Madras High Court
Arulmigu Abhinava Dharma vs P. Ekambaram
Author: N. Sathish Kumar
Bench: N.Sathish Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON DELIVERED ON 23-07-2018 31-07-2018 Coram: THE HON'BLE MR. JUSTICE N.SATHISH KUMAR O.A.Nos.648 and 649 of 2018 and A.No.5187 of 2018 in C.S.No.455 OF 2018 Arulmigu Abhinava Dharma Sivachariar Mutt rep. By Treasurer & Trustee P.P. Krishnamurthy ... Applicant/Plaintiff [in all 3 applications] Versus 1.P. Ekambaram 2.A.N.Sureshkumar 3.G.Gopal ... Respondents/Defendants [in all 3 applications] Prayer in O.A.648 of 2018: Original Petition has been filed to grant interim injunction restraining the respondents1 & 2/defendants 1&2 their agents or any one on their behalf from in anyway acting as Office Bearers or in any other capacity of Applicant/Plaintiff's Mutt, either by operating Bank Account of the Applicant/Plaintiff's Mutt either by operating its Bank Accounts No.10885932861 with State Bank of India, George Town, and No.3342010048555 with Union Bank of India Sowcarpet or in any other manner without express consent/permission of Treasurer P.S.Krishnamurthy pending disposal of the suit. Prayer in O.A.649 of 2018: Original Petition has been filed to grant interim injunction restraining the respondents1 & 2/defendants 1&2 their agents or any one on their behalf from in anyway acting as Office Bearers or in any other capacity of Applicant/Plaintiff's Mutt, either by operating Bank Account of the Applicant/Plaintiff's Mutt or in any other manner pending disposal of the suit. Prayer in A.5187 of 2018: Application has been filed to appoint an Advocate Commissioner to hold the election to all the trustees and office bearers of the Applicant/Plaintiff Mutt by following all the Procedue and norms fiexed for the same fixing a time frame. For Petitioner : Mr.AR.L. Sundaresan Senior Counsel for T.K.S.Gandhi For Respondents : Mr.V. Lakshmi Narayanan for M/s.Pass Associates COMMON ORDER
These applications are filed to grant interim injunction restraining the respondents1 & 2/defendants 1&2 their agents or any one on their behalf from in anyway acting as Office Bearers or in any other capacity of Applicant/Plaintiff's Mutt, either by operating Bank Account of the Applicant/Plaintiff's Mutt either by operating its Bank Accounts No.10885932861 with State Bank of India, George Town, and No.33402010048555 with Union Bank of India Sowcarpet or in any other manner without express consent/permission of Treasurer P.S.Krishnamurthy and to appoint an Advocate Commissioner to hold the election to all the trustees and office bearers of the Applicant/plaintiff Mutt, pending disposal of the suit.
2. The case of the applicant is that the Mutt formed several decades before is effectively run till date. Earlier, one Mr.P.K. Krishnamurthy was its President and Mr.P. Ekambaram was the Secretary. Both of them resigned by submitting letters to the Mutt on 15.10.2016 and 22.10.2016 respectively. This was duly accepted in the Minutes of Meeting, duly signed by the Treasurer and A.N.sureshkumar. The applicant being the life time Trustee of the mutt continuous to hold as Treasurer. Among other three trustees, Tr.K.M. Venkatesan died; Thiru A.N.Sureshkumar resigned and only Thiru G.Gopal continues to be other Trustee. Therefore, the Mutt is run by Treasurer T.S. Krishnamurthy and Trustee G.Gopal. The Mutt is having two bank accounts. Both can be operated with the signature of President, Secretary and Treasurer, jointly and cannot be operated by any one of them independently. As the post of the President and Secretary are vacant, bank accounts could not be operated by the plaintiff. Respondents 1 and 2, in connivance and conspiracy with the 3rd respondent suddenly entered the premises and made out a Minutes of Meeting as if Meeting of Trustees was conducted on 26.06.2018 to operate the accounts. This was done with the connivance and assistance of 3rd respondent. Hence, the respondents 1 and 2 are no longer office bearers of the Mutt and 3rd respondent is only a Trustee, the affairs of plaintiff Mutt have to be managed and dealt with only by the existing treasurer who is the applicant. Therefore, the applicant has come before this Court for the above prayers and also to appoint an Advocate Commissioner to hold election to all the Trustees and office bearers of the Mutt.
