Madras High Court
P.T.Ummer Koya vs The Tamilnadu State Chess Association on 23 August, 2005
Author: P.K.Misra
Bench: P.K.Misra
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23/08/2005
Coram
The Hon'ble Mr.Justice P.K.MISRA
and
The Hon'ble Mr. Justice N.KANNADASAN
O.S.A.No.177 of 2005
and O.S.A.No.178 of 2005
and
C.M.P.Nos.13427 to 13429 of 2005
O.S.A.No.177 of 2005
P.T.Ummer Koya
Honorary Secretary
All India Chess Federation
Naju Rivage, V.K.Krishna Menon Road,
Panniyankara,
Calicut-673 003 .. Appellant
-Vs-
1.The Tamilnadu State Chess Association
rep., by its Honorary Secretary,
Manuel Aaron, Hall No.75,
Jawaharlal Nehru Statidum,
Chennai-600 003.
2.Delhi Chess Association
rep., by its Honorary Secretary
Bharat Singh, 149 Dhaka Mukherjee Nagar,
New Delhi 110 009.
3.Maharashtra Chess Association
rep., by its Chairman R.M.Dongre
Having its office at Kedge Electronics
Harbhat Road, Tilak Chowk,
Sangli 416 416, Maharashtra.
4.S.L.Harsh
5.P.K.Bhaskaran
6.V.R.Bobba
7.State Bank of Travancore
Meenachanda Branch,
rep., by its Branch Manager,
Meenachantha, Kozhikode .. Respondents
O.S.A.No.178 of 2005:
P.T.Ummer Koya
Honorary Secretary
All India Chess Federation
Naju Rivage, V.K.Krishna Menon Road,
Panniyankara,
Calicut-673 003 .. Appellant
vs.
1.The Tamilnadu State Chess Association
rep., by its Honorary Secretary,
Manuel Aaron, Hall No.75,
Jawaharlal Nehru Statidum,
Chennai-600 003.
2.Delhi Chess Association
rep., by its Honorary Secretary
Bharat Singh, 149 Dhaka Mukherjee Nagar,
New Delhi 110 009.
3.Maharashtra Chess Association
rep., by its Honorary Secretary
Sanjay Kedge
Having its office at Kedge Electronics
Harbhat Road, Tilak Chowk,
Sangli 416 416, Maharashtra.
4.N.Srinivasan
Honorary President All India Chess
Federation, No.6, Arch Bishop Mathia
Avenue, R.A.Puram,Chennai-600 028.
5.Sowmen Majumdar
Honorary Secretary
All India Chess Federation
Gorky Sadan,
No.3, Gorky Terrace,
Kolkotta-700 017. .. Respondents
These Appeals are preferred against the orders of this Court dated
9.8.2005 in O.A.No.258 of 2005 in C.S.No.211 of 2005 and O.A.No.62 of 2005 in
C.S.No.52 of 2005 dated 9.8.2005.
!For Appellant in
both appeals : Mr.T.V.Ramanujam,
Sr. counsel for
Mr.R.Venkatavaradhan.
^For Respondents 1to3
in both appeals : Mr.N.S.Sivam for
Mr.Sivam Sivanandaraj
For Respondents-4&6
in OSA 177/2005 and
for Respondent-5 in
OSA 178 of 2005 : Mrs.Nalini Chidambaram,
Sr. Counsel for Mr.N.Umapathi
For Respondent-4 in
OSA 178 of 2005 : Mr.P.S.Raman, Sr. Counsel
for Mr.A.Umashankar
:COMMON JUDGMENT
N. KANNADASAN, J.
The above appeals arise out of common orders passed by the learned Judge of this Court in O.A.No.62 of 2005 in C.S.No.52 of 2005 and O. A.No.258 of 2005 in C.S.No.211 of 2005 dated 9.8.2005.
