Bangalore District Court
Sri Vasudeva Rao vs ) The Basavanagudi Union on 23 February, 2022
KABC010187902017
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-26)
Dated this the 23rd day of February, 2022
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5223/2017
Plaintiff: Sri Vasudeva Rao
s/o Late D. Gopal Rao
aged about 62 years
Membership No.V-19
r/at No.19, 4th Main Road
Hanumanthanagar
Bengaluru-560 019.
(By Sri H.R. Manjunatha, Adv.)
v/s
Defendants: 1) The Basavanagudi Union
and Service Club, No.60
Sri Krishna Rajendra Road
Basavanagudi, Bengaluru-04
represented by its Secretary
Capt.M.R. Subramanyam.
2) The President
The Basavanagudi Union
and Service Club, No.60
Sri Krishna Rajendra Road
Basavanagudi, Bengaluru-04
(By Sri B.S. Raghuprasad, Adv.)
Date of institution of the suit 31.07.2017
2 O.S.No.5223/2017
Nature of the suit For declaration and
permanent injunction
Date of the commencement 23.08.2018
of recording of evidence
Date on which the judgment 23.02.2022
Pronounced
Total duration Years Months Days
04 06 23
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration that the two notices issued by the defendants are null and void and for consequential relief of permanent injunction restraining the defendants from obstructing the plaintiff to use the facilities of the defendant No.1-Club as its member.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the defendant No.1 is said to be a registered Club functioning to provide to its members social recreation like indoor games consisting of shuttle, billiards and snooker, cards playing, health Club, table tennis, carrom and all outdoor games and sports, picnics, social and literary activities, library, bar, canteen and 3 O.S.No.5223/2017 entertainment and it is said to be represented by the defendant No.2 President. The plaintiff claims to be the member of the defendant No.1 Club holding membership for more than 30 years and has been its fruitful member.
He has further stated that he has been using the facilities of the Club as a senior member by paying regular charges and fee prescribed by the Club. It is further stated that in view of his commitment and other works he was not a frequent visitor to the Club and has not been frequently utilizing all the facilities for the past one or two years. He has further stated that as he was made aware that there were certain non-usage charges and other amounts arising out of the use of the facility he made an application on 20.11.2015 requesting the President of the defendant No.1 to waive off the pending payments towards non-usage charges on the ground of non-usage of the facilities and thereafter on 14.01.2016 he requested for considering him as a senior citizen member. However it is alleged that his requests were not considered and even though he requested for waiving off the pending non-usage amounts he never refused to make payments. He has further stated that he received two separate notices from the defendant 4 O.S.No.5223/2017 No.1- Club both dated 11.08.2016 one of which mentioned about refusal of his request for waiving off the pending payments and the other notice mentioned about a final notice dated 09.07.2016 sent to him which was stated to have been returned unclaimed and it was also mentioned in the said notice that as per the bye-laws of the defendant No.1-Club, the plaintiff's membership has been terminated and he was directed to refrain from entering the Club. The plaintiff has further alleged that the said notice is not in compliance with the bye-laws of the defendant No.1-Club particularly bye-law No.5(iii) which speaks about sending of notice by three different modes i.e., through RPAD, courier and SMS or e-mail with a clear cut of 15 days gap and the other two modes apart from the registered post, have not been complied with and therefore the said notice is bad in law and opposed to principles of natural justice.
The plaintiff has further urged that the alleged notice sent through registered post has not been served upon him and except the same he has received all other SMS messages, but as there was no refusal by him to make payment, termination of his membership and restraining him from entering the Club is a high handed act by the defendants. It 5 O.S.No.5223/2017 is further alleged that even though there was failure to communicate notice to him, it was indiscriminately published in the notice board of the Club thereby defaming his reputation. The plaintiff has further alleged that several representations given by him on 06.10.2016, 22.11.2016 and 09.12.2016 were not considered by the Club and finally the defendant said to have issued reply to his notice dated 09.12.2016 stating that the termination of membership cannot be revoked and therefore the plaintiff issued a legal notice dated 14.03.2017 calling upon the defendant to immediately withdraw all the notices terminating his membership and restraining him from entering into the Club premises within 7 days from the date of service of the said notice and also to display on the notice board so as to bring the same to the notice of all the members of the Club, but despite service of the said notice the defendant did not take any action nor complied with his demand and therefore having left with no other alternative, the plaintiff has to come up with the present suit seeking declaration that the two notices dated 11.08.2016 and 23.01.2017 issued by the defendant are null and void and for permanent injunction restraining it from obstructing him to 6 O.S.No.5223/2017 use the facilities of the defendant No.1-Club as its member and hence the suit.
