Final Order 1

Order Details: Copy of Judgment
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Jud in Suit 3262 of 2019
MHCC010086552019
Presented on : 21-08-2019
Registered on : 02-12-2019
Decided on : 05-07-2024
Duration : 04-10-M.14-D.
IN THE BOMBAY CITY CIVIL COURT, AT GR. BOMBAY
S.C. SUIT NO.3262 of 2019
Exh.-24
Sucheta Desmond Rodrigues
Age 47 yrs.
Bungalow Amaaya, Union Partk,
Chembur (East), Mumbai – 400 055 .....Plaintiff
Versus
1. The Bombay Presidency Golf
Club Limited, Having address
at Dr. Choithram Gidwani Rd.
Chembur, Mumbai – 400 074.
2. Brijender Singh, President,
The Bombay Presidency Golf
Club Limited, Having address
at Dr. Choithram Gidwani Rd
Chembur, Mumbai – 400 074.
3. Col. R. S. Sekhon, (Retd.)
Secretary & CEO, The Bombay
Presidency Golf Club Limited,
Having address at Dr. Choithram
Gidwani Road, Chembur,
Mumbai – 400 074 ……...defendants.
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CORAM: HIS HONOUR JUDGE
SHRI. R. R. PATARE
(C.R. NO.1)
DATE : 5th DAY OF JULY, 2024
-: Appearances: -
The Learned Adv. Hingorani for plaintiff
The Learned Adv. Gaurav Sharma for defendants
JUDGMENT
(Delivered on this 5th Day of July, 2024)
The plaintiff’s suit is for relief of declaration that
letters dated 23/07/2019 and 28/07/2019 issued by defendant No.3
are invalid, illegal with further request to quash and set aside the said
letters. The plaintiff also seek declaration that defendants have
committed breach of contract. The plaintiff also seek direction against
defendants permitting plaintiff to make payment by installment/EMI
and for restraining the defendants from terminating her membership
and forfeiting the amount paid by her towards the membership
entrance fees of defendant No.1-club.
Brief facts of the plaintiff’s case are as under:
2. Defendant No.1 is incorporated and registered under the
Indian Companies Act, 1956. Defendant No.2 is the President of
defendant No.1-club. Defendant No.3 is the secretary and Chief
Executive officer of defendant No.1 club. The plaintiff instituted suit
bearing No.3054 of 2018 for declaration that her two children/wards
namely Master Amoorth Shetty and Miss Aadhya Shetty are entitled to
avail the rights and privileges of her membership with defendant No.1-
club like her children in terms of order dated 07/04/2017 passed in
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Guardianship Petition No.3 of 2016 and for performance of contract
with decree of injunction. The notice of motion no.4310 of 2018 filed in
the said suit came to be allowed with direction to permit Master
Amoorth Shetty and Miss Aadhya Shetty to avail facilities of plaintiffs
membership with defendant No.1-club.
3. According to plaintiff, she made an application for short
term membership for herself and her four children namely Master
Amoorth Shetty, Miss Aadhya Shetty, Miss Ammaya Rodrigues and
Master Joshua Rodrigues. She paid an amount of Rs.6,18,760/- by
cheque no.254506 dated 21/12/2017 towards her membership to
defendant No.1-club. The defendant No.1-club issued receipt bearing
voucher No.AR 1201166 dated 21/12/2017. Accordingly, the
defendant No.3 by letter no.BPGC/Adv ST/2017-18 dated 22/12/2017
informed the plaintiff that they have admitted her as a member for
‘short term’ commencing from 22/12/2017 for a period of one year and
also acknowledged the payment made by plaintiff. The defendants also
issued identity cards to plaintiff and her above named four children.
