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Sangeet Bhatia vs Sarvodya Enclave Residents Welfare ... on 19 February, 2016

                         Sangeet Bhatia Vs  Sarvodya  Enclave Residents Welfare Association & Ors.


                      IN THE COURT OF  CIVIL JUDGE­02 (SOUTH)
                         SAKET COURTS COMPLEX, NEW DELHI

In the matter of :
CS No. 66/2016 


Sangeeta Bhatia                                                                                                 .....Plaintiff
 
                                                                     Versus
                                                                     
Sarvodaya Enclave Residents Welfare Association & Ors. 
                                                                                                               ..... Defendants

                                                           ORDER

(On plaintiff's application under Order XXXIX Rule 1 & 2 CPC)

1. This order of mine shall dispose off application under Order XXXIX Rule 1 & 2 CPC moved on behalf of plaintiff/applicant.

2. Brief facts of the present case are that plaintiff is a member of Sarvodaya Enclave Residents Welfare Associations in short herein called as SERWA. That the plaintiff has filled up her nomination form for the post of President which was rejected with an objection that nomination has not filed in person, though proposed by Sh. K. C. Bhatia and Sunil Dutt Sharma who was also the members of the SERWA. That plaintiff approached the defendant no.3 regarding the rejection who did not accept the nomination form of the plaintiff and deprived her right to contest the said election. That the defendant no.1 has not paid the membership subscription for last 3 years continuously and hence, does not qualify to represent the said SERWA. That the by­laws of the associations CS No. 66/2016 Page 1 of 7 Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

are being violated by the defendants by opening the membership for the persons who have not cleared their arrears and a right to vote is being given. Even the fake persons are being included as members without payment of the admission fees. That the representation made by the plaintiff have not been conceded. All the actions taken by the president are again in violation of the by­laws of the memorandum of association as the competent authority for all purposes is the secretary so the action taken by the president are void ab­initio and illegal. That list of the members made by the Treasurer/Welfare Association shows the name of 455 persons alongwith the name of 131 members who paid their dues for the year 2014­15, hence, 344 members are made in violation of the bye­laws. Out of 455 members only 134 members attended the GBM and even the proxy attendance was marked which is not permissible. The decisions taken their in the GBM are completely in violation of by­laws hence cannot be given effect. It is further stated that defendant no.3 has allowed the proxy voting in the forthcoming elections which is not permissible under the by­laws. Hence, the present suit is filed by the plaintiff.

3. By way of the present application, Ld. Counsel for the plaintiff has sought interim injunction against the defendants.

Ld. counsel for defendant no.3 strongly opposed the application and argued that all the rules and regulations of the memorandum of associations of SERWA has been complied with and are being duly followed for conducting the elections fairly and transparently. It is further argued that plaintiff who CS No. 66/2016 Page 2 of 7 Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

was part of GBM did not protested or objected to any decision taken and have filed the present suit as an after thought to scuttle the process of elections which is going to be held day after tomorrow. Ld. counsel further argued that it is more than 3 years passed that the election has not taken place following which the president issued the circular and subsequently conducted the GBM and notified the minutes of the same which was within the authority as the secretary was not taking any initiative in this respect. It is further argued that defendant no.3 is empowered to allow proxy voting subject to some regulations which is not prohibited in the by­laws of the association. Arguing further Ld. counsel submitted that plaintiff is not contesting the elections so no irreparable loss is going to be caused to the plaintiff. It is further argued that all the dues/arrears have been paid by the existing members and the new members have also paid the subscription fees alongwith the admission fees so the claim of the plaintiff that fake members are being including by changing the rules is completely false and baseless. It is further argued by Ld. counsel that as per the rules the nomination has to be filed by the candidate in person whereas the plaintiff did not file the same in person on date fixed i.e. on 9th and 10th of February 2016 as she was out of station and no ground required to be complied with in case of absence have been mentioned by the plaintiff so her nomination form was rejected. It is further argued that the election process have already been setting motion so it should not be stopped at this intermediate stage. It is further argued that the relief sought in present application is the same which is prayer in the main prayer clause so it cannot CS No. 66/2016 Page 3 of 7 Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

be granted merely on the prima facie case rather a much higher standard of consideration is to be seen which plaintiff has failed to put forth. In support of his arguments, Ld. counsel relied upon judgments passed by Hon'ble Supreme Court of India in cases titled Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vs. Mahrashtra [reported in (2001) 8 SCC 509] and Deoraj Vs. State of Mahrashtra [reported in (2004) 4 SCC 697].