3. In pursuance of service of suit summons, the defendant Nos.1 & 2 entered their appearance through their counsel and filed their written statement denying the allegations made by the plaintiff. The fact that the defendant No.1 is a registered Club is not disputed by the defendants. It is contended that as per the Government Rules the members of all private Clubs which are not open to public, come under the ambit of luxury tax and therefore all the members have to mandatorily pay luxury tax and though the said legislation of the Government was challenged by various persons upto Hon'ble Apex Court, their applications were rejected. It is further contended that the Club runs on the membership fees payable by each members as it has to be maintained on a day-to-day basis and to provide service activities to its members as per bye- laws. The defendants have further stated that in the year 2011 in the annual general body meeting all the members unanimously decided that since many of the members were not utilizing the Club facilities and that there was a shortfall to maintain the Club it was resolved that if any members were not to use the service of the Club, a 7 O.S.No.5223/2017 minimum non-usage charge of Rs.165.41 Ps. would be imposed on such members which they are liable to pay for the maintenance of the Club and the said resolution and amendment to the bye-laws have been intimated as per the provisions of the Act. It is further contended that the plaintiff has not produced any materials to show his membership of the defendant No.1- Club for the past 30 years. It is denied by the defendants that the plaintiff had requested the President of the defendant No.1 Club to waive off the non-usage charges on the non-usage facility, etc., but that the defendants did not consider the same, etc., as alleged. It is contended by the defendants that though the plaintiff himself has stated that he has been the regular user of the Club facility and paying the fees but the said averments run contrary to his further averments made in para-3 that due to his personal commitments he was not frequently using the facilities. It is further contended that during the year 2011 in the general body meeting the members proposed that since the maintenance of the Club require funds, the it can not depend only on the usage amount of the members, it was resolved to impose Rs.250/- for non-using of the facility on the members and the same was approved in the said meeting which is applicable to all 8 O.S.No.5223/2017 the members. It is further contended that the said resolution was also sent for approval to the Registrar of the Societies and after approval it has been incorporated in the bye-laws of the Club. The defendants have further contended that the plaintiff being a non-regular visitor of the Club, due to non-usage, he became liable to pay the aforesaid monthly amount and the same being compounded ever month after non-payment of certain arrears a notice was issued to him. It is further contended that the allegation of the plaintiff that he has not received the notice as per the bye-laws also runs contrary to the plaint averments as few notices sent to him have been returned back as refused and after issuance of notice also he approached the Executive Committee requesting for waiver of the non-usage charges and one letter produced by him itself reflects that his request was deliberated in the meeting and the same was raised in the general body meeting which was not considered and thus even the Executive Committee has no right to grant the waiver off the said amount which will be contrary to the bye-laws. It is further contended that the notice issued through RPAD was not claimed by the plaintiff. It is stated that the notice was issued in order to bring it to the notice of the member that 9 O.S.No.5223/2017 he/she shall make payment of arrears failing which as per the laws his/her membership would be terminated and the plaintiff being fully aware of the notice sent to him and the same was also put in the notice board, was duty bound to clear the dues of the Club, but instead of making payment of arrears he went on issuing letters seeking waiver which was not considered and the same was also communicated to him and endorsed on his letter dated 27.11.2015. It is further contended that as the plaintiff had received notices and had requested for remission which reflected that he was aware of the threat of his termination of membership and therefore now he cannot be permitted to allege that the notice ought to have been issued as per bye-laws etc. It is further contended that the claim of the plaintiff that even after termination of his membership still he is receiving SMS and claiming that he is still the member, is also denied by the defendants. It is contended that the SMS messages would be sent only to the members and not to the outsiders and even if such messages are sent it would have been received by him inadvertently and the same would not entitle him to seek the relief. It is further contended that as per Section 5(iii) of the Bye-laws notices would be given through any of the four modes and it is not 10 O.S.No.5223/2017 mandatory that the notice should be issued in all the four modes and the notice being issued is to inform the member about his liability, such member is liable to clear the dues. It is further contended that the notice regarding termination of membership was also sent to the plaintiff by registered post which has been received by him. The defendants have further contended that the Club is formed for its members and guided by the bye-laws approved in the annual general body meeting and the general body is the supreme body of the association of the persons regulating the activities and administration of the Club and in view of the bye-laws the plaintiff being guilty of violation of bye-laws, action has been initiated as per law through notice and therefore the plaintiff having not paid the arrears, he is not entitled to the suit reliefs. It is further contended that since the plaintiff did not clear the dues his name was removed from the Club rules as per bye-laws and the membership is terminated and legally he has been restrained from entering the Club premises which is not illegal and for these reasons the defendants have sought for dismissal of the suit.
4. On the rival contentions of the parties the court has framed following issues:-
11 O.S.No.5223/2017
ISSUES
1) Does plaintiff proves that the termination of plaintiff's membership by defendant-Club is illegal, null and void?
2) Does plaintiff proves that two notices dated 11.08.2006 issued by the defendants and final communication dated 23.01.2017 refusing to revoke termination of plaintiff's membership in defendant-Club is null and void?
