Karnataka High Court
Dr Gonchigari Narayana vs Sri Jagadeesh S on 24 April, 2014
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF APRIL 2014
BEFORE
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
M.F.A No.1477/2013 (CPC)
C/W
M.F.A No.1478/2013 (CPC)
BETWEEN:
1. DR. GONCHIGARI NARAYANA
S/O LATE GIRIYAPPA,
AGED ABOUT 63 YEARS,
R/AT NO.8, RED OAK COURT
MOLINE ILLINOIS-61265
UNITED STATES OF AMERICA
AT PRESENT R/AT NO.16/21,3B
PEARL PALACE APARTMENT,
PALACE CROSS ROAD,
CHAKRAVARTHI LAYOUT,
BANGALORE- 560020
2. SMT. JAYANTHI NARAYANA
W/O DR. GONCHIGARI NARAYANA
AGED ABOUT 55 YEARS,
R/AT NO.8, RED OAK COURT
MOLINE ILLINOIS-61265
UNITED STATES OF AMERICA
AT PRESENT R/AT NO.16/21,3B
PEARL PALACE APARTMENT,
PALACE CROSS ROAD,
2
CHAKRAVARTHI LAYOUT,
BANGALORE- 560 020
3. MISS. PRIYADARSHINI
D/O DR. GONCHIGARI NARAYANA
AGED ABOUT 29 YEARS,
R/AT NO.8, RED OAK COURT
MOLINE ILLINOIS-61265
UNITED STATES OF AMERICA
AT PRESENT R/AT NO.16/21,3B
PEARL PALACE APARTMENT,
PALACE CROSS ROAD,
CHAKRAVARTHI LAYOUT,
BANGALORE- 560 020
4. SMT. ANASUYA RAMAKRISHNA
W/O G. RAMAKRISHNA,
AGED ABOUT 50 YEARS,
AT PRESENT R/AT NO.1344,
3RD CROSS, MRHB COLONY,
VIJAYANAGAR NORTH,
BANGALORE- 560 079
5. MS.SHILPA RAMAKRISHNA
D/O G. RAMAKRISHNA,
AGED ABOUT 27 YEARS,
AT PRESENT R/AT NO.1344,
3RD CROSS, MRHB COLONY,
VIJAYANAGAR NORTH,
BANGALORE- 560 079
.. Appellants common in
both the appeals
(By Sri Shanmukappa for
H.N. Shashidhara, Kesvy & Co., Adv., )
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AND :
1. SRI. JAGADEESH. S
S/O SRI G. SRINIVASALU,
AGED ABOUT 39 YEARS,
R/AT NO.19,
"MARUTHI NILAYA" 6TH CROSS,
1ST MAIN, PRASHANTH NAGAR
BANGALORE- 560 079
2. SRI. S.Y. KUMAR
S/O SANNA VEERAPPA,
AGED ABOUT 38 YEARS,
R/AT HULIGERE VILLAGE,
MADHALUR POST, SIRA TALUK
TUMKUR DISTRICT- 571110
3. SRI. N.R. RAJANNA
S/O RANGANTHAPPA,
AGED ABOUT 35 YEARS,
R/AT NO.99/E, 16TH MAIN
VIJAYANAGAR,
BANGALORE- 560 040
4. SRI SANNA VEERAPPA
S/O LATE THIMMAPPA,
AGED ABOUT 72 YEARS,
R/AT HULIGERE VILLAGE,
MADHALUR POST, SIRA TALUK
TUMKUR DISTRICT- 571110
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5. SRI VENKATESHWARA EDUCATION TRUST
NO.96, SRI MARUTHI INDUSTRIAL
TOWN, PEENYA II STAGE,
BANGALORE-560 058
REPRESENTED BY ITS SECRETARY
S. JAGDEESH S.
Respondents common
in both the appeals.
(By Sri Prasanna Kumar for
Kumar & Kumar, Adv.,)
These MFAs are filed under Order 43, Rule(1)(R) of CPC,
against the Order dated 15.12.2012 passed on I.A. Nos. I and 2 in
O.S. No. 1784/2012 on the file of the 44th Additional City Civil &
Sessions judge, Bangalore.