2. C.S.No.52 of 2005 is filed by the plaintiffs therein, who are the respondents 1,2 and 3 in O.S.A.No.177 of 2005, restraining the defendants 2 and 3 from holding any post in the All India Chess Federation till they are absolved of the charges of misfeasance and malfeasance and for a permanent injunction restraining them from interfering with the day today administration and activities of the said federation. In the said suits, the application viz., O.A.No.62 of 2005 is filed restraining them from interfering with the day today administration and activities of All India Chess Federation. In C.S.No.211 of 2005, similar relief is claimed by the plaintiffs, who are the respondents 1,2, and 3 in O.S.A.No.178 of 2005, as aga inst the first defendant therein, who is the second defendant in C.S.No.52 of 2005 viz., restraining him from holding any post or interfering in the affairs of All India Chess Federation in any manner or any other capacity till he is absolved of his charges, misfeasance and malfeasance apart from other reliefs. In the said suit, the application No.258 of 2005 is filed seeking a relief as against the defendants 1,2,3 and 4 from interfering with the day today administration and activities of All India Chess Federation in any manner and in any capacity pending disposal of the suit.
3. The interim orders were granted originally in the said applications which were later on made absolute with further direction which is under challenge in the above appeals. The above appeals are filed by the second defendant in C.S.No.52 of 2005 and the first defendant in C.S.No.211 of 2005.
4. The plaintiffs have filed the applications by contending that there were several misfeasance and malfeasance on the part of the second and third defendants in C.S.No.52 of 2005 and the contesting defendants in C.S.No.211 of 2005. Originally interim orders were granted by the learned Judge of this Court in favour of the plaintiffs.
5. The defendants/respondents in the applications have filed an application to vacate the interim orders wherein all the allegations made in the applications were denied. During the pendency of the said applications, the first defendant in C.S.No.52 of 2005, in exercise of the emergency powers of the President, had convened a meeting on 19.2 .2005 and appointed Mr.D.V.Sundar and Mr.N.K.Mishra to coordinate with him for the day today administration.The learned Judge by order dated 9.8.2005 passed an order, making the interim orders as absolute and also directed the President to convene a general body meeting by giving 21 days notice who shall be assisted by Mr.D.V.Sundar and Mr.N. K.Mishra; that general body meeting shall be held under the supervision of the Hon'ble Mr. Justice A.K.Rajan, a retired Judge of this Court.
6. The learned senior counsel Mr.T.V.Ramanujam appearing for the appellants and Mrs.Nalini Chidambaram on behalf of the second and fourth defendants in C.S.211 of 2005 contended that the order of the learned Judge is liable to be set aside for various reasons. One of the contentions urged by the learned counsels is that even though the suits itself are not maintainable, with a view to approach this Court, the first defendant in C.S.No.52 of 2005 is made as a formal party and by obtaining an order of leave to file the suits, the plaintiffs have obtained interim orders to which they are not entitled to. It is further contended that the President of the Association has violated the orders in holding a meeting on 19.2.2005 even though there was an earlier order in the connected proceedings that he shall not convene any such meeting. It is further contended that mere allegations of misfeasance and malfeasance as against the defendants cannot be construed as a basis for the grant of interim orders and a separate mechanism is provided for in the bye law itself and as such, the remedy lies only in terms of the said bye-laws. It is further contended that the learned Judge having held that the application for injunction in a connected application viz., O.A.No.61 of 2005 in C.S.No.52 of 2005 is beyond the scope of the suit, ought not to have granted an interim order in the connected applications. It is also contended that the learned Judge has not assigned any reasons, more particularly about the existence of any materials with regard to the malfeasance and misfeasance and as such, the plaintiffs are not entitled for the grant of interim orders. A further contention is raised to the effect that the President shall not convene the general body meeting with the assistance of Mr.D.V.Sundar and Mr.N.K.Mishra and an order of status-quo ante should be granted whereby the appellant shall be permitted to act as Honorary Secretary who alone is empowered to render all assistance in the convening of the meeting in the capacity as an elected Secretary, since his term actually expires only on 30.9.2005. It is only in view of the interim orders granted earlier, he has chosen to opt out as a Secretary and as such, he should be permitted to act as a Secretary until the election process is completed.