According to plaintiff she made an application dated 21/03/2018 for
permanent membership (Category-B/life) and furnished necessary
details with required documents. The plaintiff further states that she
handed over two post dated cheques of Rs.10 lacs each on 05/02/2018
and 01/12/2018 and requested time for balance payment till March-
2020. The plaintiff is ready to pay amount in equal installments by post
dated cheque. The plaintiff also gave option to suggest suitable method
for making payment with committee of defendant no.1-club for making
necessary arrangements for making payment balance amount. By e-
mail dated 03/05/2018, plaintiff was informed by defendant No.1 that
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she was required to pay an amount of Rs.59,00,000/- inclusive of GST
at the time of granting membership of defendant No.1. The plaintiff
was also informed regarding ballot meeting to be held on 24/05/2018
by e-mail dated 03/05/2018. The plaintiff accepted the offer made by
defendant No.1. However, defendant did not communicate about the
quantum of installment to be paid by her. According to plaintiff, on her
own, she made initial payment of Rs.10,00,000/- on 04/05/2018 and
made another payment of Rs. 10,00,000/- on 10/12/2018. The
plaintiff states that in response to e-mail dated 03/05/2018 of
defendant, she sent e-mail dated 04/05/2018 intimating defendants
that she has made payment of Rs.16,18,760/- as on 04/05/2018 and
that the balance amount is Rs. 24,81,240/-. It is stated that defendant
acknowledged the payment by issuing a voucher no.AR0500267 dated
11/05/2018. Thereafter, by e-mail dated 18/05/2018, defendant No.1-
club informed the plaintiff that she was entitled to avail EMI option for
payment of club membership fees. Thereafter, the defendants by their
e-mail dated 25/05/2018, informed the plaintiff regarding grant of
provisional membership number allotted to the candidates balloted on
23/05/2018 to use the club facilities with immediate effect. The
defendant No.3 by letter no. BPGC/NEW MEM/2018-2019 dated
27/05/2018 informed the plaintiff with reference to her application for
category-B membership and subsequent interview with the ballot
committee on 24/05/2018 that she is permitted to use the club facilities
with immediate effect. The plaintiff was given assurance to notify her
membership on completing the formalities.
4. Thereafter, the defendants by e-mail dated 17/08/2018
informed the plaintiff that an amount of Rs.44,56,750/- is outstanding
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as on 16/08/2018 towards principal amount of membership fees and an
amount of Rs.1,53,849/- towards interest payable by the plaintiff.
Thereafter, plaintiff made payment of Rs.10,00,000/- by RTGS dated
01/12/2018 to defendant No.1 club. The defendant No.1 club
acknowledged the said payment made by the plaintiff.
5. According to the plaintiff, there was no clarity regarding
exact amount to be paid by installments, therefore, the plaintiff by e-
mail dated 28/01/2019 requested defendants for a meeting for the said
purpose. The plaintiff also sent an e-mail dated 03/04/2019 to
defendants in that regard. However, defendants made any
correspondence in response to her request. It is stated that plaintiff has
made payment of Rs.26,18,760/- to defendant No.1-club and same is
accepted by defendant No.1-club unconditionally. The defendants by e-
mail dated 21/04/2019 with letter No.BPGC/Adv/2019-20 dated
21/04/2019 informed the payment received and outstanding towards
the membership of plaintiff. Thereafter, on 23/04/2019, the plaintiff
met one Mr.Manish Kulkarni, accounts executive of defendant No.1-club
for clarification regarding the balance payment to be made by the
plaintiff. Thereafter, plaintiff by e-mail informed defendant No.1-club
that she is ready to make lumpsum payment rather than vide EMI.
6. It is stated that defendant No.3 by letter dated 23/07/2019
informed the plaintiff that she has committed breach and threatened
the plaintiff that her provisional membership will be terminated due to
non-payment of balance amount Rs.41,56,526/- and that earlier
payment made by plaintiff of Rs. 26,18,760/- will be forfeited. It is
alleged that said act of defendant is unilateral, deliberate and arbitrary.
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The action of defendants is in breach of contract and contrary to their
own communication. The said act is also against the principle of
natural justice, equity and fair-play. The memorandum articles of
association and bye-laws do not permit defendant to forfeit the money
paid by the plaintiff. It is stated that the plaintiff by letter dated
25/07/2019 sent a detail reply which was received by the defendants
on 26/07/2019. The plaintiff also requested to withdraw letter dated
23/07/2019 issued by defendants. Thereafter the defendant by e-mail
dated 28/07/2019 forwarded the letter dated 28/07/2019 stating that
the plaintiff has not offered EMI option and the defendants never gave
EMI option to the plaintiff. It is stated that by letter dated 28/07/2019,
the defendants called upon the plaintiff to pay an amount of
Rs.41,56,526/- by 01/08/2019 and also informed that on failure the
membership of plaintiff shall be terminated. Thereafter, plaintiff by
letter dated 30/07/2019 denied the contentions and allegations made
in the letter dated 28/07/2019. The plaintiff also pleaded the names of
the members who have been extended the benefit of EMI option. It is
alleged that the action of defendant No.3 is in breach of contract and
discriminating. It is stated that plaintiff has paid total amount of
Rs.32,40,440/- in a span of 15 months against the amount of
Rs.59,00,000/- towards entrance fees. It is alleged that action of
defendants to terminate the membership of the plaintiff is malafide and
due to her having filed a suit against the defendants. It is further stated
that the memorandum articles of association and bye-laws do not
provide provision to terminate the membership on account of non-
payment of balance membership fee and to forfeit the amount paid
towards the membership fees. It is further alleged that membership
cannot be terminated on account of failure to submit three score cards
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in respect of rounds of Golf played on club course. It is stated that in
the application for membership category-B, the plaintiff has mentioned
that she is not a Golfer. It is stated that the ballot committee has
selected the plaintiff making her eligible for membership. The action of
defendants accepting the plaintiff as a member of defendant-club,
amounts to waiver of condition regarding submitting of three score
cards in respect of rounds of Golf played on club course. It is further
alleged that the act of defendants terminating the membership of
plaintiff is illegal, invalid and against the principles of natural justice.