3. It is the main contention of the applicant that the respondents 1 and 2 resigned, therefore, an Advocate Commissioner has to be appointed to hold election of the Trustees. In both applications a common counter has been filed.
4. It is the contention of the respondent that the Mutt belongs to the Beri Chetty Community and the same is governed by the Scheme decree in C.S.No.376 of 1883. Instead of moving an application in that suit, in order to project as he is representing the trust, has filed fresh suit. It is admitted that Mr.P.K. Krishnamoorthy then President has resigned and Mr.Venkatesan has expired leaving respondents 1 to 3 and applicant to manage the affairs of the Trust. It is the contention of the respondent that due to the acts of mismanagement of the applicant, the respondents 1 and 2 wrote a letter of resignation. However, the same was never accepted. Thereafter, beneficiaries viz., persons belonging to the Beri Chetty community approached and requested the respondents to take back the resignations as the same was not accepted. Even before the Trust Board was reconstituted and the resignation was accepted, the respondents 1 and 2 have by their actions withdrawn the same. These facts are well within the knowledge of the applicant. In fact, previous resignations were accepted when there was quorum in the trust. On the death of one trustee and the resignation of the other, the number of trustees were reduced to bare minimum quorum as per the scheme decree. Therefore, the averment that their resignation had been unilaterally accepted by the applicant is not only legally untenable but also factually erroneous. It is also submitted that the applicant has declared as willful defaulter and facing SARFAESI proceedings. Hence, prayed for dismissal of the injunction applications, however, there is no objection to conduct the election for four vacancy which is actually available.
5. Heard both sides. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the applicants submitted that Mr.P.K.Krishnamoorty, President resigned on 15.10.2016 and Mr.Ekambararm, the Secretary also resigned on 22.10.2016 in respect of which minutes also passed. Similarly one Tr.A.N. Sureshkumar, 2nd respondent also resigned on 17.11.2016 for which also minutes was passed. Therefore having resigned, the respondents 1 and 2 with the connivance of 3rd respondent passed resolution to operate bank accounts which cannot be permissible under law. Hence, the applicant sought interim injunction against them and also seeks to appoint an advocate commissioner to hold the election.
6. Mr.V.Lakshminarayanan counsel for the respondents submitted that though resignation letters were sent, which have to be accepted only by the quorum. Admittedly there is no quorum in the trust. The applicant himself appears to have passed the resolution, which is not valid in the eye of law. Hence, there cannot be any injunction against the respondents restraining from the activities of Mutt. Further, the applicant is a chronic defaulter before various banks and he is facing SARFAESI proceedings. Hence, submitted that there cannot be any injunction in his favour. It is further contended by the learned counsel for the respondent that the Mutt is governed by the Scheme decree in C.S.No.376 of 1883. If there is any grievance, the applicant should haven taken out separate application in the scheme suit. Since the plaintiff and defendants 1 to 3 are already holding office Trust there are only four vacancies to the office of the trust. The respondents have no objection to appoint an Advocate Commissioner to hold the election for four vacancies available in the Mutt.
7. Heard both sides and perused the records. The applicant Mutt is governed by Scheme Decree in C.S.No.376 of 1883. This fact is not disputed. And on perusal of the above decree and judgment it is very clear that five members of the committee shall form a quorum for the transaction of business at any meeting of the said Committee. From the scheme it is made clear that 5 Member quorum is necessary to take any decision. Though the 1st respondent sent his resignation letter on 22.10.2016 and the same was accepted by two trustees on 26.10.2016 and the resolution said to have been passed on 14.11.2016 by a single trustee. Similarly, A.N.Sureshkumar resignation also said to have been accepted by the applicant without any quorum. In this regard, it is useful to refer the following judgments:
7.(i) In Lala Man Mohan Das vs. Janki Prasad and Ors., AIR (32) 1945 Privy Council 23 it is held as follows:
"38. In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees, they all form as it were but one collective trustee, and therefore must execute the duties of, the office in their joint capacity. It is not uncommon to hear one of Several trustees spoken of as the acting trustee, but the Court knows no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuse or be incapable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved."