3) Does plaintiff proves that the defendants are liable to be permanently restrained from obstructing the plaintiff to use the facilities of the defendant-
Club as its member?
4) Does plaintiff is entitled for the reliefs [ sought for?
5) What order or decree?
5. To substantiate his claim the plaintiff has deposed before the court as P.W.1 and he has produced 8 documents marked from Ex.P.1 to P.8. Per contra the Secretary of the defendant No.1 Club has been examined as D.W.1 and he has also produced 17 documents marked from Ex.D.1 to D.17.
6. Heard arguments.
12 O.S.No.5223/2017
7. On hearing and on perusal of the materials and the evidence on record, my findings on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5: As per final order, for the following:
-: REASONS :-
8. Issue No.1 and 2:- Since both these issues are interconnected they are tried together to avoid repetition of facts. It is the specific case made out by the plaintiff that he is the member of the defendant No.1- Club since past 30 years and has been utilizing the facilities of the said Club which has provided to its members many social recreation facilities like indoor and outdoor games including facilities of library, bar, canteen and entertainment etc. He also claims that he has been regularly paying the charges payable to the said Club as its member. However it is his case that due to his personal commitment and other work he could not frequently visited the Club or frequently utilize all the facilities offered by the 13 O.S.No.5223/2017 defendants Club since past one or two years and ultimately he was made aware of the fact that there were certain non-usage charges which are payable to the Club and other amounts arising out of the use of the recreation and other facilities of the Club and therefore he requested the President of the defendant No.1-Club i.e., defendant No.2 on 20.11.2015 by an application seeking to waive off the pending payments towards non-usage charges on the ground of non-usage of the facilities.
9. It is the further claim of the plaintiff that once again on 14.01.2016 he made request to the defendants to consider him as a senior citizen member and both his requests were not properly responded to by the defendants-Club and though he was ready to make the payment, it has not been considered by the defendants and ultimately he was issued with two separate notices from the defendants-Club on 11.08.2016 rejecting his request for waiver off pending payments and in other notice there was a mention made about a final notice dated 09.07.2016 being sent to him stated to have been returned as unclaimed and that as per the bye-laws of the defendant Club his membership has been terminated and 14 O.S.No.5223/2017 he was restrained from entering the Club premises. Thus it is the grievance of the plaintiff that these two notices issued by the defendant No.1 Club are contrary to the terms of bye-laws of the Club and also against the principles of natural justice.
10. The claim of the plaintiff has been categorically refuted by the defendants Club according to whom it had acted in accordance with law and purely as per the terms of the bye-laws of the Club. It is the justification pleaded by the defendants that as per the legislation of the Government of India and the State Government, the members of the Club are provided with the said facilities which come under the purview of luxury tax payable to the Govt. and therefore all the members have to mandatorily pay luxury tax and there is no exemption in this regard.
11. It is further contended by the defendants that the decision was unanimously taken by all the members in an annual general body meeting held in the year 2011 wherein it was resolved that in order to maintain the Club apart from recovering the regular charges, the members are also liable to pay the charges of non-usage of the facilities amounting to Rs.165.41 Ps. and the said 15 O.S.No.5223/2017 resolution was already incorporated in the bye-laws after getting approval from the Registrar of the Co-operative Societies and therefore since it was an unanimous decision taken as per the law, the plaintiff is also bound by it being the member of the Club and therefore he cannot seek any exemption in this regard, but despite knowing the said fact he remained in arrears of the charges for non-usage of the facilities for long period and therefore notices were issued to him which were also not responded to by him and ultimately the defendant No.1 Club has to terminate his membership as per law and also as per the terms of bye- laws of the Club. In view of this justification pleaded by the defendants, the burden is on the plaintiff to prove as to how the said notices are bad in law and as to how the termination of his membership is in violation of the bye- laws of the Club.
12. To substantiate his case the plaintiff has deposed before the Court as P.W.1 and produced 8 documents of which Ex.P.1 is said to be the representation given by him to the defendant No.1 Club seeking waiver of pending payment for non-usage of facility, Ex.P.2 is the reply issued by the defendant No.1 Club to the plaintiff 16 O.S.No.5223/2017 wherein it is stated that after discussing his request with the Executive Committee it was decided that as per the bye-laws there is no such provision for waiving of the pending payments and thereby his request was refused. Again on the very same day Ex.P.3- letter has been issued by the defendant stating that their final notice dated 09.07.2016 sent to P.W.1 has been returned as not claimed and therefore as per Clause-5(iii) of the Bye-laws his membership has been terminated for non-payment of dues and further his entry in the Club premises was also restricted.