Hence, the present suit is filed on behalf of plaintiff.
7. The defendant No.1 to 3 appeared and filed their written
statement and denied all the adverse allegation made on behalf of
plaintiff. It is contended that the plaintiff has taken out notice of motion
no. 2917 of 2019 in suit no. 3054 of 2018 for grant of similar reliefs.
The notice of motion no. 2917 of 2019 was finally heard on
09/08/2019 and thereafter adjourned for passing orders on
26/08/2019. Therefore the present suit for similar relief is not
maintainable. The suit of plaintiff is barred by the doctrine of Res-
Judicata. It is alleged that the present suit is filed with dishonest
intention to achieve ulterior motives against the defendants.
8. It is contended that the plaintiff has applied for
membership category -B on 21/03/2018. It is contended that the
plaintiff was require to comply with certain mandatory formalities as
well as payment of entrance fees in terms of notification dated
18/03/2018. The copy of the notification was made available to the
plaintiff along with the application form. The proposal for membership
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was to be submitted along with 50% of the entrance fees and the
balance 50% membership fees was to be paid before the balloting date.
However plaintiff has not complied the said mandatory condition. The
plaintiff being temporary member was require to submit not less than
three score cards in respect of rounds of Golf played by her within six
months from the date of granting a temporary membership. The
entrance fee at the time of plaintiff’s application for membership
category -B amounted to Rs.59,00,000/-. After adjusting the credit of
certain amount towards her short term membership, the payable
amount for B-category membership was Rs.54,42,590/-. The plaintiff
paid a sum of Rs.10,00,000/- by way of RTGS dated 04/05/2018 and
amount of Rs.10,00,000/- by another RTGS dated 06/12/2018. It is
contended that the outstanding dues payable by plaintiff to the
defendant club towards entrance fees was Rs.38,00,431/-. However
plaintiff did not comply her contractual obligation despite sufficient
opportunity. It is contended that plaintiff has deposited amount along
with interest towards entrance fees under the order of Court.
9. It is contended that plaintiff does not have an absolute
right or interest to enjoy the benefits and privileges of the defendant
club by virtue of her original membership. It is alleged that the plaintiff
did not pay outstanding entrance fees. The defendant club is empower
to terminate the provisional membership of plaintiff due to non-
payment of the complete entrance fees. It is further contended that the
defendant club and the plaintiff is having contractual relationship.
The plaintiff was required to follow the terms and conditions on the
basis of which membership is granted to her. Article-10 of the Articles
of Association of the defendant club provides that the aspiring member
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of the club to submit three score cards by personally playing the Golf
within six months from the date of grant of provisional membership and
on failure the provisional membership automatically comes to an end.
It is alleged that the plaintiff has failed to submit three score cards and
thereby committed breach of terms and conditions. It is contended
that ample opportunity was given to the plaintiff to clear her dues. The
plaintiff failed to comply terms and conditions, therefore interference in
the decision of defendant club is not warranted for. It is further alleged
that the plaintiff has failed to comply basic conditions to continue her
provisional membership.
10. The plaintiff has filed a suit no. 3054 of 2018 for
declaration that her wards are entitled to enjoy the benefits and
privileges of her membership. It is further contended that the bye-laws
of the defendant club only allow member’s dependent children to use
the Golf club facilities. However the plaintiff is clothing ‘wards’ with
the member’s children to circumvent the bye-laws of the defendant
Golf club. It is further alleged that plaintiff is deliberately declaring her
wards to be her children to derive unlawful benefit to her wards free of
costs. It is alleged that the claim of plaintiff is not maintainable. The
defendant requested for dismissal of suit.
11. From the pleadings of parties, following issues are framed
at Exh.7 and findings thereon are recorded thereunder:
Sr.
No
Issues Findings
1. Whether plaintiff proves that she paid an
amount of Rs.6,18,760/- towards her
In the affirmative
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membership to defendant no.1 on
21/12/2017 ?
2. Whether plaintiff proves that she has handed
over two postdated cheques of Rs.10 lacs
each dated 02/05/2018, 06/12/2018 to
defendant no.1 for permanent membership ?