These MFA having been heard and reserved for Judgment,
coming on for Pronouncement of Judgment this day, the Court
delivered the following:-
JUDGMENT
These appeals are filed by the original plaintiffs questioning the order passed by the Court below on I.A. Nos.1 and 2 in O.S. No.1784/2012 dismissing the said applications. I.A. No.1 was filed by the plaintiffs/appellants before the Court below under Order XXXIX Rules 1 and 2 of Code of Civil Procedure ('CPC' for short) seeking an order of 5 Temporary Injunction restraining the defendant No.1/Respondent No.1 or anybody claiming through him from acting as Trustee or Secretary of Sri Venkateshwara Education Trust, in any manner, pending disposal of the suit. I.A. No.2 was filed by the plaintiffs/appellants before the Court below under Section 151 of CPC praying to appoint Ms. Priyadarshini Narayan (Plaintiff No.3/appellant No.3) as the Secretary of Sri Venkateshwara Education Trust situated at Dasanapura village, Bangalore North taluk.
2. O.S. 1784/2012 came to be filed by the appellants herein for a direction to defendant No.1 to furnish books of accounts from August-2005 till the date of filing the suit in respect of Sri Venkateshwara Education Trust registered on 10.8.2005 and for Permanent Injunction restraining the defendants or anybody claiming under or through them from interfering with the affairs of Sri Venkatehswara Education Trust and its institutions. Further relief claimed 6 by the plaintiffs is to remove the defendant No.1 from the post of Trustee as well as Secretary of Sri Venkateshwara Education Trust. Certain other reliefs are also sought for.
The case of the plaintiffs/appellants is that on 3.8.2002 defendant No.1 alongwith defendants 2 to 4 have got registered a Trust in the name and style of Sri Venkateshwara Education Trust at No.96, Sri Maruthi Industrial Town, Peenya 2nd Stage, Bangalore, which is a charitable trust ; Subsequently, a registered supplementary deed was executed on 15.7.2005. However the said Trust was revoked by the defendants and the deed of revocation was registered in the office of the Registrar on 10.8.2005; On the very day, the plaintiffs and defendant No.1 registered another Trust by name Sri Venkateshwara Education Trust, which is also a charitable trust; The plaintiffs are said to be contributing large amount of money which they have earned in United States of America for 7 more than two decades; Since defendant No.1 was in India, he was appointed as Secretary of the Trust and he was in complete control of the affairs of the educational institutions run by Venkateshwara Education Trust and he was responsible for day to day administration and maintenance of books of accounts; The plaintiffs trusted defendant No.1 and believed that he is carrying on the activities strictly in accordance with law and would furnish books of accounts regularly to the Trustees; The defendant No.1 did not furnish the books of accounts since its inception except for one year i.e., 2006, after registration of the new Trust on 10.8.2005; Despite the request of the plaintiffs, defendant No.1 did not furnish books of accounts; Since the plaintiffs did not get any information relating to the educational institution, they approached the Rajiv Gandhi Health Sciences University seeking information and documents in respect of Venkateshwara Education Trust and obtained certain documents; Thereafter the defendant 8 No.1 having come to know the attempts made by the plaintiffs to get information about the Trust, fraudulently got registered the document dated 21.8.2008 to revive the earlier trust deed dated 3.2.2002, which was earlier revoked by the registered document; the defendant No.1 asserted that he is not responsible to furnish the books of accounts to the plaintiffs; defendant No.1 has also started misleading the authorities by filing the papers of revocation. The Trust is running the educational institution in the names of Sri Venkateshwara College of Nursing and Sri Venkateshwra School of Nursing. The 1st plaintiff is the Chairman of Sri Venkateshwara Education Trust. Defendant No.1 being the Secretary is accountable to all the Trustees in respect of the business of Sri Venkateshwara Education Trust. The defendant No.1 allegedly has misappropriated the funds of Sri Venkateshwara Education Trust and its institutions. Thereafter several proceedings were initiated by the plaintiffs against the defendant No.1. The details of 9 misappropriation were also furnished by the plaintiffs. On these among other grounds, the Original Suit as well as application for Temporary Injunction are filed.
