Madras High Court
Tamilnadu Table Tennis Association vs N.Arulselvi
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Reserved on : 30.07.2018
Pronounced on : .08.2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
Application No.5156 of 2018 in
C.S.359 of 2018
Tamilnadu Table Tennis Association,
Rep. By its Honorary Secretary,
Mr.A.V.Vidhyasagar,
Room No.82, Jawaharlal Nehru Stadium,
Periamet, Chennai 600 003. ... Applicant
Vs.
1. N.Arulselvi,
Flat No.5, 3rd Floor,
Indus Jubilee Manoor,
No.38, Tank Bunk Road,
Nungambakkam, Chennai 600 034.
2. Mr.T.K.Vijayarangam,
Ex-Chairman cum Ex-Honorary Secretary,
Election Sub-Committee,
Tamilnadu Table Tennis Association,
Room No.82, Jawaharlal Nehru Stadium,
Periamet, Chennai 600 003. ... Respondents
This application has been filed under Order XIV Rule 8 of O.S. Rules Read with Order VII Rule 11(A) of Code of Civil Procedure to reject the plaint.
Applicant : Mr.J.Sivanandaraaj
for P.V.Sabaridas
Respondents : Mr.A.Silambanan, Senior Counsel
for Kavya Silambanan Associates
O R D E R
This application has been filed by the applicant/first defendant to reject the plaint.
2. It is the contention of the applicant that as per the plaint averments, the main grievance of the plaintiff is that the rejection of their nomination by the Honourable Observer, (Retired Judge of this Court) appointed in W.P.No.12968 of 2018 is bad. It is the contention of the applicant that the nominations were scrutinized by the Honourable Observer and he has found that certain nominations were invalid on the ground that either the proposer district or the seconder district and in some cases both the districts were in arrears to the association as on March 15th, 2018. Therefore, as per Article X and XII (h)(iv) of Articles of Association, their nominations were rejected. It is the further contention of the applicant that as per Article X of the Articles of Association, only a District Association, who has no arrears and have paid their subscription on or before 15th of March of that year will alone be eligible to vote in the election. Similarly, the nominations will be valid only if the proposer and seconder are from two different district associations who are eligible to vote. Therefore, only the District Association who are not in arrears to the Association as on March 15th 2018 are alone eligible to vote and nominate in the election held on 27.05.2018. Since, the nomination of certain candidates including the nomination of the present plaintiff herein was not in accordance with Article X and XII (h) (4) of the Articles of Association, the Honourable Observer appointed by the Honourable Court has rejected the nominations. The plaintiff has challenged the said rejection of nomination in the present suit. However, the plaintiff has not filed any documents along with the plaint to show that the proposer and the seconder districts have paid their subscription fees before March 15th, 2018. In the absence of the said document, the plaint averments do not disclose any cause of action. Further, the plaintiff has filed a letter dated 27.05.2018 addressed to the Honourable Observer wherein she has categorically admitted that her nominations and certain other candidate's nomination are not in accordance with Article X and XII (h) (4). Therefore, in the light of the admission made by the plaintiff in her letter dated 27.05.2018, the plaint is liable to be rejected on the ground of non-disclosure of cause of action.
3. The respondent/plaintiff filed counter denying the entire allegations. It is the case of the plaintiff that the entire election process was erroneous and even the Order in W.P.No.12968 of 2018 has been obtained behind the back of the plaintiff by playing fraud on Court and by collusion. The further contention is that the sub Committee which was formed consisting of 5 members as per the Article XII (h)(i), the said members should issue the valid nomination list. But the Sub Committee got divided into two groups and Sub Committee published 2 different lists which itself goes against the Articles of Association. Various such vital grounds have been raised in the plaint and it is not as projected by the applicant. The plaintiff has also filed documents to show that her nomination and certain others have been duly accepted by the Sub-Committee which released the list of eligible voters in which the plaintiff name also figured. In fact the plaintiff has also filed documents to show that most of the voters and Association have protested before the Honourable Observer and the Observers, who were appointed by the parent body, i.e., TTFI, have also expressed their view before the Honourable Observer that the nomination list given by the Sub Committee consisting of 3 persons was valid. Therefore, the allegation that the plaintiff has filed no document is false and prayed for rejection of the application.