In the affirmative
3. Whether the plaintiff is entitled for
declaration to declare impugned lettger
dated 23/06/2019 and 28/07/2019 issued by
defendant no.3 stating that, plaintiff has
committed breach and has threatened to
terminate her provisional membership for
non-payment of balanc amount of
Rs.41,56,526/- and to forfeit the amount of
Rs.26,18,760/- paid by the plaintiff to
defendant no.3 as illegal, invalid, vindictive
and coercion ?
In the negative
4. Whether the plaintiff is entitled for the relief
of declaration that defendants have
committed breach of contract ?
In the negative
5. Whether the plaintiff is entitled to allow to
make remaining payment by installments/
EMI option as proposed of defendant vide
their email dated 03/05/2018 and
18/05/2018 ?
In the negative
6. Whether the plaintiff is entitled for the relief
of permanent injunction as claimed ?
In the negative
7. Whether suit is barred by the doctrine of res-
judicata ?
In the negative
8. What order and decree? As per final
order.
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REASONS
12. The plaintiff lead oral evidence by way of affidavit of
evidence of PW-1 Sucheta Desmond Rodrigues at Exhibit-9 and filed
documentary evidence along with list. Document at serial no.5 of the
list Exhibit-10-B letter dated 22/12/2017 (Exhibit-11), document at
serial no.8 email dated 04.05.2018 (Exhibit-12), document at sr no. 10
letter dated May 27,2018 letter no. BPGC/NEW MEM/ 2018-10 issued
by the defendant (Exhibit-13), email Exhibit-P annexed with the plaint
along with letter dated 18/04/2019 (Exhibit-14),document at sr no.17
letter dated 23/07/2019 issued by the defendant (Exhibit-15),
document of memorandum articles of associations and the bye-laws
(Exhibit-16) and closed evidence by filing pursis Exhibit-17.
13. The defendant lead oral evidence of DW-1 Shekhar Gupta
(Exhibit-18) on behalf of defendant no.1 to 3. Advocate seeking
permission to adopt cross examination recorded in Suit No. 3054 of
2018 with liberty to further cross examine the witness. Permission
granted to adopt cross examination recorded in suit no. 3054 of 2018
on condition to file certified copies i.e. certified copy of issues Exhibit-7,
evidence in chief off plaintiff and cross examination of PW-1 dated
09/02/2024 (Exhibit-9), pursis on behalf of defendants dated
06/01/2014 (Exhibit-10-A), list of documents marked as Exhibit-11 to
Exhibit-16 (Exhibit-10-B), copy of email dated 18/04/2019 (Exhibit-
14), pursis on behalf of plaintiff dated 28/02/2024 (Exhibit-17),
evidence in chief on behalf of defendants and cross examination of
DW-1 dated 30/04/2024, 06/05/2024, 10/05/2024 (Exhibit-18).
Advocate for defendant filed evidence closed pursis at Exhibit-20 and
tendered written argument at Exhibit-23.
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As to issues no. 1 to 7:-
14. Issue nos. 1 to 7 are arising out of same set of facts hence
discussed together. Plaintiff’s suit is for declaration that defendants
have committed breach of contract and for decree of injunction. The
plaintiff seek to set aside letter dated 23/07/2019 and 28/07/2019
issued by defendant no.3 and also seek declaration that action initiated
by defendants on the basis of letters referred above is illegal, invalid
and against the principles of natural justice. On the other hand the
defendant came with the defence that the plaintiff has committed
breach of agreement. It is further alleged that the plaintiff has
committed default in payment of entrance fees amount and did not
comply the terms and conditions of contract of her membership. The
question for consideration in the present suit is whether the action of
defendants is justified or not and which party to the contract is it
default.
15. The learned advocate for plaintiff would submit that the
present plaintiff is appointed as guardian of Master Amoorth Shetty and
Aadhya Shetty vide order dated 07/04/2017. He further pointed out
that plaintiff approached the defendant club seeking short term
membership. The plaintiff had submitted the details of all the four
children with the defendant club including order passed in
Guardianship Petition, showing that Master Amoorth Shetty and Aadhya
Shetty were the wards of plaintiff. He further pointed out that
thereafter within six months the plaintiff applied to convert the short
term membership in to ‘B’ category membership along with her
children being her dependents. He further made reference to the
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documentary evidence and tried to demonstrate that the defendant club
had followed the entire procedure as laid down in the articles of
association including scrutiny of membership form and interview by the
committee members ( Ballot). He pointed out that the membership of
plaintiff was confirmed by the defendant club. He would further argue
that the defendant club vide letter dated 14/09/2018 terminated the
membership of two children of plaintiff namely Amoorth and Aadhya
without following due process of law. He further pointed out that
defendant vide letter dated 23/07/2019 called upon the plaintiff to
make payment on or before 30/07/2019. He pointed out that the
defendant club is claiming that the plaintiff has committed default and
terminated the membership of the plaintiff. The learned advocate made
reference to the correspondence on record and submitted that the
plaintiff was entitled to avail facility of EMI. The learned advocate
further made reference to the payment receipt and pointed out that
issue no. 1 and 2 are not in issue. He would further submit that the
plaintiff has paid entire amount towards entrance fees to the defendant
club.