The case of defendant No.1 is that after registering the Trust on 3.8.2002 in the name and style of Sri Venkateshwara Education Trust by defendants, the defendant No.1 started Nursing Course & College in B.Sc., as well as Diploma in Nursing ; None of the plaintiffs are concerned to the educational institutions started by Sri Venkateshwara Education Trust which was registered on 3.8.2002 (supplementary deed was executed on 15.7.2005) ; The Board of Trustees i.e., the defendants passed a Resolution on 27.7.2005 to revoke the Trust created on 3.8.2002 and accordingly, the Trust was revoked on 10.8.2005; The Trustees later having felt that the Deed of Revocation registered on 10.8.2005 would seriously jeopardise the interest of the students, decided to continue 10 the erstwhile Trust created on 3.8.2002 and hence cancelled their earlier decision relating to revocation by executing the Deed of Cancellation on 24.10.2006 and consequently the Trust registered on 3.8.2002 created by the defendants revived and the Trustees i.e., defendants are running the colleges effectively. It is further case of the defendants that the Trust Deed dated 10.8.2005 is only nominal Trust Deed and the same does not create Trust and the object of the Trust is to run Montessori, Nursery and it did not have any philanthropic idea; The Trust created on 10.8.2005 did not function and consequently no bank account was opened and no activities at any point of time were commenced and as such the question of mismanagement does not arise; the plaintiffs taking the advantage of the identical names of the two Trusts registered in the years 2002 and 2005 are attempting to create confusion with regard to the Trusts. The defendants denied the allegations made against them by the plaintiffs. 11
3. Since Sri Venkateshwara Education Trust is a charitable Trust registered under the Trusts Act, the suit is filed under Section 92 of CPC after obtaining leave of the competent Court. For getting the permission, the plaintiffs filed Misc. No.985/2010 before the competent Civil Court, which came to be allowed. The order of the Civil Court is confirmed by this Court in CRP No.128/2012 c/w CRP No.129/2012 disposed of on 21.8.2012. It is relevant to note that the plaintiffs have produced all the relevant records including the documents of the Trust to show that the defendant No.1 has misappropriated the funds of Sri Venkateshwara Education Trust registered in the year 2005 alongwith the plaint and the petition filed under Section 92 of CPC seeking leave to prosecute the suit. As aforementioned, the order of the Civil Court under Section 92 of CPC is confirmed by this Court.
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4. The orders passed by the Competent Civil Court in Misc.No.985/2010 as well as by this Court in CRP No.128/2012 c/w CRP No.129/2012 are part of the records before the Court below in the present case. The plaintiffs heavily relied upon those orders also alongwith the other documents while arguing the application for Temporary Injunction. It is also relevant to note that all the records produced by the plaintiffs alongwith the petition under Section 92(1) of CPC are also produced by the plaintiffs alongwith the plaint in the suit and are relied upon while seeking the order of Temporary Injunction.
5. The Trust Deed discloses that the Secretary shall call for all meetings of the Governing Council as and when deemed necessary and the general body meetings and the special general body meetings as per the rules with the previous approval of the President ; the Secretary shall maintain the minutes book and record all the proceedings of 13 the meetings. The president is empowered to preside over all the meetings of the Board of Trustees; He shall be the Chief Spokesman of the Trust.
Paragraph-12 of the Trust Deed further states that the Board of Trustees shall meet once in a month or as often as necessary for prompt and expeditious conduct of the business of the Trust.