4. It is the contention of the learned counsel for the applicant/first defendant is that the main grievance of the plaintiff is that the rejection of her nomination by the Honourable Observer (Retired Judge of this Court), appointed in W.P.No.12968 of 2018 is bad. The nominations have been scrutinized by the retired Judge and decision has been taken. As per Clause X of the Articles of Association only a District Association who has no arrears and have paid their subscription on or before 15th of March of that year will alone be eligible to vote in the election. Similarly, as per Article XII (h) (4), the nominations will be valid only if the proposer and seconder are from two different district association, who are eligible to vote.
5. Further, according to the learned counsel for the applicant, there is no documents available on record to show that the arrears as on March 15th, 2018 has been paid. In the absence of such document, the plaint averments does not disclose any cause of action. It is the further contention of the learned counsel for the applicant that except the plaintiff, the others have not challenged the election. The plaintiff has filed only one receipt dated 27.04.2018 at page 11 and the same is for payment made by Kanyakumari for affiliation fee. It clearly show that it does not relate to the arrears to the association as on March 15, 2018. The receipt dated 28.08.2017 maintained by the applicant would reveal that the said deposit challan has been filed by the plaintiff only with an intention to mislead this Court. It is the further contention of the learned counsel for the applicant that the husband of the plaintiff in collusion with the plaintiff had fabricated the deposit challan and filed the same before this court in order to sustain the suit and the act of the plaintiff is highly condemnable and it is a clear case of fraud played upon the Court and the plaintiff has not approached this Court with clean hands.
6. It is the further contention of the learned counsel that the split in the Election Sub committee is only due to the act of the plaintiff and her husband Mr.J.Selvakumar. The plaintiff's husband volunteered himself to a member of Election Sub-Committee. Only after obtaining the consent of all the five members of Election Sub Committee, the Executive Committee had appointed the five member Election Sub Committee to conduct the election which was scheduled to be held on 27.05.2018. After giving consent to be a member of Election Sub Committee the said Mr.J.Selvakumar has sent an e-mail to the Chairman of Election Sub Committee and sought clarification 'as to whether being a member of Election Sub-Committee can he contest the election?' It was also replied to him that since he is a member, he cannot contest in the elections and he was requested to continue as a member of the Election Sub Committee. For the said clarification, he has not sent any reply. However, along with two other Election Sub Committee members, Mr.J.Selvaraj filed nomination to contest election. Thereafter, there was an objection which lead to filing of the Writ Petition to conduct election. In the Writ Petition, a retired Judge of this Court was appointed as an observer. He has scrutinized the nominations and the election has been conducted. Hence, submitted that there is no cause of action for the present plaint. The plaintiff has not filed any document to show that the nomination was properly done and the arrears has been paid as on 15th March, 2018. Hence, prayed for rejection of the plaint. He has also relied upon the judgments reported in 2007(1) CTC 251 [Poppat Jamal & Sons, rep. By its Managing Partne], Mahmud Jamal Vs. N.M.Venkatachalapathy @ Babulal and another], 1977 (4) Supreme Court Cases 467 [T.Arivandandam Vs. T.V.Satyapal and another] and 2012 (8) Supreme Court Cases 706 [Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee].
7. The learned counsel for the respondent/plaintiff submitted that the suit is not filed challenging the election on the ground of rejection of the nomination of the plaintiff alone. Entire action as to election has been assailed. The Articles of Association clearly provides five member Sub Committee to provide a list. Whereas, the election observer has accepted the list from two members and majority of the members namely three members list was rejected and the entire election has been conducted against the Articles of Association. Therefore, submitted that the contention of the applicant that there is no cause of action for filing the suit is baseless and pressed into service only in order to delay the proceedings and delay any Orders that may be passed in the application. Hence, submitted that absolutely there is no merit in the application and prayed for dismissal of the application.
8. The suit is filed for the following reliefs :
a) to declare the election dated 27.05.2018 held by the first defendant Association as null and void;
b) for mandatory injunction directing the first defendant to call for fresh Executive Committee Meeting and Annual General Body Meeting as required to conduct, fair and transparent election to the posts of Office Bearers of the Tamil Nadu Table Tennis Association with two Observers of the Table Tennis Federation of India, New Delhi by strictly following the Articles of Association of the first defendant at the earliest within a time frame as may be fixed by this Court and
c) for cost.
