Final Order 2

Order Details: Copy of Judgment
Pdf Text: S.C.Suit No. 2421/19. 1 Judgment (Exh.40).
MHCC010091742019
Presented on : 06-09-2019
Registered on : 06-09-2019
Decided on : 03-07-2023
Duration : 3 years, 9 months, 27 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
S. C. SUIT NO. 2421 OF 2019
EXHIBIT NO.40.
1) C.H. Krishnan )
Age 76 yrs., Occ. Business )
R/at Super Fine Printers, )
Ram Tekadi, Chembur Colony, )
Mumbai 74 )
2) Bose Prabhakaran )
Age 52 yrs., Occ. Business, )
R/at A49/302, Collector's Colony, )
Chembur, Mumbai 74 )
3) Sureshkumar V.K. )
Age 42 yrs., Occ. Business )
R/at Hari Apartment, Maroli )
Church, Chembur, Mumbai 74 )...Plaintiffs
Versus
1) Trombay Malayalee Samskarika )
Samithi, A Trust Registered under )
the Bombay Public Trust Act, 1950, )
having Office at T257, Kairali, )
Ramtekdi, Chembur Colony, )
Mumbai 74 )
2) T. Unni Menon )
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S.C.Suit No. 2421/19. 2 Judgment (Exh.40).
Adult, Occ. )
Election officer of the Def.No.1 )
At T257, Kairali, Ramtekdi, )
Chembur Colony, Mumbai 74 )...Defendants
SUIT FOR DECLARATION AND INJUNCTION.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 3rd JULY, 2023.
Shri Nitesh P. Hinduja, Advocate for the plaintiffs.
Shri P.R.Rajkumar, Advocate for the defendants.
JUDGMENT
(Delivered on 3rd July, 2023)
1. This is a suit for declaration and injunction.
2. Brief facts of the plaintiffs' case are as under :
The plaintiffs are the members of the defendant no.1 trust.
The defendant no.2 is the election officer appointed to conduct the
election of the managing committee. It is alleged by the plaintiff that
the elections for the managing committee of defendant no.1 conducted
on 27/03/2016 for the period of three years i.e. from 2016 to 2019.
The period of managing committee was expired in the month of March,
2019. The defendant ought to have conduct the election immediately
after the expiry of the term but it took long time. In meanwhile, the
defendant no.1 added more than 50 persons as a new members of the
defendant no.1, after expiry of the term, defendant no.1 could not take
the policy decision, addition of new members is also illegal. There are
many irregularities in conducting day to day business of the trust. The
defendant no.1 unreasonably collected the amounts from the students
as well as membership fee from newly added members, so also the
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S.C.Suit No. 2421/19. 3 Judgment (Exh.40).
intention of the defendant in joining hands with builder to utilize/ gave
the land of the trust for redevelopment. All these activities are without
the consent of the members of the trust and without the policy decision
of the trust. Thus, plaintiffs prayed that the managing committee of
defendant no.1 declared the schedule of the election on 08/09/2019 be
declared as illegal, null and void and without any legal authority.
Plaintiffs also claim that defendant no.2 be restrained from holding the
elections of managing committee on 08/09/2019.
3. The defendants appeared in the matter and resisted the suit
by filing written statement on record vide Exh.5. It is alleged by the
defendants that the entire allegations of the plaintiffs are vague. The
defendant no.1 never added new members those are relatives of the
office bearer no.1. There is nothing on record to show that managing
committee has taken the policy decision which is nonbeneficial to the
defendant no.1. It is alleged by the defendants that the plaintiffs with
ulterior motive to grab or to have a control over the defendant no.1
trust made false allegations of irregularities as well as giving land for
development. The addition of new members those are relatives of the
office bearers is also false and misconceived. It is alleged by the
defendants that the working of the defendant no.1 trust is as per the
provisions of law and byelaws of the trust. Hence, defendants prayed
for dismissal of the suit.
4. On going through the pleadings of the parties, my
predecessor has framed the issues vide Exh.7. I reproduce the same for
determination alongwith my findings thereon for the reasons
enumerated below :
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S.C.Suit No. 2421/19. 4 Judgment (Exh.40).
SR.NO. ISSUES FINDINGS
1. Whether plaintiff proves that the
defendant No.1 has no power/authority
to take any policy decisions as their
term is over on 27.03.2019 ?
In the Negative.
2. Whether plaintiff proves that the
declaration of elections by defendants
on 08.09.2019 as per item no.8 on
Agenda of 24th Annual General Body
Meeting is illegal, invalid and void ?
In the Negative.
3. Whether plaintiff is entitled for
declaration and permanent injunction
as prayed for ?
In the Negative.
4. What Order and Decree ? Suit is dismissed.
REASONS
5. In support of the pleadings, parties have filed on record
evidence and documents. On behalf of plaintiffs Mr. Bose Prabhakaran
deposed as PW 1 (Exh.8) who is plaintiff no.2 in the suit. Mr. Pilanku
Chathu Kunhikannan deposed as PW 2 (Exh.36). He is a member of the
defendant no.1 trust. Then plaintiffs closed his oral evidence.