7. Per contra, the learned senior counsels Mr.N.S.Sivam and P.S. Raman appearing for the contesting respondents contended that it is not correct to state that the suits are not maintainable and as such, the plaintiffs are not entitled for the grant of interim orders. In this connection, it is pointed out that on earlier occasion, the defendants have filed an application to revoke the leave which was dismissed and a further appeal filed by them was also dismissed by a Division Bench of this Court. Hence, the question of maintainability has no relevance in deciding the application for the grant of interim orders, more particularly, the application filed by them to revoke the leave having been dismissed. It is also contended that the Secretary who was injuncted has indulged in several malpractices and committed irregularities and by making use of an interim order passed in the connected proceedings, he has chosen to operate the bank accounts and withdrawn huge amounts. It is not correct to state that the President has convened a meeting on 19.2.2005, contrary to the earlier order passed by this Court and in fact, it is only the appellant has claimed as though he has convened a valid general body meeting on 19.2.2005 which was not accepted by the learned Judge.
8. The learned senior counsels appearing for the respondents would further contend that as regards the non existence of the materials relating to misfeasance and malfeasance is concerned, the learned Judge has considered various allegations raised in the applications including the withdrawal of the cash from the bank accounts by the second defendant. It is further contended that unless the interim orders are granted, it would cause irreparable loss to the plaintiffs and considering the prima facie case and balance of convenience in favour of the plaintiffs, the orders do not call for any interference.
9. In the course of the arguments, learned senior counsel Mr.P.S. Raman has agreed that the President would convene the meeting without the assistance of the two individuals viz., Mr.D.V.Sundar and Mr.N.K. Mishra, since the appellants have raised the said issue as one of the primary objection and the President, in order to dispel with any such apprehensions, has come forward with the said proposal.
10. We have considered the rival contentions of the learned counsel appearing on either side.
11. The point for consideration is as to whether in the facts and circumstances of the case, the order of the learned Judge is sustainable in law or not?
12. As regards the first contention urged by the learned counsels for the appellants that the interim orders ought not to have been granted inasmuch as the suits are not maintainable, prima facie we do not agree with the said contention, in view of the fact that the suits were filed seeking leave of the learned Judge and subsequent application to revoke the said leave was rejected which was later on upheld by the Division Bench. However, it is open to the appellant to agitate this matter at the time of final hearing.
13. With regard to the other contentions viz., no materials exist with regard to the misfeasance and malfeasance is concerned, and a separate machineries provided in the bye law itself is concerned, though the learned Judge has not rendered any finding with regard to such acts, the learned Judge has specifically observed that he was not inclined to go into the said question by referring that it would be always proper to leave the decision to the counsel or the general body. Though the learned Judge has not rendered any finding, it is useful to refer to the order dated 31.1.2005 in O.A.No.62 of 2005 wherein the following facts are considered at the time of grant of interim orders which reads as follows:-
"The plaintiff is the Tamil Nadu State Chess Association. A perusal of the paper book filed before this Court shows that on and with effect from 12.12.1958, All India Chess Federation had come to be registered with the Registrar of Societies, Chennai North under Registration No.126/1958. The allegation in the plaint and in the affidavit filed in support of the various applications is that the said Society continues to be in force and is functioning with their office at Chennai. While this being so, in July 1991, another Society namely, All India Chess Federation, had come to be registered with their office at Calicut and according to the learned counsel for the plaintiff, that Society registered before the Registrar of Societies at Calicut, is a parallel organisation to that of the Society already registered at Chennai way back in the year 1958. Therefore two institutions cannot be allowed to function in respect of management of the game of chess in India. Articles of Association of the Society registered at Calicut show the second defendant in the suit as the Secretary. Learned counsel for the plaintiff would state that the third respondent is now functioning as the Honorary Treasurer of the Society registered at Calicut and in managing the affairs of the said Federation at Calicut, a large sum of money is drawn for purposes not connected with the activities of the association itself and to that extent, the association fund is eroded. A sum of Rs.1 crore is contributed every year by the Government of India and a further sum of Rs.1 crore is collected from the various member association and the public and to protect the corpus of the association, interim orders are necessary as otherwise the interest of the association would be completely damaged. On the above noted facts, the plaintiff prays for an order of injunction restraining the second and third respondents from interfering with the day today affairs of the All India Chess Federation (O.A.No.62/2005) and injunction restraining the second respondent from acting as the All India Chess Federation's representative and functioning as the VicePresident of FIDE and Chairman of the Common Wealth Chess Association (O.A. No.61/2005).