13. As regards Ex.P.4, it is said to be a reminder issued by P.W.1 to the President of the defendant No.1 Club wherein he has reiterated that the notice of termination of his membership is not in accordance with the conditions of bye-laws and it is also stated that he will pay the non-usage dues and had sought for reply from the defendant. As regards Ex.P.5, it is another letter issued by P.W.1 on 22.11.2016 to the defendant stating that his suspension is not according to law and to allow him to pay the dues and to restore his membership. He has also produced Ex.P.6 which is a notice of extra-ordinary general 17 O.S.No.5223/2017 body meeting of the defendant Club. This also includes the bey-laws of the Club.
14. As regards Ex.P7, it is the legal notice issued by P.W.1 to the defendant Club calling upon it to withdraw all its notices issued to him terminating his membership and restraining him from entering the Club premises. Ex.P.8 is the reply issued by the defendant Club to the letter dated 09.12.2016 issued by P.W.1 stating that his termination cannot be revoked as per the bye-laws. As against this oral and documentary evidence placed before the Court by P.W.1, as stated supra, the Secretary of the defendant Club has also deposed before the Court as D.W.1 and he has also relied on as many as 15 documents in support of their defence.
15. As regards Ex.D.1, it is the notice which was issued to P.W.1 through registered post which was returned as not claimed by him. Ex.D.2 is the ledger entries maintained by the defendant Club with respect to the minimum usage charges payable to it from the members. As regards Ex.D.3, it is the notice dated 27.07.2016 which was said to have been put in the notice board of the Club showing the dues payable by P.W.1 18 O.S.No.5223/2017 towards the charges of non-usage of facilities. Ex.D.1 to 3 were the documents admitted by P.W.1 and therefore they were got marked during the course of his cross- examination. As regards Ex.D.4, it is the authorization letter issued to D.W.1 by the defendant Club authorizing him to represent the defendants.
16. As regards Ex.D.5, it is the Hand Book of Rules and Bye-laws of the defendant Club. Again Ex.D.6 is the statement of arrears of dues payable by P.W.1. Ex.D.7 is the same letter dated 20.11.2015 by P.W.1 which is already marked in his evidence as Ex.P.1. As regards Ex.D.8, it is also the same letter which is marked at Ex.P.2. As regards Ex.D.9, it is the postal AD slip. Ex.D.10 is the notice issued to P.W.1 and other members calling upon them to clear the dues payable by them. As regards Ex.D.11, it is the letter dated 19.08.2016 written by P.W.1 to the Secretary of the Club wherein he had pleaded his willingness to make payment. As regards Ex.D.12, it is the same document which is marked at Ex.P.4 in the evidence of P.W.1. Ex.D.13 is the letter issued by P.W.1 to the President of the defendant Club requesting to revoke his suspension of membership. As regards Ex.D.14, it is also a 19 O.S.No.5223/2017 letter dated 29.04.2017 written by P.W.1 addressed to the President of the defendant Club. Ex.D.15 is also one such letter dated 09.12.2016. Ex.P.15 is the same copy of Ex.D.13.
17. In the backdrop of this oral and documentary evidence placed before the Court by both the parties now it is to be seen whether the disputed notices issued by the defendant Club to P.W.1 are in accordance with law and in accordance with bye-laws of the defendant Club. The undisputed facts involved in the case are with regard to the earlier membership of P.W.1 with the defendant Club and his earlier user of the facilities provided by the Club. It is also an admitted fact that for some period the plaintiff had not regularly used the facilities of the Club which is admitted by him in his pleadings itself. No doubt he had not regularly used the said facilities of the defendant Club for about 2-3 years even as per his own admissions, but despite such non-user of the facilities whether the defendants are justified in terminating his membership for non-payment of dues and whether such termination is in consonance with and in accordance with their bye-laws, is only crucial disputed issue involved in the case. 20 O.S.No.5223/2017
18. Both the counsels have submitted their respective written arguments in this case reiterating their respective stands taken in their pleadings. At the first instance the learned counsel for plaintiff in his written argument has once again invited my attention to the terms of bye-laws of the defendant Club and it has been also reiterated as to how the defendant Club has not followed these bye-laws while terminating his membership. It is the specific grievance of P.W.1 that Clause-5(iii) of the Bye- laws specifically mandates issuance of notice by 3 different modes i.e., RPAD, courier, SMS or e-mail. This fact is also not denied by the defendant Club.
19. It is the allegation of P.W.1 that the defendant Club except issuing notice to him through registered post, has not complied with the other requirements i.e., sending of notice through courier and also through SMS or e-mail and therefore the very issuance of notice without complying with these material requirements of bye-laws is bad in law and consequently the termination of his membership through such mode is also illegal. However, it is the defence of the defendants that the Bye-laws require the issuance of notice through any one of the four modes 21 O.S.No.5223/2017 contemplated therein. How far this contention of the defendants could be accepted, is to be seen.