16. The learned advocate would further submit that the article
of association and bye-laws of the club do not prohibit wards from
availing the facility of defendant club. He pointed out that word
‘dependent children’ is referred in the bye-laws and article of
association of the defendant club and not biological children. He would
further argue that the defendant club had assured the plaintiff that the
plaintiff and her wards will be entitled to enjoy the benefits of the club.
He further submitted that there is exchange of offer and acceptance
between the parties and therefore the defendant club is estopped from
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changing their stand. He further submitted that the notice issued on
behalf of defendant is malafide and required to be quashed and set
aside.
17. The learned advocate would further argue that notices
dated 23/03/2019 and 28/07/2019 are illegal and cannot be upheld
under the law. He would further submit that contention of defendant
that the suit is hit by res-judicata is without merit. He would further
submit that the defendant club has not followed the principle of natural
justice. He would further submit that the evidence affidavit of DW-1 is
defective and cannot be relied. He would submit that DW-1 has not
clarified as to how much statement is based on his knowledge and
belief and statements on his information. The learned advocate relied
on the judgment in the case of Shyamsunder Rajkumar Vs. Bharat Oil
Mills; reported in 1963 Mh L.J. 414. He also relied on the Judgment in
the case of Hiralal Vs. Amarjeet Singh; reported in 1977 RLR 520. He
would submit that plaintiff has discharged burden to prove all the
issues. He requested to pass the decree in favour of plaintiff.
18. On the other hand the learned advocate for defendant
would argue that the letters in question are in accordance with Articles
of association and bye-laws of the defendant club. He further pointed
out that letters in question are not challenged by the plaintiff in the suit.
He would further submit that the Civil Court cannot sit in appeal on the
decision of defendant club. He would further submit that the review of
decision of defendant club is outside the scope of the jurisdiction of a
Civil Court. The learned advocate relied on Judgment of Hon’ble
Supreme Court in the case of T. P. Daver Vs. Lodge Victoria ; reported in
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AIR 1963 SC 1144 and Judgment of Hon’ble High Court in the case of
Matunga Gymkhana Vs. Sandeep P. Kishnani; reported in 2019 (4)
MhL.J.;. The learned advocate would further argue that the plaintiff
has paid amount of Rs.6,18,760/- vide voucher dated 21/12/2017 and
payment of Rs.10,00,000/-each was received on 04/05/2018 and
06/12/2018 respectively. He further pointed out that amount of
Rs.41,56,526/- was due and payable by the plaintiff as on 22/07/2019,
as a result of it notice of termination dated 23/07/2019 came to be
issued. He further pointed out that by email dated 28/07/2019 again
the plaintiff was called upon to pay outstanding dues amounting to
41,56,526/-by 01/08/2019 with intimation to the plaintiff that on
failure her membership shall be terminated. However plaintiff did not
pay outstanding dues. The learned advocate for defendant made
reference to the correspondence made on behalf of the plaintiff with the
defendant and tried to demonstrate that the plaintiff never requested to
clear the outstanding amount on installment / EMI option nor she was
permitted to pay outstanding amount on installment / EMI option by
the defendant club.
19. The learned advocate would further submit that the
letter dated 23/07/2019 and 28/07/2019 are issued in accordance with
the rules and regulations of articles of association and the bye-laws of
the defendant club. He would further submit that the plaintiff herself is
responsible for termination of her membership. He pointed out that the
breaches committed on behalf of plaintiff. He further pointed out that
the plaintiff has committed breach of terms and condition of
membership of defendant club. He further made reference to the oral
evidence of plaintiff and pointed out that mandatory provision /
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condition regarding three score cards for a temporary member of the
club is not complied with on behalf of plaintiff. He would further
submit that the plaintiff was given opportunity to comply the terms and
conditions of her membership, therefore the allegations regarding
violation of principles of natural justice on the part of defendant club
cannot be accepted. He further made reference to the correspondence
between the parties on record and pointed out that offer to make
payment by installment / EMI was never accepted by the defendant
club nor such offer was given to the plaintiff on behalf of defendant
club. The learned advocate made reference to articles no. 10 and 17
and submitted that plaintiff has committed breach of the articles of
association. He would further argue that the plaintiff is not entitled for
any relief.