9. It is the case of the plaintiff that the first defendant Association is at Chennai and each of 22 Revenue Districts in Tamilnadu has a District Association which is affiliated to the first defendant i.e., Tamilnadu Table Tennis Association. Each District Association is said to be a 'Member' of the first defendant Association. The first defendant Association is governed by 1 President, 6 Vice Presidents, 6 Joint Secretaries, 1 Honorary Secretary, 1 Honorary Treasurer, one representative from each District Association. All the above Executive Committee Members except the representative from each District Association are also called the Office Bearers of the first defendant and the official year of the first defendant Association shall be from 1st April to 31st March of the following year. The plaintiff is a former National Games Champion in Table Tennis and she is also a Gold Medalist in the South Asian Games and represented India on many occasions and brought laurels for the country. Over three years there has been no elections held in the first defendant Association and the Office Bearers were nominated unanimously in the Annual General Body Meeting. Therefore, dissatisfaction arose among the members at the functioning of the Executive Committee and hence, there was a general demand from the members that elections should be held as per the Articles of Association of the first defendant for the post of Office Bearers of the first defendant.
10. Thereafter, a letter dated 05.05.2018 was issued to the office bearers/district Associations stating that in the agenda for the Annual general Body Meeting to be held on 27.05.2018 includes to have elections to select new Office Bearers of the Tamilnadu Table Tennis Association. The last date for filing nominations was fixed as 14.05.2018 before 3 p.m. and last date for withdrawal was fixed as 15.05.2018 before 3 p.m. In the said letter, the Executive Committee had formed Sub Committee for the above purpose consisting of the following 5 member as per Article XII (h) (i). Certain Sub Committee members had applied for nomination. Thereafter, they were informed that they cannot contest. Therefore, the Sub Committee members decided to withdraw their nominations. It appears that thereafter on 05.05.2018 another letter was issued to all the District Secretaries/Office bearers to pay the affiliation fee or any other fee on before 27.05.2018.
11. It is the further contention of the plaintiff that on 05.05.2018 itself the first defendant issued mail to the Table Tennis Federation of India requesting them to appoint an Observer to oversee the nomination work/election work in order to ensure fair and proper conduct of election. Accordingly, on 21.05.2018, the TTFI sent a mail nominating two Observers Mr.T.G.Upadhya, Secretary of the Karnataka TTA and Mr.Jinendra Jain, Advocate and Associate Joint Secretary of TTFI from Delhi. It is the further contention of the plaintiff that despite the 3 Sub Committee members have chosen to withdraw their nominations, the then Chairman of the Sub Committee namely the second defendant herein, has refused to accept their withdrawal in order to frustrate the fair election process. By saying so, they started to scrutinize the nominations independently along with one member. The 3 members of the Sub Committee who had withdrawn their nominations on 15.05.2018 within the stipulated time, had also scrutinized the nominations simultaneously.
12. In such scenario, the Chairman and another member issued a list of valid nominations dated 15.05.2018 signed only by the second defendant. The list contained 15 names. The other group issued a list of valid nominations consisting of 30 contestants. The elections were scheduled to be held on 27.05.2018. The plaintiff and others were informed that the election will take place in a smooth manner with TTFI sending two of its Observers. However, there were confusions among the members and voters, since the second defendant had arbitrarily rejected the nominations of various members at his will and pleasure. Suddenly on the end of the day on 26.05.2018, the interim Order in the Writ Petition has been filed by one Mr.A.V.Vidyasagar, Honorary Secretary by which Honourable Mr.Justice S.Rajeshwaran, retired Judge of this Court has been appointed as an Observer to conduct election. The above Writ Petition has been filed behind the back of the plaintiff and others members and the above Orders have been obtained by suppression of facts.
However, the Order of this Court has been implemented and the Observer has conducted elections.
13. The plaintiff has challenged the elections on various grounds. Though, as per Article XII (h) (i) states that the Sub Committee shall consist of 5 persons, in the present case, the Sub Committee Chairman had suo motto arbitrarily removed majority of the members and proceeded to scrutinizing the nominations and only two members were in the sub committee have scrutinized the nomination papers. Hence, it is in clear violation of Article XII (h) (i) and is void ab initio. Similarly, the valid list of nominations sent by 3 Sub Committee members has not been taken into consideration. The calendar for election was not prepared by the Sub Committee of 5 persons. Despite the fact that there is no arrears as on 15.03.2018, many valid nominations were rejected. Similarly many people even they are not eligible to contest have been proposed and seconded by themselves contrary to the Article XII (h) (iv) of the Articles of Association. Single nomination form is filed for 15 candidates, who have ultimately been selected without contest. Though the Honourable Observer has been appointed, he has refused to go into the valid objections submitted by 17 District Table Tennis Association Members and the plaintiff on 27.05.2018 stating that all these objections should be submitted only in the Court and he will not go into the same. Hence, alleged various irregularities to declare the election as null and void.