20. The learned defence counsel for the first time during the course of his arguments raised the issue regarding the very jurisdiction to entertain and try this suit. He has vehemently argued that the dispute involved in the case is one between the plaintiff Club and its member which touches the very management and administration of the Club which is admittedly registered under the provisions of Societies Registration Act and therefore, the competent authority to resolve this dispute is the Registrar and therefore, this court lacks jurisdiction to decide this case. In support of his arguments he has also sought rely on a couple of decisions of the Hon'able High Court reported in T.P. Davar v/s Lodge Victoria No.363, S.C. Belgaum in Supreme Court Reports 1964 Page-2 wherein it is held that the source of power to expel members is not governed by the provisions of the Act since the members are governed by contracts and rules must be strictly observed and therefore the jurisdiction of the civil court is barred to entertain any such disputes between the members.
22 O.S.No.5223/2017
21. Thus what has been observed in the above cited decision is that the source of the power of Associations, Clubs and Lodges to expel their members is the contract on the basis of which they become members and the members are bound by the rules of the Lodge. It is further held that the jurisdiction of civil courts in such cases is limited and it cannot be held that the civil courts sit as a court of appeal from the decision of such a body.
22. The same principles laid down in the above cited decision where reiterated by the Hon'ble High Court in a subsequent decision reported in Dr.K.T. Shivaiah v/s G.P. Puttaswamy Gowda in ILR 1993 Kar 1563 which is also cited by the learned defence counsel. In this decision, the petitioner therein had questioned the termination of his service as Secretary of the Association and in that context of the matter the Hon'ble High Court held that it is the Central Committee which is competent to appoint the Secretary of the Association and can also exercise the powers of the Central Committee and the rules and regulations framed by a Society like the one involved in that case are not statutory provisions as such but they are in the nature of a contract between the 23 O.S.No.5223/2017 members and members and members and the society and therefore these rules are not enforceable in a court of law.
23. With due regards to the principles laid down in the above cited decisions before considering the application or otherwise of such principles to the present case it is to be seen whether the case on hand warrants the application of those principles. No doubt in the instant case the defendant herein is also not a Society but it is a Club and though it is registered under the Societies Registration Act, but it is to be noted that a Club merely because it is registered under the said Act it does not assume the character of a Society so as to come under the strict purview of the Act. In other words, a Club is not a Society and even in the decisions cited above, it is well settled that the bye-laws of such Societies or associations registered under the Societies Registration Act are supreme as rightly pointed out by the plaintiff's counsel and therefore the court in the case on hand has to look into whether the defendants Club has acted strictly in accordance with the said bye-laws or whether it has violated the principles of natural justice. 24 O.S.No.5223/2017
24. It is further significant to note that as discussed supra, the defendant herein is registered not under the Companies Act or Co-operative Societies Act, but it is registered under the Societies Registration Act. Section 25 of the Act gives power to the Registrar to deal with certain aspects concerning the said associations or societies which are registered under the said Act. Section 25 of the Act runs thus:
Section 25 Enquiry by the Registrar, etc (1) The Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the constitution, working and financial condition of a registered society.
(2) The Registrar or the person authorised by him under sub-section (1) shall have the following powers, namely,-
(a) he shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other 25 O.S.No.5223/2017 properties belonging to or in the custody of the society and may summon any person in possession or responsible for the custody of any such books, accounts, documents securities, cash or other properties to produce the same at any place at the headquarters of the society or any branch thereof;
(b) he may summon any person who, he has reason to believe, has knowledge of any of the affairs of the society to appear before him at any place at the headquarters of the society or any branch thereof and may examine such person on oath;
(c) (i) he may, notwithstanding anything contained in this Act or in any rule or regulation prescribing the period of notice for a general meeting of the society, require the governing body of the society to call a general meeting at such time and place at the headquarters of the society or any branch thereof and to determine such matters as may be directed by him. If the governing body of the society refuses or fails to call a meeting, he shall have power to call it himself;
(ii) any meeting called under sub-clause (i) shall have all the powers of a general meeting called under the rules or regulations of the society and its proceedings shall be regulated by such rules 26 O.S.No.5223/2017 or regulations;
(iii) when an enquiry is made under this section, the Registrar shall communicate the result of the enquiry to the society concerned.
25. If we read the above provision contained U/S 25 of the Act, it could be said that the Registrar can though discharge certain duties or has got certain powers to deal with certain issues concerning the administration or management of the said association, but those acts are in the nature of having access to the books and accounts in the custody of the Society, to summon any person having custody of such records, summon any person having knowledge of the affairs of the Society to appear before him and examine such person on oath, may require the Governing Body of the Society to call a general meeting and determine such matters as directed by him. Thus nowhere the provision deals with the resolution of any disputes by the Registrar arising between the members or the Club or Association, etc. On the contrary the acts which are enumerated in Section 25 of the Act are purely touching the administration and management of the Society by the governing body. Therefore as rightly 27 O.S.No.5223/2017 pointed out by the plaintiff's counsel, it cannot be said that there is any such express bar contained under the Act to approach the civil court for resolution of the dispute of the nature which is involved in the present case.