20. The learned advocate would further submit that the
plaintiff in notice of motion no. 2917 of 2019 in suit no. 3054 of 2018
made identical and similar prayer sought in this suit. He would further
submit that similar issue was involved in notice of motion no. 2917 of
2019 in suit no. 3054 of 2018 and therefore the present suit is barred
by doctrine of res-judicata. He further pointed out that the said notice
of motion was heard on merit and was adjourned for passing order on
26/08/2019. However, in the mean time present suit came to be filed
by plaintiff. He would further submit that plaintiff is not entitled to
claim any relief in the present suit on the ground that similar relief is
sought in the notice of motion referred above. He would further
submit that the plaintiff has misrepresented by recording incorrect
information in her form for short-term and permanent membership. He
would further submit that plaintiff has approached the Court with
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unclean hands. The learned advocate has supported the decision of
defendant club and requested for dismissal of suit.
21. In this back drop, it is just and necessary to appreciate
pleadings and evidence on record. The plaintiff came with the case that
she paid an amount of Rs.6,18760/-towards her membership to
defendant no.1 and in addition she also paid amount of Rs.10 lacs by
cheque dated 02/05/2018 and 06/12/2018 to defendant no.1. The
plaintiff lead oral evidence by way of affidavit and reiterated all the
facts in terms of plaint. The plaintiff has produced on record a letter
dated 22/12/2017 issued by defendant club at Exhibit-11. The contents
of letter Exhibit-11 are not in dispute. By letter Exhibit-11 it was
informed to the plaintiff that she have been admitted as “short-term”
membership of the defendant club for a period of one year with effect
from 22/12/2017 with further direction to pay the amount of
Rs.6,18,760/-. The plaintiff has produced on record voucher issued by
the defendant club dated 21/12/2017. The contents of said voucher
are not in dispute. It is further seen that amount of Rs.6,18,760/- was
received by the defendant club from plaintiff. The plaintiff has also
produced on record voucher dated 11/05/2018. The voucher dated
11/05/2018 suggest that defendant club has received amount of Rs.10
lacs from the plaintiff towards club membership. Letter for termination
of provisional membership addressed to plaintiff is produced on record
at Exhibit-15. The contents of said letter are not in dispute. However,
validity and legality of same is challenged on behalf of plaintiff. By
letter Exhibit-15 the defendant club has admitted payment of Rs.10 lacs
by way of RTGS dated 04/05/2018 and rupees 10 lacs by RTGS dated
06/12/2018 made to them by the plaintiff. The plaintiff has brought on
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record reliable and convincing evidence to established the payment
made by her to defendant towards her membership. Moreover, the
payment made by plaintiff to the defendant worth Rs.26,18,760/- is not
in dispute in the present case. In the result, issues no. 1 and 2 are
answered in the affirmative.
22. The next question for consideration is whether impugned
letter dated 23/06/2019 and 28/07/2019 issued on behalf of defendant
club are legal or otherwise. For deciding the validity and legality of
both letters referred above, it is necessary to examine whether plaintiff
was entitled to make payment by installments / EMI option. Admittedly
amount of Rs.41,56,226/- was due and payable as on 22/07/2019.
From the cumulative reading of case law cited supra on behalf of
defendant, it is settled that the jurisdiction of a Civil Court is rather
limited, it cannot obviously sit as a Court of Appeal from decisions of a
authority like in the present case. The Court can set aside the order of a
authority, if the said authority acts without jurisdiction or does not act
in good faith or acts in violation of the principles of natural justice. In
this back drop, it is just and necessary to appreciate the evidence on
record to find out whether the defendant club acted without
jurisdiction and in violation of the principles of natural justice as
explained in the decisions cited supra.
23. The plaintiff lead oral evidence by way of affidavit and
reiterated all the facts in terms of plaint. She deposed that she made
application for ‘short-term’ membership for herself and her four children
and paid amount of Rs.6,18,760/- by cheque no.254506 dated
21/12/2017 towards her membership to the defendant club. She
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further deposed that she was informed by letter dated 22/12/2017 that
she was admitted as a member for ‘short-term’ commencing from
22/12/2017 for period of one year. She further deposed that she made
an application dated 21/03/2018 for permanent membership ( category
– B’). According to plaintiff she paid Rs.20 lacs to defendant club
towards her membership. The plaintiff further claims that she
requested to give option for making payment with the committee of
defendant club. The plaintiff further deposed that despite her
correspondence the defendant did not communicate about the quantum
of installments to be paid by her to the defendant club towards her
entrance fees. The plaintiff further claims that she has paid an amount
of Rs.26,18,760/- to defendant club towards principal amount of
membership fees and that she is ready to pay balance / outstanding
amount by installments / EMI. There is no dispute as regards payment
made by plaintiff of Rs.26,18,760/- and balance / outstanding payment
made by plaintiff under the order of Court. The question for
consideration is whether plaintiff has committed default in making
payment towards amount of membership fees and whether she was
granted facility to pay said amount by installment / EMI.
