Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Common order in NM 3344/19 along with
NM 408/21 in Suit No. 2421/19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3344 OF 2019
CNR NO. : MHCC010091522019
ALONG WITH
NOTICE OF MOTION NO. 408 OF 2021
CNR NO. : MHCC010012862021
IN
S.C. SUIT NO. 2421 OF 2019
C.S. Krishnan & Ors. …. Plaintiffs
Versus
Trombay Malayalee Samskarika Samithi & Ors. ….Defendants
Appearance:
Adv. Mr. Tushar Jadhav along with Adv. S.S. Redekar for Plaintiffs.
Adv. Mr. P.R. Rajkumar for defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 08.12.2021
ORAL ORDER
(Dictated in open Court)
The Notice of Motion No. 3344 of 2019 is filed by the
plaintiffs to temporarily restrain the defendants from holding the
elections of Managing Committee of defendant no. 1 declared and
scheduled by the defendants on 08.09.2019 as per Item No. 8 on
Agenda of 24th Annual General Body Meeting and restrained defendant
no. 2 from declaring the election result of the Managing Committee of
the defendant no. 1.
2. The Notice of Motion is supported by Affidavit of
Sureshkumar B.K. The contents of the plaint is adopted. The plaintiffs
have filed the suit for declaration and injunction of the elections of
defendant no. 1 and has sought permanent injunction from holding
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2 Common order in NM 3344/19 along with NM
408/21 in Suit No. 2421/19
elections on 08.09.2019. The plaintiffs are members of defendant no. 1
Trust. The tenure of the defendant no. 1 Managing Committee Trust
expired in the month of March, 2019. The defendant no. 1 has to
conduct the elections of Managing Committee before the expiration of
the tenure. However, they didn't conduct the elections and called
Special General Body Meeting on 28.10.2017 and declared that the
elections will be held on 08.09.2019. The plaintiffs have complained
about the irregularities of the Managing Committee to the Charity
Commissioner by complaint dated 08.01.2019. They have wrote a
complaint to the PMO and various other authorities of the management
of the committee.
3. The plaintiffs stated that the present Managing Committee
has already expired their term on 27.03.2019. Therefore is de facto
trustee and non dejure (legal) trustees. The President has no power to
appoint defendant no. 2 as Election Officer. The allegations against the
Managing Trustee is that they have enrolled their relatives so that they
will be sure that they will be elected in the elections to be held.
4. The plaintiffs stated that the defendant no. 1 Trust is
holding school and property approximately 1000 sq.mtrs., which is of
Crores of rupees and various builders are approaching the school
authority and Managing Committee and trying to influence them for
giving the school land property for redevelopment. The act of the the
defendant no. 1 calling General Body Meeting on 08.09.2019 is illegal,
invalid and void. Hence, prayed to allow the Notice of Motion.
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408/21 in Suit No. 2421/19
5. In this Notice of Motion, at the time of hearing of ad
interim order on 07.09.2019, my predecessor has passed order that,
“It is not in dispute that the earlier committee
term is expired on 26.03.2019 and the election
is not taken within 3 months. The election is
schedule on 08.09.2019 of which notices are
already serve to the members. Thus, in my view
instead of granting stay to the entire election
proceeding, the result of the election needs to
be stayed and that will be subject to the result of
the Notice of Motion”.
6. The defendants have filed Written Statement and not filed
reply to the Notice of Motion. They have denied the contents of plaint in
toto. The plaintiffs wish to make the trust as a Family Trust, as they
were struggling to intrude several members of the Same Family. The
Trust has the prime responsibility to protect the interest and safety of
the same owned by all the members with a mutual trust and faith. The
plaintiff no. 3 has entered into a conspiracy to gather more than seven
members of his own family. The nomination form was written in the
name of Mr. Bose Prabhakaran, but not signed by him. It reached after
the notified date and time for submission of the same to the Election
Officer. The defendants have denied all the allegations against the
members of the Committee in toto.
7. The defendants filed Notice of Motion No. 408 of 2021 to
issue direction to open the ballot box kept sealed as per the order dated
07.09.2019 to conduct the election in General Body Meeting dated
08.09.2019 as the arrangements were already made and declare the
results. The Notice of Motion is supported by Affidavit of Venu
Raghavan, General Secretary of the trust.