26. Moreover as stated supra a Club cannot be termed as a Society so as to bring it within the ambit of the Act. Hence, U/S 9 of CPC it cannot be said that this court lacks jurisdiction to entertain the dispute of the present nature. Therefore the exhaustive argument canvassed by the learned defence counsel for the first time in the arguments that this court lacks jurisdiction to adjudicate the present suit, cannot be accepted. Consequently the ratio laid down in the above cited decisions relied on by the counsel cannot be applied to the facts on hand.
27. As discussed supra, if we read Section 25 of the Act, it can safely be held that there is no such express bar for a member of a society to approach the civil court for redressal of his grievance and under such circumstances the jurisdiction of the civil court cannot be held to be ousted. In this regard it would be relevant to refer the decision cited by the plaintiff's counsel reported in Amiya 28 O.S.No.5223/2017 Vilas Swami & others v/s Shankha Brita Das & others in 2007(6) AIR Kar R 562 wherein the Hon'ble High Court has clearly dealt with this aspect as under:
"Karnataka Societies Registration Act (17 of 1960), S.25- Civil P.C. (5 of 1908), S.9-
Ouster of jurisdiction of civil Court- Constitution, of a registered Society- No adequate, effective and sufficient remedy provided under Karnataka Act- Jurisdiction of civil Court cannot be impliedly ousted.
The jurisdiction of the Civil Court is not expressly barred under the provisions of Karnataka Act. It is only by implication, the jurisdiction of the civil Court is sought to be ousted. Implication is an indirect method of ousting the jurisdiction of the Civil Court. In such a case, the provisions which oust the jurisdiction of the civil Court, must provide for a mechanism to adjudicate such dispute. The cumulative effect of the statutory provision should provide for adequate remedy on par with the jurisdiction of the Civil Court. In such circumstances, it can be inferred that the jurisdiction of the civil Court is impliedly excluded.
Reading of provisions of Section 25 shows that, the Registrar can hold an enquiry and 29 O.S.No.5223/2017 u/s 25 sub-section (2) clause (c) sub-clause
(iii) he can communicate the result of the enquiry to the society concerned. Section is silent as to what happens to the report, or whether the Registrar can take further decision on the basis of enquiry. If a society is to be communicated with the result of the enquiry, whether such a society is bound by the report or whether the society in pursuance of the said report could take action, all that is provided is only enquiry and submitting of report. In this case, reading of S.25 does not provide for raising any such dispute nor provide for adjudication, hence if cannot be inferred or understand to mean that the dispute touching the constitution or a dispute between the members and the members and members and the society could be adjudicated. What is not provided in Law cannot be inferred".
28. In view of the principles laid down in the above decision, now it cannot be said that the plaintiff herein has to necessarily approach the Registrar for redressal of his grievance involved in this case, because as stated supra the Act does not specifically provide any effective or sufficient remedy for redressal of all kinds of disputes between the society and its members. In the present case 30 O.S.No.5223/2017 as stated above, the defendant herein is not even a Society in the strict sense, but it is a recreational Club formed by its members. Therefore having regard to the nature of the dispute involved in this case it could safely be held that this Court certainly assumes jurisdiction to decide the case on hand.
29. Now the next material aspect which requires consideration is as to whether the plaintiff herein could prove that defendant Club before terminating his membership has not acted as per the rules and regulations and the bye-laws of the Club and as to how the act of the defendant has resulted in serious miscarriage of justice and violation of the principles of natural justice. As stated above, it has been the specific grievance of P.W.1 that the defendant has not terminated his membership as per bye- law No.5(iii) which specifically mandates that the notice has to be issued to the members in three different modes i.e., by RPAD, by Courier or through SMS or e-mail. Thus, according to his grievance this requirement is not satisfied by the defendant.
30. According to PW1, though the defendant has sent him many messages, but the notice sent through 31 O.S.No.5223/2017 registered post has not been served upon him in accordance with law. The defendant on the other hand, has contended that though these three modes of service of notice are provided under the bye-laws, but the said rule has to be construed not in the sense that all the three modes are to be mandatorily exhausted, but the notice could be sent through any one of such modes. It would be relevant to refer the evidence of the parties in this regard.
31. D.W.1 in his cross-examination has clearly admitted that as per the above said bye-laws the notice was required to be sent through all the modes provided under the bye-laws with a clear gap of 15 days and in case the plaintiff fails to comply with the said notice issued under all the modes then only his membership needs to be kept under suspension. This material piece of his admission is found in his cross-examination dated 01.12.2021 on page-13 in para-2 which reads thus:-
"It is true to suggest that notice to the plaintiff was required to be sent by RPAD, courier, SMS or through E-mail with a clear gap of 15 days as per the bye-laws. It is true to suggest that in case the plaintiff fails to comply with the said notice issued 32 O.S.No.5223/2017 in all the above modes, then his membership will have to be kept under suspension for 3 months".