24. During cross examination the plaintiff admits that she did
not deposit amount of rupees 49 lacs with defendant club in one
installment. The plaintiff further admits that by email dated
04/05/2018 Exhibit-12 she did not asked for installment for making
payment to the defendant club. She further admits that she did not pay
balance amount after receiving letter dated. 18/04/2019 Exhibit-14.
She further admits that she paid balance amount in terms of order of
the Court dated 09/09/2019 passed in notice of motion no.3216 of
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Jud in Suit 3262 of 2019
2019. The form for permanent membership category – B submitted on
behalf of plaintiff is brought on record, wherein it is stated that the
plaintiff was required to pay an amount of Rs.50 lacs plus GST. The
form for permanent membership further shows that plaintiff has
declared her nephew Amoorth as son and her niece Aadhya as daughter.
Admittedly master Amoorth and ms. Aadhya are not the son and
daughter of plaintiff.
25. The articles of association more particularly rule 17 deals
with entrance fees. It provide that upon election as a permanent
member, each person shall pay such entrance fees as may be prescribed
from time to time by the committee in respect of the class of
membership to which he has been admitted. It further provide that no
newly elected member shall exercise any of the privileges of the
permanent membership until he has paid the full entrance fee and
subscription give and payable in respect of the class to which he is
admitted, unless the committee authorizes payment thereof in
installments. Sub- clause (b) of rule 17 empowers committee to
determine question regarding payment of entrance fees. Grant of
installments is within the discretion of committee. Sub clause (c) of
rule 17 provides the consequences for not making payment towards
entrance fees. It provides for termination of membership on the ground
of non-payment of entrance fees. The outer limit of three months for
making payment towards entrance fee is also prescribed in sub clause
(c) of rule 17. Admittedly, the plaintiff was informed by defendant vide
email dated 25/05/2018 regarding grant of provisional membership to
the plaintiff with further assurance to notify her membership on
completing the formalities. According to plaintiff she requested
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Jud in Suit 3262 of 2019
defendant club to give option and to suggest suitable method for
making payment towards entrance fee. It is alleged that despite
correspondence, the defendant club did not reply and suggest the
method for making payment towards entrance fee. The plaintiff made
reference to the correspondence and tried to suggest that she was to
pay amount of entrance fee by way of installment / EMI. The
correspondence in the nature of email is not on record. Email letter
dated 04/05/2018 addressed to defendant club is placed on record at
Exhibit-12, wherein the plaintiff has acknowledge the amount to be
paid to the defendant club towards entrance fee and requested the
defendant club to explain or to give understanding regarding amount to
be paid. Email letter dated 13/04/2018 addressed to defendant club is
brought on record on behalf of plaintiff, wherein the plaintiff disclosed
that she had already paid amount of Rs.6.18,760/- in the month of
December, 2017. By the said email letter plaintiff also seek permission
to make payment of Rs.10 lacs by 02/05/2018 and another payment of
Rs.10 lacs by 01/12/2018. In the same email letter plaintiff seek time
till 03/03/2020 for making balance payment. It is noteworthy to see
that the plaintiff did not approach the defendant club and requested to
accept balance entrance fee by way of installments / EMI, nor
committee of defendant club has determined the method for making
balance amount towards entrance fees in terms of rule 17 of article of
association. The plaintiff has committed default in making payment
towards entrance fees. Rule 10 articles of association provides that
temporary member shall be require to submit not less than three score
cards in respect of ground of Golf played by him on a club course.
According to plaintiff she was selected by ballot committee making her
eligible for membership and therefore action of defendant club
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Jud in Suit 3262 of 2019
accepting plaintiff’s membership amounts to waiver of condition
regarding submitting of three score cards in respect of rounds of Golf
played on club course. Thus, it is admitted fact on record that plaintiff
has not complied mandatory provision / condition regarding submitting
of three score cards in respect of rounds of Golf played on club course.
