Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1881-18 Suit.795-18
CNR NO. MHCC010061362018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1881 OF 2018
IN
S.C. SUIT NO.795 OF 2018
1. Mrs. Renuka Rakesh Sharma ]
2. Mr. Rakesh Bankerai Sharma. ].. Plaintiffs
Versus
1. M/s. Dadar Club, ]
(a) The Hon. President, ]
Mr. Ashwin Deshmukh ]
(b) The Hon.Jt. Secretary, ]
(i) Mr. Shrirang Aras ]
(ii) Mr. Vivek Gadgil ]
(c) The Hon. Treasurer, ]
(i) Mr. Amit Chaudhary ]
(ii) Mr. Rajan Bagwe ]
2. Mr. Rajendra Pai ]
3. Mr. Vikas Joshi ]
4. Mr. Vasant Nirgurkar ] .. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 15).
DATE: 18th September, 2018.
Adv. Chimalkar for plaintiffs.
Adv. Harish Pawar for defendants.
ORDER
The plaintiffs have taken out this notice of motion for stay
operation and implementation of expulsion order dated 15/12/2017, to
-- 1 of 13 --
:2: NM-1881-18 Suit.795-18
permit the plaintiffs to use and enjoy the facilities of the defendant
No.1 club and directing the defendant No.1 to provide the legitimate
costs and expenses of conducting an Extraordinary General Body
Meeting and/or to produce the audited accounts of the last two
EOGM's.
2. The plaintiffs case in brief is that the plaintiff No.1 is the
life member of the defendant No.1 and plaintiff No.2 as her husband is
entitled to use the facilities of the defendant No.1 with their spouse.
Their children are also entitled facilities as dependent members. One
Rajesh Rane was appointed as coach in the swimming pool area. The
plaintiff No.2, who used swimming facilities noticed certain
irregularities and has informed the defendant No. 1 accordingly. But,
some of the members of the managing committee were hand in glove
with the said contractor and hence, they simply brushed aside the
genuine queries of the plaintiff No.2. The plaintiff No.2 had verbal
altercations with managing committee member, incharge of swimming
pool on 10/04/2016. The plaintiff No.2 received SMS on 6th June,
2016 to appear before the managing committee in respect of complaint
filed against him. The plaintiffs have replied to the same. The
complaints were made by Amit Chaudhary, Rajesh Rane and
Ramchandra Pillai. The committee has also informed the plaintiffs that
there was some alleged confession of plaintiff No.2. There was
exchange of communication between plaintiffs and defendants. The
plaintiffs have demanded copies of the inward register as the complaint
was fabricated and after thought. The plaintiff No.2 was not allowed to
participate in the meeting dated 9/07/2016, 16/07/2016 and
26/07/2016. They were denying him an opportunity to answer the
allegations made against him. The meetings were not conducted as per
-- 2 of 13 --
:3: NM-1881-18 Suit.795-18
the procedure, which fact was pointed out by the plaintiffs. The
plaintiffs were informed on 01/09/2016 that they were found guilty
and to show cause as to why action should not be taken against them.
In the meeting dated 17/09/2017 the plaintiffs were given the
impression that due to inadequate evidence the matter would be
resolved amicably, therefore the plaintiff gave formal apology letter.
However, the plaintiffs received a letter dated 20/10/2016 informing
him that their membership was suspended for a period of 6 months.
The plaintiffs expressed to challenge the same before the Annual
General Meeting, but the defendants claimed exorbitant charges of
Rs.1,25,000/. The plaintiffs filed Suit No.2755 of 2016 against the
defendants and their notice of motion No.4598 of 2016 was allowed
vide order dated 02/03/2017 and the suspension order was stayed
against plaintiff No.1 and the plaintiff No.1 and children were allowed
to use the club facilities. The plaintiffs informed the members of the
defendant No.1 about the order and complaint filed by the plaintiffs
against the managing committee for the criminal harassment and
intimidation. The plaintiffs had further sent Email about criminal
complaints filed. The plaintiffs name was mentioned in the Annual
Managing Committee Report published in June, 2017. The plaintiffs
received a show cause notice dated 7th September, 2017, eventhough
the club was closed due to rains from 29th August to 14th September
2017. On 4th October, 2017 a meeting was held wherein the plaintiff
No.1 was allowed to participate. Most of the documents were not
supplied and the plaintiff No.1 was asked to sign one sided minutes.