32. Thus the above statement of D.W.1 clearly falsifies the contention of the defendant that the notice could be issued by any one of the three modes provided under the bye-laws. Even in his further cross-examination he has not specifically stated that they have issued notice dated 09.07.2016 through SMS or E-mail to P.W.1 though he has pleaded ignorance in this regard. It is further relevant to refer the material documents in this regard.
33. The defendant has produced a letter dated 11.08.2016 addressed to P.W.1 stating that the final notice dated 09.07.2016 sent by the defendant was returned as not claimed and therefore his membership has been terminated by the defendant. This final notice dated 09.07.2016 is under serious dispute by P.W.1 which is produced at Ex.D.1. Thus according to the defendant this Ex.D.1 is the final notice which has entitled it to terminate the membership of P.W.1 since he alleged to have not claimed this notice. It is relevant to note that in Ex.D.18 we find the sentence as "by registered post has been 33 O.S.No.5223/2017 returned as not claimed, returned to sender" has been in the hand writing whereas the rest of the contents are typed. We even do not find the initials put to this over writing found in Ex.D.8.
34. No doubt Ex.D.1 shows that this notice dated 09.07.2016 was returned as not claimed by P.W.1, but as rightly pointed out by the learned counsel for plaintiff, the defendant has not complied with the other requirements of the bye-laws i.e., by issuing notice to P.W.1 through the other modes as enumerated in Clause-5(iii) of the Bye- laws as discussed supra and this fact is also not specifically denied by D.W.1 in his cross-examination. Under such circumstances prima facie it is proved that they have not acted in accordance with their own bye-laws. It is further significant to note that even after issuance of Ex.D.1 notice there was correspondence between the plaintiff and the defendant.
35. In his cross-examination dated 10.02.2021 D.W.1 has clearly pleaded ignorance to say that whether the defendant has issued notice dated 09.07.2016 through SMS or e-mail to the plaintiff. It is further pertinent to note that though as per the subsequent endorsement found on 34 O.S.No.5223/2017 Ex.D.1 it is stated that the notice was not claimed by P.W.1, but initially there was another endorsement dated 12.07.2017 stating that notice could not be served as it was returned as 'door locked' and this fact is also admitted by D.W.1 in his cross-examination dated 01.12.2021. It is also admitted by him that as on the date of issuance of this notice dated 09.07.2016, the old bye-laws were in operation. If that is the admitted fact certainly the defendant ought to have acted in accordance with the said bye-laws by complying with the issuance of notice under all the three modes which are mentioned in Clause-5(iii) of the bye-laws and this material requirement has not been satisfied by the defendant.
36. It is further significant to note that nowhere in the entire cross-examination of P.W.1 it has been suggested to him that he was duly intimated with regard to termination of his membership by issuance of notice to him by all the three modes as per the bye-laws. However the learned counsel for defendant has urged that there was no occasion for the defendants to issue such notice to P.W.1 through e-mail since he had not furnished e-mail address to the defendant. This explanation offered on 35 O.S.No.5223/2017 behalf of the defendant cannot be sustained for the reason that as per their own bye-laws, the notice was required to be issued not only through RPAD or SMS but also through courier with a clear gap of 15 days and it is only after compliance of this material requirement, if the plaintiff thereafter fails to comply with the said notice his membership was to be terminated as per heir bye-laws.
37. Therefore as rightly urged by P.W.1 the entire approach of the defendant No.1- Club in terminating the membership of P.W.1 is now proved to be contrary to their own bye-laws. However it has been suggested to P.W.1 in his cross-examination dated 27.08.2019 in para-6 that as per Ex.D.3 notice which is said to have been put on the notice board of the Club on 27.07.2016 shows that he was due to pay an amount of Rs.10,579/- to the Club. It is pertinent to note that though as per their records P.W.1 was shown to be due to pay the said sum towards the arrears of charges payable to the Club, but it is significant to note that even as per the own admission of D.W.1 since 2015 till the date they have not allowed the plaintiff inside their Club premises. This Ex.D.3 is dated 27.07.2016. When the defendants had already restrained P.W.1 from 36 O.S.No.5223/2017 entering their Club premises in the year 2015 itself then it cannot be said that P.W.1 must have any access to the said notice board of the Club as on 27.07.2016 so as to come to know about the amount due from him payable to the Club. Therefore even though this document shows his liability for payment of the said sum, it cannot be said that he was made aware of the issuance of notice by the defendants.
38. Even otherwise it is relevant to note that P.W.1 has been pleading his readiness to clear all dues payable to the Club, but the conduct of the defendant No.1- Club indicates that they have not given him any opportunity of clearing the entire dues. On the contrary they have ventured to terminate his membership contrary to their own bye-laws which has certainly resulted in miscarriage of justice as well as violation of principles of natural justice. Therefore both these issues will have to be answered in favour of the plaintiff in the affirmative.