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4 Common order in NM 3344/19 along with NM
408/21 in Suit No. 2421/19
8. The plaintiffs through Affidavit of Suresh Kumar V.K., the
plaintiff no. 3 filed reply and has objected by stating the same
contentions taken in the plaint. It is settled principle of law that any
Managing Committee which exceeds its tenure is barred from taking
any policy decision on behalf of Association. The defendants enrolled 52
new members in defendant no. 1 Trust out of 70 applications received
by them. The number of new membership forms to be distributed was
not decided in the Annual General Meeting. The defendants gave 18
new membership to their direct relatives and gave candidature to 6
newly enrolled members, though they were not approved in the Annual
General Meeting. On 08.09.2019, total 65 members have casted their
votes in the election out of which 19 were panel members/persons who
contested the elections, 18 were relatives and new members illegally
enrolled by the defendant no. 1. Therefore, the defendants are knowing
and sure that they will get minimum 37 number of votes in the election
out of 65 votes. This is the reason why the defendants did not enroll
other local Keralites in the Trust so that they will confirm their victory
in the said elections.
9. In view of the above pleadings of the plaintiffs, the
following points arise for my determination and the reasons with
finding thereon are as under :
POINTS FINDING
1) Whether the plaintiff has made
out a prima facie case?
No
2) In whose favour balance of
convenience lies?
Defendant No. 1
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3) Who will suffer irreparable
loss?
Defendant No. 1
4) What order? The Notice of Motion no.
3344/2019 is rejected.
The Notice of Motion No.
408/2021 is disposed of.
R E A S O N S
10. Heard Advocate Adv. Mr. Tushar Jadhav for Plaintiffs and
Advocate Mr. P.R. Rajkumar for defendants. Perused the contents of
both the Notice of Motions and reply supported by Affidavit. I have
gone through the record. I have also gone through the written argument
filed by the defendant.
As to point no. 1
11. The plaintiffs are seeking temporary injunction in the form
of the main relief not to hold the elections of defendant no. 1 Trust. The
defendants have filed the constitution/rule and regulations of the Trust.
The objective of the Trust is to work for the betterment of Malayalee
Community in their socio cultural and education field and to promote
and manage educational institutions like schools, night schools, reading
rooms, libraries, sports, games and hostels. The Clause 4 of
“Membership” is given to a Malayalee who is a bonafide resident under
the jurisdiction of Clause 2 i.e. area between Chembur Naka,
Govanpada and Mahul Village in northsouth direction and between
Suman Nagar and Trombey in the EastWest direction. The central
location of the organization is Vashi Naka and Chembur Colony. The
age of the person is 18 years to become member. The application shall
be submitted to the managing committee along with the residential
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proof and other conditions are stated therein.
12. The rules and regulations of the plaintiff no. 1 Trust in
respect of “Election” Clause 6 is that the election of the managing
committee members shall be held once in three years; the managing
committee shall appoint an election officer to conduct the election with
the help of the President and the Managing Committee. The “Election
Rule” Clause 7 shows that a member who has been a member for last
three months shall have the right to vote or contest for the Managing
Committee in the General Body Meeting or in any election. Only those
who are present in the meeting are entitled to vote.
13. The plaintiffs have made various allegations against the
committee members, against the management of plaintiff no. 1 Trust.
The complaints are pending before the Charity Commissioner. In
respect of allegations of sale of the property to the builders except the
contention in the plaint, there is nothing on record to show that the
committee members at any time had dealt with any such builder to
develop the trust property. The only allegation for not holding and
declaring the elections is that the decision is taken by the committee
members whose tenure was completed and they have no such power to
call Annual General Meeting and held the election. At the same time,
the plaintiffs have termed the committee member as de facto trustee
and not dejure (legal) trustees.
14. As per roznama dated 07.09.2019, the plaintiffs argued for
adinterim order to stay the election scheduled to be held on
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7 Common order in NM 3344/19 along with NM
408/21 in Suit No. 2421/19
08.09.2019. The adinterim order in respect of not holding the elections
was not granted however, the result of the elections was stayed and was
subject to result of the Notice of Motion.