Defendant no.1 also strongly opposed the application moved by plaintiff by submitting some additional arguments apart from the arguments address by Ld. counsel for defendant no.3. Defendant no.1 submitted that he is still posted as President of SERWA and have not resigned from the same which is evidence from the fact that plaintiff has himself mentioned the name of defendant no.1 as President in the memo of parties. It is further argued that all the allegations made by the plaintiff are baseless as all the decision are taken by General Body Meeting which is the supreme body. Hence, the application of the plaintiff deserves to be dismissed.

4. I have heard the arguments of both the sides and also gone through the record carefully.

5. The principles regarding grant of temporary injunction are well settled. In order to be entitled to temporary injunction, the applicant must show ­

(i) that prima­facie case lies in his favour;

(ii) that balance of convenience also lies in his favour and

(iii)that he shall suffer irreparable loss and injury if the said injunction is refused.

Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

6. Now coming to the case whether the plaintiff has established a prima facie case in his favour. Firstly, the claim of the plaintiff that defendant no.1 is not the president false flat in view of his own averments impleading the defendant no.1 as President of the SERWA. Secondly, there is nothing on record to show that defendant no.1 has resign from the association or ceases to be the President as on date. Now coming to the further contention raised by the plaintiff that the action taken by president by calling General Body Meeting and taking decision thereof are in violation of by­laws of the memorandum of association. Bare perusal of the MOA reveals that the president is empowered to convene a special meeting of general body special matters required for consideration. It is not disputed that secretary i.e. defendant no.2 has not taken any initiative to call any general body meeting for the last three years and more than three years have been passed since the elections were held and therefore issuance of the circular by the president for calling a general body meeting cannot be said to be in violation of the memorandum of association. It is further important to note here that plaintiff and the secretary attended the GBM and no protest or objections on the function of GBM have been registered by the plaintiff or the secretary. Prima facie plaintiff has failed to show that fake members or the non­ members participated in the annual GBM on 17.01.2016. I completely agree with the argument put forth by Ld. counsel for defendant no.3 that Returning Officer is empowered to laid down the procedure though with the parameters of the rules and regulations as enunciated in the MOA so allowing of proxy voting on the day of election subject to some strict rules CS No. 66/2016 Page 5 of 7 Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

compliance of which is required is not barred in the by­laws though not explicitly provided in the MOA. Hence, it cannot be considered as an illegality on the part of defendants. I further completely agree with the argument put forth by Ld. counsel for defendant no.3 that the nomination form has to be deposited by the candidate himself or herself and plaintiff could not authorized anyone on her behalf to fill and deposit the same. Ld. counsel for the plaintiff has contented that defendants have allowed the proxy voting but have not allowed the proxy to deposit the nomination form which is contradictory to the stand taken by the defendants themselves. I would like to note here that proxy voting an proxy filing of nomination form stand on completely different footing. It is important to note that plaintiff has not complied with the requirement of appointing proxy as well as per the regulations circulated by the defendants so she cannot take the plea of applying same yard stick in both cases.

It is further important to note here that the present application does not specifically reflect in the prayer clause as to what relief is being sought by the plaintiff as ad­ interim. Further, if it is assumed that the same relief which is the main prayer of the suit is being claimed in the present application then the same cannot be allowed as the same would amount to decretal of the suit. I would rely upon the same judgment as referred above by the defendant no.3 i.e. Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vs. Mahrashtra [reported in (2001) 8 SCC 509] where it has been established by Hon'ble Supreme Court of India that if the election process have been CS No. 66/2016 Page 6 of 7 Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

set in motion no stay should be granted even though there may be some discrepancy or illegality has taken place while preparing the electoral roll. I also rely upon the second judgment i.e. Deoraj Vs. State of Mahrashtra [reported in (2004) 4 SCC 697] whereby Hon'ble Supreme Court has held that in case the prayer sought in the application u/o XXXIX Rules 1 & 2 CPC is the same that has been sought in the main prayer clause, then the standard of proof should be much higher then just prima facie case. This court is of the opinion that neither the plaintiff has made out a prima facie case in his favour nor the balance of convenience lies in favour of the plaintiff. Even no irreparable loss shall be caused to the plaintiff as he is not contesting the election whereas the elections are going to be held on 21.02.2016 i.e. day after tomorrow.

7. Hence, in view of the facts and circumstances, application moved by the plaintiff deserves to be dismissed. Accordingly, same stands dismissed. However, anything said in the present order would not tantamount to expression of any opinion on the merits of the case. Application stands disposed off accordingly.

Announced in the open Court on 19.02.2016 (Vishal Pahuja) CJ­02 (South)/Saket Courts New Delhi/19.02.2016 CS No. 66/2016 Page 7 of 7