39. Issue No.3:- P.W.1 has also alleged that the defendants by illegally terminating his membership, have been restraining him from entering the Club premises and from using the facilities of the Club as its member. The fact 37 O.S.No.5223/2017 that P.W1 has been denied the access to the Club and using the facilities of the Club has been admitted by the defendant No.1 although he has pleaded justification stating that since his membership was already terminated P.W.1 has no right to use the Club facilities. In view of the findings rendered on issue Nos.1 & 2 it is now proved that the alleged termination of membership of P.W.1 by the defendant No.1 Club is contrary to the conditions of bye- laws of their own Club. As discussed supra, the defendant No.1 Club by not following the due procedure in terminating his membership as per bye-laws, have illegally obstructed him not only from entering the Club premises but also from using the Club facilities as its member.
40. It is relevant to note that as per the own admission of D.W.1, the plaintiff has been the member of their Club since past 30 years. He has also admitted that till 2016 there was no difference between the plaintiff and defendant No.1 Club. It is also not denied by D.W.1 that P.W.1 had issued request letter to the Club as per Ex.P.1 requesting the defendant No.1 Club for waiving off the pending payments for non-usage of the Club facilities. D.W.1 has also admitted that they have not replied to the 38 O.S.No.5223/2017 said letter nor they have responded to many other subsequent request letters of the plaintiff. This conduct of the defendant No.1 Club clearly goes to show that pending consideration of the request letter of P.W.1, the defendant No.1 has attempted to take steps for terminating his membership without responding to his request letters. Under such circumstances it cannot be said that there was any deliberate or intentional omission on the part of PW.1 in clearing the dues towards the non-usage charges.
41. Moreover the defendant No.1 has also not denied the fact that till this date P.W.1 has been ready to clear the entire dues payable to the Club. Therefore all these facts and circumstances clearly establish that the approach of the defendant No.1 Club towards P.W.1 is arbitrary and contrary to their own rules and regulations and the bye-laws. Therefore they are certainly liable to permit P.W.1 from continuing the membership with the defendant No.1 Club by clearing the dues. Since it is now proved that the defendant No.1 Club has acted contrary to the bye-laws of the Club, they have no legal right to obstruct him from using the Club facilities since it is now proved that his membership has not been terminated as 39 O.S.No.5223/2017 per law. Therefore this issue also will have to be answered in favour of the plaintiff in the affirmative.
42. Issue No.4:- In the light of the findings given on all the preceding issues it is now proved that since the alleged termination of membership of P.W.1 by the defendant No.1 Club is contrary to law and the rules and bye-laws of the defendant No.1- Club, the defendant No.1 Club is under a legal responsibility to continue the membership of the plaintiff to their Club. However since P.W.1 has also admitted that he has remained in arrears of the charges of non-usage of Club facilities, he is also liable to clear the entire dues so as to get the continuation of his membership with the defendant No.1 Club. Hence this issue is also answered in his favour in the affirmative.
43. Issue No.5:- In the light of the findings given on the preceding issues and in the facts and circumstances of the case the parties to the suit are directed to bear their own costs of litigation. In the result the court hereby proceeds to pass the following:- 40 O.S.No.5223/2017
ORDER The suit filed by the plaintiff against the defendants for declaration and permanent injunction is hereby decreed as prayed for.
It is hereby declared that the disputed two notices dated 11.08.2016 and 23.01.2017 issued by the defendants are null and void. Consequently the termination of the plaintiff's membership of the defendants Club by the defendants is illegal.
The defendants-Club are hereby restrained by an order of permanent injunction not to obstruct the plaintiff from using the Club facilities as its member. The defendants are hereby directed to continue the membership of the plaintiff to their Club by recovering the arrears of charges payable by him towards the Club.41 O.S.No.5223/2017
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 23rd day of February, 2022) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 : Vasudeva Rao List of documents exhibited for plaintiff:
Ex.P1 : Representation letter Ex.P2 : Letters dtd.11.08.2016 & P3 Ex.P4 : Reminder letter dtd.06.10.2016 Ex.P5 : Representation letter Ex.P6 : Bylaws of defendant Club Ex.P7 : Copy of legal notice Ex.P8 : Letter dtd.23.01.2017
List of witnesses examined for defendants:
D.W.1 : Basavaraj List of documents exhibited for defendants:
Ex.D.1,2: Postal cover and ledger entries Ex.D.3 : Notice copy published on notice board 42 O.S.No.5223/2017 Ex.D.4 : Board resolution Ex.D.5 : Rules and bye-laws Ex.D.6 : Statement of arrears and dues Ex.D.7 : Notice Ex.D.8 : Letter dtd:11.08.2016 Ex.D.9 : Postal acknowledgement Ex.D.10 to 15 : Notices Ex.D.16 : Computerized ledger extract Ex.D.17 : Minutes of meeting X Addl. City Civil & Sessions Judge, Bangalore.