14. It is well settled that the plaint shall be rejected only if it does not disclose cause of action. On the other hand, if the plaintiff states the various facts and circumstances, which are material for filing the suit and claims that those are the cause of action, it is enough to hold that the plaint discloses cause of action. Similarly, it is also well settled that to find out whether there is no cause of action in the suit, the Court has to only go by various averments made in the plaint to find out whether it discloses the cause of action or not and not to judge the issue based on the defence raised by the defendant in his pleadings or submissions.
15. The main allegation raised by the defendant in the application for rejection of the plaint is that there is no document filed to show that the plaintiff proposer and seconder has paid arrears as on 15.03.2018. Therefore, there is no cause of action. I am of the view that such a contention has no basis for the simple reason that as discussed above, the plaintiff has not challenged the election only on the ground that her nomination has been rejected. She has assailed the election on the ground of violation of Articles of Association and also on the ground of rejection of various nominations. Further, the nominations were scrutinized by 2 member committee, the Sub Committee which is not permissible under the Articles of Association and no new Committee was appointed to conduct elections as per the bye laws.
16. When the facts and circumstances pleaded in the plaint indicate that there are various circumstances pleaded as against the defendant and various circumstances has been pleaded to annul the elections, all the pleadings are a matter of evidence. Therefore, at this stage, it cannot be gone into whether there is no cause of action or not. The cause of action is a bundle of facts including some acts done by the defendant, if traversed it would be necessary for the plaintiff to prove, in order to support his claim for the relief sought for in the suit. The cause of action includes material facts on which it is founded.
17. Therefore, the circumstances pleaded in the plaint, in my view, clearly indicate cause of action. The contention of the learned counsel for the defendant that the husband of the respondent has fraudulently fabricated the receipts dated 28.07.2017 and filed along with the plaint also cannot be gone into at this stage. Whether those receipts are result of fabrication or not is a matter for evidence. Though it is the contention of the applicant that the document filed along with the plaint itself show the amount has only been paid on 27.04.2018, by the Kanyakumari District Association. Therefore the contention of the applicant that the respondent has colluded with her husband and has created documents has also no relevance. It is to be noted that the Indian Bank Challan dated 28.08.2017 said to have been filed by the Thoothukudi and Kanyakumari Association has also been filed along with the plaint. It is the contention of the plaintiff that the challan dated 28.08.2017 relates to current arrears as on 15.03.2018. Therefore, whether these documents relate to the particular period or not is a matter to be decided during trial. At that this stage we cannot conduct roving enquiry. These are all matter for evidence. When the election is assailed on various grounds, if there are circumstances pleaded in the suit, plaint cannot be rejected merely on the ground that there is no cause of action.
18. The judgment relied on by the applicant in 2007(1) CTC 251 [Poppat Jamal & Sons, rep. By its Managing Partner, Mahmud Jamal Vs. N.M.Venkatachalapathy @ Babulal and another] the Honourable Supreme Court considering the fact that the plaintiff omitted to produce the document, rejected the plaint. Hence, the above judgment is not applicable to the facts of this case. Admittedly, in this case, the documents are available and the authenticity of the documents can be gone into only at the time of trial.
19. Similarly, the judgment reported in , 1977 (4) Supreme Court Cases 467 [T.Arivandandam Vs. T.V.Satyapal and another] relied upon by the applicant when carefully perused, the above judgment has arisen out of the election petition, the Honourable Supreme Court taking note of the fact that the material facts and full particulars is not provided in the petition held that the petition is not maintainable. The above judgment is also applicable to the facts of this case.
20. In the judgment reported in 2012 (8) Supreme Court Cases 706 [Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee] as the documents on which cause of action has been based not produced, the suit was rejected. The facts of the above judgment is also not applicable to this case.
21. In 1989 (4) Supreme Court Cases 482 [U.S.Sasidharan Vs. K.Karunakaran and Another] the Honourable Supreme Court taking into account the conduct of the parties, to avoid execution and in filing frivolous suits, held that such vexatious suit should be struck off with costs. But in this case, as discussed earlier, the plaintiff has challenged the election on various grounds and there is cause of action and the plaint itself clearly indicate that the election was assailed on various grounds. Therefore, I am of the view that the contention of the applicant that there is no cause of action cannot be countenanced.
22. Accordingly, this application is dismissed.
.08.2018 vrc N.SATHISH KUMAR, J.
vrc Predelivery Order in A.No. 5156 of 2018 in C.S.359 of 2018 .08.2018