6. The Trust Deed further discloses that the Trust shall be managed by the Board of Trustees consisting of Managing Trustees who shall hold the office for life. The Board of Trustees shall elect from among themselves a President, Secretary and Treasurer and who shall hold the office for a period of five years or until their successors are elected. Vacancies of Trustees arising out of death, resignation or for any other reason shall be filled from among the patrons/donors and well-wishers of the Trust having faith in and committed to the objects of the Trust by 14 a majority decision of the Board of Trustees. The Board of Trustees shall be responsible for managing the affairs of the Trust in accordance with law, in such a manner as to promote and effectively carry out the objects of the Trust and for proper maintenance of accounts. They shall be answerable for all the activities of the Trust.
Thus it is clear that the Trustees will hold the office for life. However the office bearers such as President, Secretary, Treasurer will hold the office for five years. The Trust Deed is silent as to when the Trustee can be removed from the Board of Trustees or from the post of any office bearer of the Trust prematurely.
In that regard, counsel for respondents argued that the defendant No.1 being the Secretary of the Trust, cannot be removed or suspended from the post of Secretary for a period of five years from the date of his appointment; Since there is no clause in the Trust Deed for removal of a 15 person from the office which he holds prematurely, the suit itself according to the defendants is not maintainable.
Such submission cannot be accepted. Had there been any clause in the Trust Deed for removal of Trustee or a person holding the post of Secretary etc., the plaintiffs would have taken appropriate action for removal of the Secretary in accordance with such clause in the Trust Deed. In the absence of such clause relating to removal of office bearer from the post which he is holding or from the post of a Trustee, the only course open to the plaintiffs is to approach the Civil Court for appropriate relief under Section 92 of CPC. The plaintiffs have got every right to approach the Civil Court to obtain a decree for removing the defendant No.1 as a Trustee and for appointing a new Trustee. So also the plaintiffs can approach the Civil Court for removal of the defendant No.1 from the post of Secretary and to appoint another person as Secretary in his 16 place. It is also open for the plaintiffs to seek direction for production of the accounts and to hold enquiry. Since the plaintiffs can approach the Civil Court under Section 92 of CPC, they have rightly approached the Civil Court for appropriate reliefs {see L. SHIVALINGAIAH .vs. PANCHAJANYA VIDYA PEETHA WELFARE TRUST (REGD.), BANGALORE AND OTHERS - (2007)5 KLJ 625}. Hence the observations of the Civil Court that the Trustee shall hold the office for life, despite any proved allegation against the Trustee, is not just and proper.
7. The Civil Court while deciding Misc. No.985/2010 on 29th February 2012 has observed thus:
12. So far as the contention of the respondents that the petitioners filed the petition for vindicating their personal rights is concerned, I have examined the records produced in the case.
In the petition, there is averment that the first 17 respondent has not furnished the books of account of the Trust and its institutions for the last five years except for one year. There is also averment that the respondent No. 1 embezzled the money belonging to Sri Venkateshwara Education Trust and, in fact, he has diverted the funds to Pragathi Nursing College, a separate college established under Sri Vinayaka Education Trust, now changed as Vishnu College of Nursing, solely with the purpose of diverting the funds from Sri Venkateshwara Education Trust. It is also averred in the petition that the respondent No.1 has refused to submit the books of account and attend the meeting called for by the Board of Trustees, the petitioners herein. Regarding these averments made in the petition, the materials produced by the petitioners by way of documents clearly go to show that there is breach of trust and its objects. The petitioners produced the document i.e., statement of account from the Axis Bank Limited, Basaveshwar Nagar, Bangalore dated 14.9.2007, total number of pages 27, and this letter is addressed to M/s Sri Venkateshwara Education Trust. On page-184 of 18 the documents produced by the petitioners along with the list of documents, total 37 documents, perusing the entries in the accounts extract under the heading annual expenditure, it is mentioned as LIC inspection bribe Rs.6,00,000/-, INC bribe Rs.5,00,000/-, clinical bribe Rs. 10,00,000/-, community bribe Rs.1,00,000/-, Pragathi College and School purchased Rs.80,00,000/- and in the same document under the heading other expenses it is shown as INC inspection bribe (SVSN) Rs.10,00,000/-, INC inspection bribe (SVCN) Rs.10,00,000/-, INC bribe (PSN) Rs.13,00,000/-, INC Inspection bribe (PCN) Rs.13,00,000/- and the Government Orders bribe Rs.18,00,000/-. So, all these entries shown in the expenditure statement in respect of Sri Venkateshwara Education Trust, it clearly goes to show that how the respondents have mismanaged the financial affairs of a public charitable Trust.