The witness examined on behalf of defendant club has categorically
stated during oral evidence regarding non-compliance of said
mandatory provision / condition. The plaintiff has not brought on
record the evidence to substantiate her claim that the said condition
was waived by the defendant club. The plaintiff has not produced
evidence in compliance of condition laid down in rule 10 of articles of
association.
26. From the correspondence on record, it is seen that the
plaintiff has given opportunity for making the payment. The plaintiff
herself has made correspondence and assured the defendant club to
make payment. The defendant club gave opportunity for making
payment of outstanding amount and thereafter issued letter of
termination of membership of plaintiff. Hence the allegations of plaintiff
that letter of termination is in violation of principles of natural justice
cannot be accepted. The plaintiff has failed to establish that she has
paid amount towards entrance fees in accordance with the provisions of
bye-laws and articles of association of defendant club. In this back drop
the case law cited supra on behalf of plaintiff will not come to the help
of plaintiff. The facts of the present case and the facts in the case law
cited supra are not identical.
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Jud in Suit 3262 of 2019
27. Admittedly, the plaintiff has paid entire amount under the
order of court towards entrance fees. However, it is also admitted fact
on record that amount towards entrance fee was due and payable prior
to letter dated 23/06/2019 and 28/07/2019. Admittedly the balance
amount of Rs. 41,56,526/- was due and payable towards entrance fee.
In this back drop the allegations of plaintiff that defendant club has
committed breach of agreement cannot be accepted. The plaintiff has
failed to comply mandatory provisions of articles of association and bye
– laws of defendant club. The plaintiff has failed to bring on record
reliable and convincing evidence to establish her entitlement for making
payment towards entrance fee by way of installment / EMI. The
plaintiff has paid entire amount towards entrance fee under the Order
of Court. In such circumstances, the defendant club cannot be permitted
to forfeit the said amount. The plaintiff is entitled for refund of amount
paid towards entrance fees. In such circumstances plaintiff is not
entitled to get relief of declaration and injunction. In the result, issue
no. 3 to 6 are answered in the negative.
28. The next question is for consideration is whether the suit is
hit by principle of res-judicata. It is the defence of the defendant that
present suit is not maintainable on the ground that prayers in the
present suit and prayers in the notice of motion no. 2917 of 2019 in the
suit no. 3054 of 2018 are identical. The learned advocate would argue
that the notice of motion no.2917 of 2019 was argued on behalf of
advocate for plaintiff and defendant and thereafter it was posted for
order on 26/08/2019. However, the plaintiff has filed present suit for
identical relief. The main object of the doctrine of the res-judicata is
that once the matter has been determined in a former proceeding, it
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Jud in Suit 3262 of 2019
should not be open to parties to re-agitate the matter again and again.
In order to constitute res-judicata, the following conditions must be
satisfied, (I) There, must be two suits – one former suit and the other
subsequent suit, (ii) The Court which decided the former suit must be
competent to try the subsequent suit, (iii) The matter directly and
substantially in issue must be the same either actually or constructively
in both the suits. (iv) The matter directly and substantially in issue in
the subsequent suit must have been heard and finally decided by the
Court in the former suit, (v) The parties to the suit or the parties under
whom they or any of them claim must be the same in both the suits;
(vi) The parties in both the suits must have litigated under the same
title. In the present case the issues in the present suit and issues in suit
no.3054 of 2018 are not identical. The subject matter of present suit
and suit no. 3054 of 2018 are not identical. The notice of motion no.
2917 of 2019 in suit no. 3054 of 2018 is filed for ad-interim relief.
Finding recorded in interlocutory application on any issue is not
sufficient to attract principle of res-judicata for subsequent suit. In the
above back drop the contention of defendant that suit is hit by principle
of res-judicata cannot be accepted, accordingly issue no.7 is answered
in the negative and following order is passed.
ORDER
1. Suit stands dismissed with costs.
2. Plaintiff is at liberty to make application to defendant club
for refund of amount paid towards entrance fees in terms
of observation made in para no.27 of this judgment. The
defendant club do pay amount to plaintiff within one
month from the date of application.
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Jud in Suit 3262 of 2019
3. Decree be drawn up accordingly.
(R. R. Patare )
Judge,
Date: 05/07/2024. City Civil Court, Greater Mumbai.
(C R No.1)
Dictated on :05/07/2024
Transcribed on :05/07/2024
Signed on :05/07/2024
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Jud in Suit 3262 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 06.07.2024 NAME OF STENOGRAPHER(GI)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court
room no.)
Shri R. R. Patare
(Court Room No.01)
Date of Pronouncement of
JUDGEMENT/ORDER
05.07.2024
JUDGMENT/ORDER signed by
P.O. on
06.07.2024
JUDGEMENT/ORDER uploaded on 06.07.2024
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