7(ii) In Janakirama Iyer Vs. Nilakanta Iyer [AIR 1962 SC 633] it is held as follows:
"19. Lewin on "Trusts" has observed that "in the case of co-trustees the office is a joint one. Where the administration of the trust is vested in Co-trustees they all form as it were but one collective trustee, and therefore must execute the duties of the office in their joint capacity. it is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinctions, all who accept the office are in the eyes of the law acting trustees. If anyone refuses or be incapable to join it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee any be regarded as the act of both. But such sanction or approval must be strictly proved (1) If one of the trustees refuses to join in the execution of the trust, under the Indian law s.34 of the Trusts Act provides for the remedy. The other trustees can apply to the Court as contemplated by 8. 34 and the trust may accordingly be executed.
20. ... ... ... ... ...
21. ... ... ... ... ... It is not necessary under the clause that in the matter of executing the trust every decision must he unanimous. The clause recognises that in some matters decision may be by majority; but nevertheless it requires that once a decision is reached either unanimously or by majority, in giving effect to the decision and in taking any given action in the execution of the trust all the three must act. Thus read this clause conforms to the statutory provision contained in 8. 48 of the Indian Trusts Act and is not intended to provide for an exception to the said provisions at all. ... ... ..."
8. From the above judgments it is very clear that if any resignation is not approved by the beneficiary of the Trust and not strictly in accordance with the scheme of the Trust Deed, it cannot be treated as resignation as per law. Admittedly as per the scheme five (5) members quorum is necessary. Similarly their resignations also to be approved by the five (5) members quorum. As there was no quorum in the Mutt at the relevant point. Therefore, merely on the basis of the resignation sent by the respondents 1 and 2 it cannot be said that they resigned from the Trust without proper approval or sanction as per the scheme by way of majority. When the resignation is not sanctioned as per the scheme, the trustees continue in the office. Therefore, I am of the view that there cannot be any injunction as against the defendants restraining them from acting as office bearers and operating bank accounts. In view of the same O.A.Nos.648 and 649 of 2018 are liable to be dismissed. Accordingly the same is dismissed.
9. As far as the Application No.5187 of 2018 for appoint of an Advocate Commissioner is concerned, admittedly the resignation of the respondents has not been approved as per law, so that they are continuing in their office. The plaintiff and the defendants are also trustees of the Mutt, now it appears that there are four (4) vacancies available in the Mutt. The vacancies have not been filled up, as admitted by both sides. Hence, I am of the view that the election is necessary to fill up the vacancies of Trustees in the plaintiff's Mutt. To achieve the above purpose this Court is ordered as follows:
(i) Learned Advocate Mr.L. Chandrakumar (Phone No. 044 25367800 No.14, 3rd Floor, Sunkuram Street, Parrys, Chennai) be and is hereby appointed as Advocate Commissioner.
(ii) The Advocate Commissioner appointed herein shall make necessary preparation for conducting election for 4 (four) vacancies of Trustees by following proper procedure and also as per the Scheme Decree in C.S.No.376 of 1883. Every endeavour should be made by the Advocate Commissioner to complete election expeditiously in terms of the object and scheme of the Trust.
(iii) The remuneration for the Advocate Commissioner is fixed at Rs.50,000/- (Rupees Fifty thousand only) and the said sum shall be drawn and paid from the funds of the plaintiff's Mutt
(iv) That the Advocate Commissioner appointed herein be and is hereby empowered to appoint any other advocate or office in charge for his assistance for conducting elections and also draw assistance from the existing staff of the Trust as he shall deem fit as necessary. For such purpose amount shall borne by the Trust.
v. That the existing Trustees and other officials of Trust shall co-operate with the Advocate Commissioner for smooth Election.
vi. The Advocate Commissioner shall complete the election process within 6 (six) months from the date of receipt of copy of this order.
10. With the above terms A.No.5187 of 2018 is ordered.
11. In the result, O.A.Nos.648 and 649 of 2018 are dismissed and A.No.5187 of 2018 is ordered.
31-07-2018 Index:Yes/No Internet:Yes/No ggs.
N. SATHISH KUMAR, J.
ggs order in:
O.A.Nos.648 and 649 of 2018 and A.No.5187 of 2018 in C.S.No.455 OF 2018 31-07-2018