The defendant demanded documents from the plaintiffs and the
plaintiffs have also demanded documents from the defendants. The
defendant No.1 did not produce any documents. On 15th December,
2017 the plaintiffs received letter informing that they were expelled
-- 3 of 13 --
:4: NM-1881-18 Suit.795-18
from the club. When the plaintiffs had shown their desire to challenge
the order, the defendants claimed Rs.70,000/ for conveying
Extraordinary General Meeting. Therefore, the plaintiffs were unable to
challenge the said order before the Extraordinary General Meeting.
Hence, they have filed the present suit.
3. The defendant filed reply denying therein the allegations
made by the plaintiffs. The defendants have stated that the plaintiffs
have acted against the interest of the defendant No.1. After following
due procedure, as laid down in the constitution of defendant No.1 and
also after giving an ample opportunity to both the plaintiffs, the
plaintiff No.1 who is primary member was expelled from defendant
No.1 with effect from 15/02/2017. The plaintiffs have right to
challenge the expulsion by preferring an appeal before the General
Body by requesting the managing committee in writing after depositing
appropriate sum. Earlier, suspension order was taken out against the
plaintiff No.1 and she had tendered an apology on the charged levelled
against her. The plaintiff No.1 has adopted and justified her act
circulating defamatory Emails against defendant No.1 amongst the
members, which is a wrongful conduct. The plaintiff No.2 was culpable
repeated unhygienic and indecent behaviour in the swimming pool
area. The defendant has appointed an internal inquiry committee and
the misconduct was ascertained. The plaintiffs were given an ample
opportunity of hearing. In Civil Suit No.2755 of 2016 no interim relief
was granted in favour of plaintiff No.2 and the suspension of the
plaintiff No.2 for 6 months was confirmed. The plaintiffs have not
challenged the said order. The plaintiffs have circulated derogatory E
mails amongst the members of defendant No.1 and maligned the
character of the managing committee members by making accusation
-- 4 of 13 --
:5: NM-1881-18 Suit.795-18
with regards to cheating, forgery, criminal intimidation and defamation
against the managing committee. They have also asked the members
not to vote the managing committee. Therefore, after due enquiry the
plaintiff No.1 was suspended. The complaint filed by the plaintiffs
before the Metropolitan Magistrate was rejected on 19/12/2017. The
defendants have denied that there was irregularities in the swimming
pool and they have denied that they were hand in glove with the
contractor. It is denied that they have assured the plaintiff that the
complaint will be amicably settled and then apology was obtained. The
defendants have submitted that no primafacie case is made out by the
plaintiffs and the defendants have followed due procedure. Therefore,
the notice of motion is liable to be dismissed.
4. The plaintiffs filed rejoinder denying therein the contents
of the reply.
5. The defendants have denied the contents of the rejoinder
by filing surrejoinder.
6. Heard Advocate for the plaintiffs and defendants. Perused
the record of the case.
7. Following points arise for my determination and I have
recorded my finding thereon for the reasons to follow.
POINTS FINDINGS
i) Whether the plaintiffs have made out
primafacie case for staying the
expulsion order dated 15/12/2017 and
-- 5 of 13 --
:6: NM-1881-18 Suit.795-18
permitting the plaintiffs to use and
enjoy the facilities of defendant No.1
club ? : No.
ii) Whether the plaintiffs are entitled for
directing the defendant No.1 club
to provide legitimate cost and
expenses for conducting an
Extraordinary General Body Meeting
or to produce audited accounts ? : No.
iii) What order ? : As per final order.