13. Perusing the object of the Trust in the Trust Deed dated 10.8.2005 under the heading accounts it is mentioned that proper books of 19 account of the Trust shall be maintained every year with respect to all sums of money received and expended on account of the Trust and matters in respect of which such receipts and expenditures take place and the liabilities and assets for the time being of the Trust. It is also mentioned that the accounts shall be duly audited by the Chartered Accountant every year. But, looking to the documents produced in the case, the balance sheet and income and expenditure account is only for three years i.e., 2004, 2005 and 2006. But, what is happened with regard to the other period, no details are forthcoming. Whether there was no income and expenditure for those years from 2005 till the date of filing the petition except for the year 2004, 2005 and 2006. So, this also requires a detailed enquiry about maintaining the accounts of the Trust as mentioned in the Trust Deed.
14. As per the clauses in the Trust Deed books of account of the Trust shall be kept at the registered office of the Trust or at such other place/s as may from time to time be determined 20 by the trustees. But, in this case, there is averment in the petition that the respondent No.1 has not at all furnished the books of account to the petitioners and the documents produced by the petitioners go to show that even for getting the books of account they have filed application under the Right to Information Act. This primafacie goes to show that the allegations made by the petitioners in the petition regarding non-furnishing of books of account is true. In the Trust Deed it is mentioned that every month there shall be a meeting of the Board of Trustees. Even it is the allegation that the respondent No.1 has not attended the board meeting and there is no material on record even from the side of the respondents to show that monthly meetings were held as per the clauses in the Trust Deed and the resolutions were passed regarding the administration and management of the affairs of the Trust Deed. Regarding the alleged misdeeds i.e., misappropriation of the Trust funds for his personal use and also mismanagement of the funds and non-furnishing of the books of account, the petitioners got issued the legal notice to the 21 respondent No.1 through their advocate. So, these all go to show that petitioners placed primafacie material in support of the averments they have made in the petition and also in the annexed suit. To deny the allegations made by the petitioners even respondent No.1 has not produced the documents to show that every year accounts were audited properly.
15. So far as the averments made by the petitioners in the petition that the respondent No.1 registered a separate Trust i.e., Vinayaka Education Trust, in which he is running Pragathi Nursing College, as I have already observed above, there is an entry made in the expenditure statement under the head Annual Expenditure as Pragathi College and School purchased Rs.80,00,000/-. So, this also prima facie goes to show that the petitioners have placed the materials in support of the contentions they have taken in the petition. There is averment in the petition and also in the annexed suit that there is totally mismanagement of the funds of the Trust and proper accounts are not maintained.
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Therefore, looking to all these aspects, it cannot be said that the petitioners filed the present petition for vindicating their personal rights. But, the materials go to show that filing of the present petition by the petitioners and the annexed suit is to vindicate the public rights, since the Trust being a public charitable Trust. Therefore, the contention of the respondents cannot be accepted.
(Emphasis supplied) Ultimately, the Civil Court has concluded that the petitioners in the Misc. Petition (plaintiffs in the suit) have placed material to show that the Trust registered on 10.8.2005 is a public charitable Trust and there is breach of trust and mismanagement, misapplication as well as misappropriation of the Trust funds by the defendant No.1. Based on the aforementioned findings, the Civil Court allowed the application filed under Section 92 of CPC. 23
8. This Court in CRP No.128/2012 c/w CRP No.129/2012 while confirming the order passed in Misc. No.985/2010 has observed thus:
9. From the discussion made supra, referring to judgment made in MFA 3886/2011, I have held that Sri Venkateshwara Education Trust is a public charitable trust. As per the plaint, second petitioner (first respondent before the court below) is alleged to have misappropriated the funds of trust. The respondents have produced documents to show that second petitioner (first respondent before the court below) has purchased an institution called Pragathi College and School for a sum of Rs.80 Lakhs. If these allegations are proved, that would certainly constitute breach of trust and misappropriation of trust funds.