15. Advocate for plaintiff has relied on authorities reported in :
i. Mohamad Maqbool Mohamad Khaja & Ors. Vs. State of
Maharashtra & Ors. : 1982 Mh.L.J. 417;
ii. Manik Sidhanna Patil & Ors. Vs. Vithal Nagappa Mali & Ors.
in First Appeal No. 1224 of 2010 in Civil Application No.
3232 of 2010 dated 08.09.2010 (BHC);
iii. Man Industries (I) Ltd. Vs. Jagdish Chandra Jhamaklal
Mansukhani in Appeal from Order (St.) No. 19663 of 2013
in Civil Application (St.) No. 19666 of 2013 dated
24.07.2013 (BHC);
iv. Sandeep Ram Meghe & Ors. Vs. Pundlikrao Balaji Gohad
(Dead) & Ors. : 2013 (4) Mh.L.J. 703
16. Considering the nature of allegations in the plaint, it is in
respect that the elections are not held in time prior to completion of the
term of the committee members. There is delay in holding the elections.
The election has already been held in view of the adinterim order.
Therefore, the relief in respect of not holding the election doesn't
survive. It is the result of those elections which is now in dispute. The
plaintiffs have already participated in the said elections. In the reply to
the Notice of Motion No 408 of 2021, the objection is only on the
ground that it is the defendants who have enrolled the membership to
their relatives, therefore they are much sure that they are going to win
the elections.
17. I have gone through the authorities relied by the plaintiffs.
The facts are different, hence ratio not applicable.
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18. The plaintiff society is to be managed by the committee
members to be elected as per the constitution of the plaintiff no. 1
Trust. The same cannot be withhold by filling the suit and restraining
the plaintiff no. 1 society being represented to carry on daytoday
affairs/business of the society. The object of the society is for the
educational benefit of the community. Hence, I hold that the plaintiff
has not made out prima facie and answer point no. 1 in negative.
As to point no. 2 & 3
19. The plaintiffs have not made out prima facie case. The
plaintiffs are trying to stop the process of the elections of the committee
members through which the defendant no. 1 Trust has to manage its
affairs to impart the basic object of the trust i.e. education to the
community. On the basis of vague allegations in respect of management
i.e. redevelopment of the land of the trust, injunction cannot be
granted. There is no specific contention in respect of who, when and
which developer tried to approach the committee member i.e. the name
of the committee member to whom they approached, I hold that the
balance of convenience is not in favour of the plaintiff. On the contrary,
till the committee members are elected by the elections, the earlier
members has to continue and get the elections hold so that the
members who are elected as committee members will continue the
office of defendant no. 1 Trust for its management. Therefore, I hold
that it is the defendant no. 1 Trust, which will suffer loss for not getting
an elected committee member to manage the affairs of the Trust.
Balance of convenience is in favour of defendant no. 1. Accordingly,
answer point no. 2 & 3 of the Notice of Motion No. 3344 of 2019.
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20. In respect of Notice of Motion No. 408 of 2021 filed by the
defendants, as Notice of Motion No. 3344 of 2019 is not maintainable,
therefore the question of grant of any relief in Notice of Motion No. 408
of 2021 will not arise, as in the adinterim order dated 07.09.2019, it
was observed that the result of election will be subject to the result
of the Notice of Motion. Hence, pass following order :
ORDER
1. The Notice of Motion No. 3344 of 2019 is rejected.
2. As Notice of Motion No. 3344 of 2019 is rejected and in view of
specific adinterim order passed on 07.09.2019, the Notice of
Motion No. 408 of 2021 is disposed of.
3. No order as to costs.
4. Accordingly, Notice of Motion No. 3344 of 2019 is disposed of.
(SMT.S.S.Nagur)
Judge
City Civil Court,
Date :08/12/2021 Greater Mumbai.
Pronounced on : 08.12.2021
Dictated on : 08.12.2021
Typed on : 15.12.2021
Checked & Signed on : 15.12.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
16/12/2021 11.00 a.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
08/12/2021
Judgment/order signed by P.O on 15/12/2021
Judgment/order uploaded on 16/12/2021
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