REASONS
Point No.1 and 2 :
8. At the outset the Advocate for the plaintiffs have
vehemently submitted that the plaintiffs are being punished by the
defendant No.1, as they are hand in glove with the contractors of
swimming pool. It is argued that the plaintiff No.2, who is swimmer
had pointed out irregularities committed by the contractor and that how
the prices were overcharged. The defendants instead of punishing the
contractor, had obtained a forged and fabricated complaint and falsely
conducted an enquiry against the plaintiffs without following principle
of natural justice. It is further argued by the Advocate for the plaintiffs
that in the annual report of the defendant No.1 there are allegations
made against the plaintiffs mentioning therein that there was
unhygienic acts done by the plaintiffs in the swimming pool, has
resorted to Email campaign against the Trustees and also filed false
criminal case. But, when plaintiffs have sent Email to the members
about the illegal acts and also mentioned therein about the complaint
filed by the plaintiffs, the defendant No.1 has initiated enquiry and
-- 6 of 13 --
:7: NM-1881-18 Suit.795-18
suspended the plaintiffs. The Advocate for the plaintiffs has submitted
that all these factual aspect goes to show that the defendants are acting
against the principle of natural justice and just to protect themselves
and prevent the plaintiffs from bringing to the notice of the members
the illegal acts committed by them, they have suspended the
membership of the plaintiff No.1. It is further argued that the plaintiff
No.2 against whom the allegations were made was never allowed to
participate in the enquiry. The charges of the Annual General Meeting
are also exorbitantly shown to deter the plaintiffs from filing appeal. In
these circumstances, the Advocate for the plaintiffs has submitted that
the order of expulsion needs to be stayed.
9. Per contra, the Advocate for the defendants has submitted
that on the first occasion the plaintiff No.2 was found spitting in the
swimming pool and on the complaint due enquiry was made. There
was an apology from the plaintiff No.1 and accordingly plaintiffs were
suspended from using the facilities of the club for 6 months.
Thereafter, as per the order passed by the court, the plaintiff No.1 was
allowed to use the facilities and the suspension order against plaintiff
No.2 remained. Thereafter, the plaintiff No.1 made many defaults/
allegations against the managing committee which is duly elected by
the members and is looking after the affairs of the club. The
Advocate for the defendant has taken me through the contents of the
Email to show that the allegations are made against the managing
committee. He has submitted that allegations goes to show that they
are made with the intention to defame the managing committee of the
defendant No.1 and plaintiff No.1 has admitted Email being circulated
by her. Hence, there was no option than to expel her as earlier
plaintiffs were debarred from using the facilities for 6 months. Further,
-- 7 of 13 --
:8: NM-1881-18 Suit.795-18
the plaintiffs need to challenge the order before the Annual General
Meeting and not before this court. The charges of the meeting are bare
minimum.
10. The Advocate for the defendant has relied upon the
decision in case of T.P.Daver versus Lodge Victoria No.363 S.C.
Belgaum and others [ AIR 1963 Supreme Court 1144], to submit
that the jurisdiction of the Civil Court is limited and it cannot sit in a
court of appeal from the decision of a such a body; it can set aside the
order of such a body, if the body acts without jurisdiction. The
Advocate for the defendants has further submitted that the procedure is
laid down in the constitution of the defendant No.1, for taking
disciplinary action against the members for maintaining the decorum
of the club. In the circumstances, he has submitted that the notice of
motion is liable to be dismissed.
11. On perusal of the record, it is reflected that there is history
of strained relations between the plaintiffs and defendants since about
2016. The plaintiffs contention is that the defendant had grudge
against them because plaintiff No.2 who is swimmer had made
complaints about the irregularities in the swimming pool section.
There was also altercations between the plaintiff No.2 and Mr. Amit
Chaudhari, who is member of the managing committee. Therefore, for
the reasons defendants have taken vindictive action against the
plaintiffs and have secured fabricated complaints from one Rajesh Rane,
who was looking after the swimming pool. Said Rane has complained
that the plaintiff No.2 was blowing his nose in the swimming pool.
Now, in respect of the said complaint already the action was taken by
the defendant No.1 and plaintiffs were suspended from using the
-- 8 of 13 --
:9: NM-1881-18 Suit.795-18
facilities for 6 months. The plaintiff No.1 and her children were given
relief to use the facilities, but plaintiff No.2 was refused the said relief
by the court. So, now the said enquiry is part of the S.C.Suit No.2755
of 2016 and is subjudice. The plaintiffs contention is that they were
not given an opportunity of hearing. However, the defendants have
contended that due procedure was followed and defendant had
obtained an apology from the plaintiff No.1. The contention of the
plaintiffs is that it was obtained by the defendant by stating that the
dispute will be amicably resolved. However, at this stage there is no
material on record to support the said contention.