9. It is relevant to note that the Pragathi College and School purchased by the 1st defendant for a sum of Rs.80,00,000/- is the private property. This Court while 24 deciding CRP No.128/2012 c/w CRP No.129/2012 has observed that the plaintiffs (respondents in Civil Revision Petitions) have produced documents to show that the 1st defendant has purchased an institution called Pragathi College and School for a sum of Rs.80,00,000/- and if those allegations are proved, that would certainly constitute breach of trust and misappropriation of trust funds. Thus it is primafacie held by the Civil Court as well as this Court earlier while deciding the petition under Section 92 of CPC that the defendant No.1 has misappropriated huge funds and has given bribe to various governmental and non- governmental authorities from out of the funds of the Trust. All such entries are found in the accounts maintained by the defendant No.1 in respect of Sri Venkateshwara Education Trust. Those account extracts are obtained by the plaintiffs at the time of filing the suit by filing the application under the provisions of Right to Information Act. 25
10. It is curious to note that though the Court below while passing the impugned order also relies upon the very observations made by the Civil Court in Misc. No.985/2010 as well as this Court in CRP 128/2012 c/w CRP 129/2012, has not given due credence to the aforementioned observations of this Court. It is also relevant to note that the Court below though has primafacie concluded that the entries made in the account statements show that the funds of Sri Venkateshwara Education Trust are misused and misappropriated, has refused to grant the order of injunction in favour of the plaintiffs by arbitrarily observing that the aforementioned observations may not be sufficient for granting the Temporary Injunction against the 1st defendant.
11. The Court below has negatived the prayer of the plaintiffs for Temporary Injunction mainly on the ground that the main prayer in the suit as well as the prayer in the 26 application for Temporary Injunction are one and the same. It is no doubt true that normally the Court would avoid granting Temporary Injunction in case if the granting of interim order amounts to decreeing the suit. But in the matter on hand, the facts and circumstances are otherwise. In case if the order of Temporary mandatory Injunction is not granted, there is every likelihood that the entire amount standing in the name of Sri Venkateshwara Education Trust registered in the year 2005 may be siphoned or diverted by defendant No.1 who is the Secretary of the Trust for his personal purposes. If such procedure is allowed, then there is every likelihood that nothing may remain in the Trust at the time of disposal of the suit.
12. This Court is conscious of the fact that the interim order sought for by the plaintiffs is in the nature of temporary mandatory injunction i.e., for a direction to the 27 1st defendant to vacate his seat as Secretary and to make way for one of the plaintiffs to continue as Secretary. Virtually the plaintiffs want handing over of the Management of the Trust from defendant No.1 in favour of one of the plaintiffs. As has been held by the Apex Court in the case of MOHD. MEHTAB KHAN .vs. KHUSHUNMA IBRAHIM (AIR 2013 SC 1099), grant of mandatory interim relief requires the highest degree of satisfaction of the Court; much higher than a case involving grant of prohibitory injunction; It is, indeed, a rare power.
13. The relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. 28
Thus the Court would grant the interim mandatory injunction only if the plaintiffs have a strong case for trial. That is, it shall be of a higher standard than a primafacie case that is normally required for prohibitory injunction. Such order shall be granted only if it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
14. I find that the exercise made by the trial Judge is palpably incorrect and untenable. The view taken by the trial Judge is not a possible view at all. Since the order of temporary mandatory injunction is absolutely necessary in this matter in order to prevent irreparable and serious injury, which cannot be compensated in terms of money, that too keeping in mind the object with which the Trust is created, the order of Court below cannot be sustained. In my considered opinion, the Court below has not exercised its discretion judiciously under the facts and circumstances 29 of the case, but has exercised the same arbitrarily and capriciously.