Defendants had not adduced any oral evidence. Plaintiff has filed on
record the following documents :
Exhibit No. Particulars of Documents Remarks
Exh.11 The copy of Election Program 2016 to
2019.
Original.
Exh.12 The Copy of Letter dated 28/10/2017. Original.
Exh.13 The Copy of Complaint dated
08/01/2019.
Original.
Exh.14 The Copy of Complaint dated
21/08/2018.
Original.
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S.C.Suit No. 2421/19. 5 Judgment (Exh.40).
Exh.15 The Copy of Letter of Notice. Original.
Exh.16 The Copy of Letter for eligibility. Original.
Exh.17 The Copy of Notice for Distribution of
Forms.
Xerox.
Exh.18 The Copy of Notice for Closing of Forms
dated 27/10/2017.
Xerox.
Exh.19 The Copy of List of Old Member. Xerox.
Exh.20 The Copy of New Member of TMSS. Xerox.
Exh.21 The Copy of Rejected Nomination Form
of Plaintiff No.2.
Original.
Exh.22 The Copy of Letter of Mr. Kunhi Kannan. Original.
Exh.23 The Copy of Letter dated 06/10/2019,
regarding Copies of the Minutes.
Original.
Exh.24 The Copy of Letter Mr. Vinod Kumar. Xerox.
Exh.25 The Copy of Letter dated 12/09/2019. Original.
Exh.26 The Copy of Screen Shot, conversation
between the plaintiff no.2 and
defendants.
Xerox.
Exh.27 The Copy of TMSS given to Charity
regarding AGM dated 06/12/2015.
Xerox.
Exh.28 The Copy of Annual Report (Book). Original.
Exh.29 The Copy of Report of Change. Xerox.
Exh.30 The Copy of Order on Exh.01, of Hon'ble
Asst. Charity Comm.
Xerox.
Exh.31 The Copy of Letter of Deserve Exim Pvt.
Ltd. Dated 24/07/2018.
Xerox.
Exh.32 The Copy of List of New Added Member
Related Family Members.
Xerox.
Exh.33 The Copy of Plaintiff No.2 Resignation
from Post of V.P.
Xerox.
AS TO ISSUES NO.1, 2 AND 3 :
6. I have taken all these issues together for discussion as they
are interconnected with each other. For want of repetition, I have
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S.C.Suit No. 2421/19. 6 Judgment (Exh.40).
discussed all these issues simultaneously. I have gone through the
written notes of arguments submitted by both advocates. The main
allegation of the plaintiff is that the defendant no.1 trust have three
years body. The last time election was conducted in the year 2016.
Therefore the managing committee has to conduct the election just
completion of their terms. But defendant no.1 did not conduct the
election immediately. On the other hand, they have added their
relatives as a member of the trust so as to they should win the general
election of the trust. The plaintiff has given the copy of relatives of the
managing committee. The second allegation of the plaintiff is that the
working of managing committee of defendant no.1 trust is unlawful.
The election process also not followed the time format and provisions of
law, especially the byelaws of the trust. There is a violation of the time
schedule in conducting election. During the course of arguments, the
plaintiff had given the details that the time gap of filing nomination
form is not as per the provisions of law. Therefore, the election process
is void ab initio.
7. Another allegation of the plaintiff is that the defendant
no.1 in joining hands with builder tried to redevelop the land of the
trust without taking resolution in the general body meeting without the
consent of the members and with an ill intention to gain the profit for
themselves. It is further alleged by the plaintiff that the defendant
managing committee members illegally collected the amount from the
students of the school. Therefore, the defendant no.1 be restrained from
taking any policy decision. The election officer appointed by the
defendants is illegal, he has no authority, power to call the election.
8. The advocate for the defendant had made allegations
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S.C.Suit No. 2421/19. 7 Judgment (Exh.40).
against the plaintiff that there are 7 members of this plaintiff no.3's
family are already members of the trust. The defendant in his written
notes of arguments had given the list of it. The defendant alleged that
there is nothing on record to show that the managing committee
members taken disadvantage or acted against the interest of the trust.
The advocate for the defendant drawn my attention towards the
admissions given by Bose Prabhakaran (PW 1) in his crossexamination.
Hence, the contention of the defendant that plaintiff has not filed on
record any document to show that the election conducted by the
defendant no.1 is against the provisions of law or byelaws of the trust,
the managing committee is carrying out the day to day affairs of the
trust against the interest of the trust. Hence, prayed for dismissal of the
suit.
9. The allegation of the plaintiff that the office bearers
secretly distributed the forms to the relatives and added them as a
member of the trust. But in this respect in crossexamination PW 1
admitted that there is no provision in the trust to publish notice calling
for distribution of the membership. PW 1 admitted that he never went
to the office of the trust, therefore could not state that whether notice of
distribution of forms and submission of it is displayed on the board or
not. This witness admitted that he was present in person when the
forms were distributed. He admitted that he heard that the forms were
distributed to the relatives of the committee members. So it means he
has no personal knowledge about the same.
