002 (3) BOM C.R. 161 in the case of Chembur Trombay
Education Society & Ors. V.s. D.K. Marathe & Ors.
7. Admittedly plaintiff is claiming reliefs against the
amendment in constitution, election of governing body and change
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report submitted before Ld. Charity Commissioner. As per citation in
case of Asaram Shinde (Supra) it is clearly observed that “it is well
established that when a specific provisions is made for a specific
purpose in statute resort cannot be had to some other provision in such
statute to attain the purpose. When a thing is required to be done in
particular manner, then it should be done in that manner only and in no
other manner, otherwise the action would be rendered void and illegal.
Similarly in another citation at serial number 3 (Supra), it is observed
that the amendment to constitution as well as subsequent elections of
the governing council came into effect from the respective resolutions of
general body and not from the date of approval of change report by Ld.
Charity Commissioner. Here it is a matter of record that, elections are
held of 03.06.2019, 04.06.2019 and 05.06.2019. So also the general
body meeting for election of governing council is also over. It is also
matter of record that change report is pending before Ld. Charity
Commissioner for approval. However, as per ratio in above citation it
will came into force from the respective dates when amendment is
made and resolutions are passed. So considering the nature of
grievance or relief claimed it is purely within the purview of Ld. Charity
Commissioner as contemplated under section 22 of the Maharashtra
Public Act. Therefore the application is not maintainable before Civil
Court.
8. In addition to above I may say that plaintiff is claiming
interim reliefs from handing over the charge to newly elected governing
body and to election. As discussed earlier the elections are already
over, results are declared, charge is handed over and change report is
pending before Charity Commissioner for approval. So considering
above observations the application fails on legal as well as on factual
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aspects. Nor there is primafacie case in favour of plaintiff nor balance
of convenience lies in his favour. In such circumstances order
restraining the defendants amount to irreparable loss to defendants. In
result I am of the opinion that plaintiff is not entitled to temporary
injunction as prayed for. Accordingly the order.
ORDER
Notice of Motion No.2029/19 in Suit No.1298/19 is hereby
rejected.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 10/10/2019 City Civil Court, Gr. Mumbai
Dictated on : 10.10.2019
Transcribed on : 14.10.2019
Signed on : 14.10.2019
sbk/
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24.10.2019 05.35 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
10.10.2019.
Judgement/order signed by P.O on 14.10.2019.
Judgement/order uploaded on 24.10.2019.
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