15. The records, more particularly, the account extracts maintained by the defendant No.1 clearly reveal that about Rs.86,00,000/- is paid by the defendant No.1 towards bribe to State Government Authorities. Another sum of Rs.80,00,000/- is misappropriated by the defendant No.1 for purchasing Pragati Educational Institution, which is the private property of defendant No.1.
16. Thus in order to maintain status quo, atleast as on this date, the order of injunction needs to be granted. The plaintiffs would suffer irreparable injury in case if the prayer for interlocutory order of injunction is not allowed. The balance of convenience also lies in favour of the plaintiffs. Since the relief by way of interlocutory order would mitigate the risk of injustice to the plaintiffs, more particularly to the 30 Trust in question, the Court below ought to have granted the order of Temporary Injunction. In the matter on hand, if the defendant No.1 is allowed to continue in the post of Secretary during the pendency of the suit, as aforementioned, nothing may remain in the account of the Trust in question and consequently the plaintiffs cannot be compensated in terms of damages. Moreover the Trust is a charitable trust and it is not a profit making institution. Since the object of the Trust has to be carried on day to day basis and if the funds of the charitable trust are diverted to personal account of the Secretary, then the object with which the Trust is created would be frustrated. Consequently, the damage to be caused to the Trust cannot be compensated in terms of money.
17. The Court below though in paragraph-35 of the impugned order has observed that the allegation of the plaintiffs against defendant No.1 regarding non-furnishing 31 of books of accounts and so also the allegation with regard to the defendant No.1 not calling for Board Meetings and not attending the Board Meetings are proved, has gravely erred in coming to a wrong conclusion.
18. On going through the entire material on record and the order of the Court below, I am of the considered opinion that the Court below is not justified in rejecting the application filed by the appellants. The reasons assigned and the conclusions arrived at by the Court below are not just and proper. In the light of the definite finding reached by the Court below in the impugned order as well as in the light of the order passed by the competent Civil Court in Misc. No.985/2010 and this Court in CRP 128/2012 c/w CRP 129/2012, in my considered opinion the Court below has no other alternative, but to grant the order of injunction against the defendant No.1 restraining him from continuing in the post of the Secretary of the Trust in order 32 to maintain status quo with regard to the Trust in question as well as in order to maintain the funds of the Trust. The Court below has completely ignored the fact that the Trust in question is a charitable trust and in case if the defendant No.1 is allowed to continue in the post of Secretary, there is every likelihood of the funds being diverted and consequently the object of the Trust being frustrated. The account extract obtained under the Right to Information Act relating to Sri Venkateshwara Education Trust clearly reveals misappropriation and misapplication of funds of the Trust by the defendant No.1. Defendant No.1 has not only given huge amounts of bribe to governmental and non- governmental agencies, but also diverted huge sums of money for his personal use.
Thus I conclude that the order of the Court below is perverse and arbitrary as well as opposed to law and facts. Hence the same is liable to be set aside.
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Though the plaintiffs have prayed for appointment of the 3rd plaintiff/3rd appellant - Miss Priyadarshini Narayana as the Secretary of Sri Venkateshwara Education Trust, in my considered opinion, no useful purpose will be served in appointing her as the Secretary of the Trust inasmuch as she is also the resident of United States of America. It may not be possible for her to participate in the day to day affairs of the Trust, which is situated at Bangalore. Hence plaintiff No.4, who is the resident of Bangalore shall be appointed as Secretary during the pendency of suit, until further orders.
Accordingly, the following order is made:
(i) Appeals are allowed. Impugned order
stands set aside.
(ii) The 1st defendant or anybody claiming
through him is restrained from acting as
the secretary of Sri Venkateshwara
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Education Trust registered on
10.8.2005, pending disposal of the suit.
(iii) Plaintiff No.4 viz., Smt. Anasuya Ramakrishna who is the resident of Bangalore shall be appointed as the Secretary of the Trust during the pendency of the suit or until further orders. It is needless to observe that plaintiff No.4, who is the newly appointed Secretary by virtue of this order shall perform the duties of the Secretary strictly in accordance with law and as per the Trust Deed dated 10.8.2005.
Sd/-
JUDGE Gss/-