12. In the present case, the membership of the plaintiff No.1
was expelled because she had circulated derogatory Email against the
managing committee of defendant No.1 If the said Emails are perused
then the plaintiffs have made many allegations against the members of
the managing committee. They have also stated that the complaint is
filed against the managing committee about the illegal acts committed
by them. Now, plaintiffs are members of the club and if they have any
grievance against the managing committee then it was for them to make
complaint in writing and ask for the enquiry of the same. But, there are
no complaints filed on record by the plaintiffs to show that they had
made complaints before the committee, before a complaint was made
by Rajesh Rane against them. The plaintiffs have filed the complaint in
the criminal court and the same is dismissed as submitted by the
defendants. The plaintiffs have nowhere pleaded about the disposal of
the complaint. It is argued that the said dismissal is challenged,
however, the fact remains that presently the complaint is dismissed.
The plaintiffs have made many allegations against the managing
committee. The managing committee is elected by the members and if
-- 9 of 13 --
:10: NM-1881-18 Suit.795-18
there was any grievance then it was for the plaintiffs to follow proper
procedure. But, instead they have circulated defamatory Emails
amongst all the members. Therefore, the defendant No.1 has taken
action and as the plaintiff No.1 has admitted the said Emails, therefore
she was expelled. Now, this is the matter between the club and the
members. The record at this stage shows that the defendant No.1 has
followed procedure. Thus, the contention of the plaintiffs that they
were not provided with the documents or not given an opportunity of
being heard, primafacie does not appear to be truthful. The order and
minutes on record shows that plaintiff No.2 has also appeared and that
he has spoken rudely and made allegations before the enquiry
committee. Therefore, allegations that he was not allowed to appear is
not supported by documents on record. The plaintiffs have submitted
that they were not provided with the documents in the enquiry. In the
enquiry, the defendants have also called upon the plaintiffs to produce
documents, but they have failed to do so. Therefore, there are
allegations and counter allegations by both the parties against each other.
Now, it will be a matter of merits to see that whether defendants have
acted in good faith and that they had followed principles of natural
justice. At this primafacie stage, the relief sought by the plaintiffs will
amount to granting final relief, which cannot be given, considering the
history of dispute between the plaintiffs and the managing committee.
13. As per the constitution of the defendant No.1, the order
passed by the enquiry committee firstly has to be challenged before the
annual general meeting. The Advocate for the plaintiffs have stated
that for calling Extraordinary General Body Meeting, the defendants
are demanding exorbitant amount. The defendants have stated that at
the time of Extraordinary General Body Meeting all the members have
-- 10 of 13 --
:11: NM-1881-18 Suit.795-18
to be called and for that purpose the expenses are required. The
defendants have stated in their rejoinder how the expenses are
calculated and they have stated the amount of Rs.52,363/. Therefore,
the plaintiffs have prayed for audited accounts be directed to be
produced by the defendants to show that whether such expenses are in
fact incurred. Now, the plaintiffs have given the expenses which will be
required and the same primafacie appears to be legitimate. In these
circumstances, I find that no directions can be issued at this stage about
the same. Considering the entire material on record and the decision in
case of T.P.Daver (supra), primafacie the defendant No.1 has
conducted an enquiry and thereafter expelled plaintiff No.1. Now, it
will be a matter of evidence whether enquiry was conducted fairly by
giving proper opportunity to the plaintiffs or not. The plaintiffs have
failed to make out primafacie case to stay the expulsion order passed
against the plaintiff No.1. Therefore, I answer Point No.1 and 2 in
negative and proceed to pass the following order.
ORDER
i) The Notice of Motion No.1881 of 2018 is dismissed.
ii) Accordingly, notice of motion is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 18/09/2018
Dictated on: 18/09/2018
Transcribed on: 24/09/2018
Signed on: 24/09/2018
-- 11 of 13 --
:12: NM-1881-18 Suit.795-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
24/09/2018 at 5.15 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.15)
Date of Pronouncement of
Judgment/Order
18/09/2018
Judgment/Order signed by P.O.on 24/09/2018
Judgment/Order uploaded on 24/09/2018
-- 12 of 13 --
:13: NM-1881-18 Suit.795-18
-- 13 of 13 --