10. The main allegation of the plaintiff that the managing
committee of the defendant no.1 trust illegally hold annual general
body meeting though they have no authority to do so. As the term of
-- 7 of 11 --
S.C.Suit No. 2421/19. 8 Judgment (Exh.40).
managing committee was over, therefore they have no right to appoint
the election officer. The third allegation of the plaintiff is that the
programme published by the election officer is not as per the provisions
of law. The time gap is not sufficiently followed and less time is given.
There is no clear 15 days prior notice given to hold the election as per
the law. The president has no power to appoint the defendant no.2 as
election officer as his term was already expired. In this respect, I have
gone through crossexamination of PW 1. He had given vital admission
which goes to the root of the case. The question was asked to Bose (PW
1) that whether he has any evidence to show that a single person was
denied membership in the trust. But this witness could not state name
of single person. This witness further admitted that enrollment of any
new member is the discretion of the governing committee. The question
was asked to Bose (PW 1) that where the provision for appointment of
an election officer is written in the Constitution. He stated that he does
not know the relevant provision. Further Bose (PW 1) stated that there
is no reference of days to conduct election. Further this witness stated
that he does not know whether documents are handed over to the
builder or not. This witness further admitted that fees collected from
the students is the natural process. This witness further admitted that
there is no provision in the byelaws of sending messages through
photos, whatsapp or email etc.
11. So all above admissions goes to show that allegations
levelled against trustees of defendant no.1 are vague, baseless and
without any evidence. Nothing brought on record by the plaintiff to
show that defendants illegally collected fees from the students. Nothing
brought on record by the plaintiff that defendant illegally added new
members those are close relatives of trustees.
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S.C.Suit No. 2421/19. 9 Judgment (Exh.40).
12. So on going through all above admissions, it shows that
these plaintiffs have taken part in the elections conducted. The plaintiff
also contested the election and as per the order of the court the votes
does not count and kept in a sealed condition in the office of defendant
no.1. The plaintiff no.2 who is a witness on behalf of plaintiff has
admitted that he never went in office of defendant no.1 when the forms
were distributed. In crossexamination, he clearly admitted that there
are 7 to 8 close relatives of the plaintiff are the members of the trust. So
in my opinion, allegations made by the plaintiff that defendant
managing body has no authority to conduct the election and appoint
the election officer is not sufficiently brought on record.
13. The contention of the plaintiff that the managing
committee members have no authority to take the policy decision as
their term is over in March, 2019. I have gone through entire pleadings
and written notes of arguments so also documents filed on record. The
only contention of the plaintiff that without authority the President
appointed the election officer after the completion of the term
committee members arranged emergency annual general meeting as
their term was expired in March, 2019 they have no authority to
conduct annual general meeting. The allegation that the relatives of the
office bearers illegally admitted as a member of the trust but defendant
brought on record that the close relatives of the plaintiff such as wife,
sister and brother are the members of the trust. On going through the
oral and documentary evidence, it gets clear that plaintiff has not able
to state name of any single person whose membership was denied by
defendant. On the other hand, plaintiff witness clearly admitted that all
his close relatives are members of trust. Further plaintiff witness could
not state the exact provisions of appointment of election officer. Further
-- 9 of 11 --
S.C.Suit No. 2421/19. 10 Judgment (Exh.40).
plaintiff witness admitted that collection of fees from students is normal
process. So also nothing brought on record that defendant no.1 trustees
have handed over any documents to builders for the redevelopment of
trust property. Therefore, in my opinion, nothing brought on record that
the committee members have taken any policy decision.
14. The Hon'ble High Court in Appeal from Order No.
522/2021 order dated 10/03/2022 held :
“3. Needless to say that elections' result of the
Respondent No.1 shall be declared forthwith.”
So defendant is entitled to open ballot box in presence of all plaintiff
and defendants by obtaining signature of both the parties.
15. The plaintiff also made allegation regarding giving land for
the development without the consent of the members and without the
approval of annual general meeting. But no sufficient document filed on
record to show that the land of the trust had given for redevelopment
and there is any further development with regard to it. So, in my
opinion, there is nothing brought on record by the plaintiff to show that
defendant no.1 has taken the policy decision after the term was expired.
Therefore, in my opinion, the plaintiff is not entitled for the relief
prayed. Considering this, I answer issues no.1 to 3 in the negative and
pass following order :
ORDER
1. S.C.Suit No. 2421/2019 is dismissed with cost.
-- 10 of 11 --
S.C.Suit No. 2421/19. 11 Judgment (Exh.40).
2. S.C.Suit No. 2421/2019 is disposed off.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 03/07/2023. Mumbai.
1. Dictated on : 03/07/2023.
2. Transcribed on : 07 & 10/07/2023.
3. Placed for correction on : 11/07/2023.
4. Checked on : 14/07/2023.
5. Correction carried on : 17/07/2023.
6. Signed on : 19/07/2023.
7. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/07/2023. 1.37 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 03/07/2023.
Judgment/Order signed by P.O. on 19/07/2023.
Judgment/Order uploaded on 20/07/2023.
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