2. Having regard to the facts brought to the notice of this Court namely, two parallel associations are functioning, one at Chennai registered way back in the year 1958 and the other at Calicut registered in the year 1991, I am of the opinion that the interest of the association must be necessarily protected even at this stage as otherwise, substantial injustice would be done to the association. To a question put to the learned counsel for the plaintiff as to why they are coming before this Court after 14 long years after registration of the parallel society at Calicut, the learned counsel answered that only recently they have come to know about the registration of the Society at Calicut and since fraud is detected only now, they are before this Court without any waste of time. On the above noted facts, I am of the opinion that an ex parte order of injunction has to be granted and accordingly it is granted. Notice. Order 39 Rule 3 to be complied with."
It cannot be suggested that the learned Judge, while passing final orders in the above applications, has not taken note of the above said order. It is only in the light of the above facts and circumstances and by considering the fact that the term of the office bearers coming to an end on 30.9.2005, while making the interim orders as absolute, the learned Judge has chosen to pass an order directing the President to convene the general body meeting as stated supra. It is also not disputed that the President is empowered to convene the general body meeting under special circumstances and in the light of the disputes involved, it cannot be held that convening the general body meeting would cause any prejudice to the parties.
14. Under the above mentioned reasons, the learned Judge has chosen to exercise the discretionary power for the continuance of the interim order and for a consequential direction to hold the general body meeting. Under the circumstances stated above, we do not propose to interfere with the said discretionary order. In fact, in order to safeguard the interest of the appellants, the learned Judge has chosen to request the retired Judge of this Court viz., Hon'ble Mr. Justice A. K.Rajan to supervise the convening of the general body meeting.
15. A further argument is advanced to the effect that even if the meeting held on 19.2.2005 by the appellant and consequential appointment of One T.K.Bhaskar, V.R.Bobba and S.L.Harsh as office bearers is held to be valid or not, the appellant is in no way affected and as such, there is no necessity for the continuance of the order of injunction granted as against him in C.S.No.211 of 2005. The said question need not be gone into at this stage in the light of the findings rendered above.
16. It is settled law that the power of the appellate Court is limited in interfering with the discretionary orders passed in pending suits. In this connection, it is useful to refer to the decision of the Apex Court in WANDER LTD AND ANOTHER vs. ANTOX INDIA P. LTD (1990 ( Supp) SCC
727) wherein it is observed as follows:-
"The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the ' balance of convenience' lies."
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case."
17. In the light of the above principles, when the matter is examined, it is not disputed that the appellant has taken a stand before the learned Judge that a general body meeting was convened simultaneously on 19.2.2005 by him and new office bearers were elected and he has handed over the records to the newly elected office bearers on 21.2.2005 and as such, he is not functioning as Honorary Secretary. Even otherwise, it is not disputed that the order of injunction was in force with effect from 31.1.2005. Under the said circumstances, considering the fact that the term is coming to an end on 30.9.2005, the learned Judge has rightly held that the said interim order should be made absolute by giving further direction to convene the general body meeting. Though we are upholding the order of the learned Judge, in order to protect the interest of both the parties, the appeals are disposed of in the following terms:-
a) The second defendant in C.S.No.52 of 2005 viz., the President of the association shall convene the general body meeting by giving 21 days notice for the conduct of the election of office bearers.
b) The President shall chair the meeting in his capacity as President of the association without seeking any assistance of Mr.D.V.Sundar and Mr.N.K.Mishra.
c) The President is bound by any directions that may be given by the Hon'ble Mr. Justice A.K.Rajan, who shall have power to supervise the convening of a general body meeting.
d) It is open to the Hon'ble Mr. Justice A.K.Rajan to give appropriate directions, if the circumstances so warrant, about the convening of the general body meeting, and conduct of election of office bearers.
e) It is open to the appellant and others to contest in the ensuing elections and if they are elected in the general body meeting, the interim orders granted by the learned Judge as against the appellants and other contesting defendants will not be operative and they would be free to discharge their duties of the post to which they are eventually elected.
18. The appeals are disposed of in the above terms. No costs. Consequently, connected CMPs are closed.
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