Bombay High Court
Ramswaroop Sunderlal Goyal vs North India Association on 29 April, 2013
Author: A. H. Joshi
Bench: A. H. Joshi
S
1 fa15.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.15 OF 2013
WITH
CIVIL APPLICATION NO.91 OF 2012 IN F.A.NO.15 OF 2012
Ramswaroop Sunderlal Goyal
Residing at 3/258, Kailash Bhavan,
Sion Main Road, Sion (West),
Mumbai - 400 022. .. Appellant.
Vs.
North India Association
having office at
Bhandaji Road Extension,
Behind King's Circle
Railway Station, Off. Sion
Main Road, Sion (West),
Mumbai 400 022.
ig .. Respondent.
Mr. Pritesh Rajgor i/b Ms. Usha Rahi for the appellant.
Ms. Sweta. H. Doshi for the respondent.
CORAM : A. H. JOSHI, J.
DATED : 29TH APRIL, 2013.
JUDGMENT :
1. Appeal is taken up for final disposal with consent of parties. Heard at length. Perused the record as produced.
2. This is the first appeal by unsuccessful plaintiff.
3. The plaintiff's case espoused in the plaint is as follows:-
(a) The plaintiff was member of the defendant's association. The defendant is society registered under Societies Registration Act.::: Downloaded on - 09/06/2013 19:52:09 :::
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(b) By the letter dated 9th September, 2010 the managing committee of the defendant has removed the plaintiff from his life membership. Reason assigned is that the plaintiff had misbehaved on 3rd September, 2010 by physically assaulting the staff of association and that misbehavior of the plaintiff was recurrent and repeated inspite of warning and even suspension in past.
(c) The defendant had failed to prove the misbehavior and even failed to produce copy of the complaint and the basis on which managing committee took decision.
(d) The plaintiff's request made through letter dated 29th January, 2011 asking for documents was not acceded.
4. The foundation for claim and basis of the relief, as is averred in paragraph 6 of the plaint reads as follows :-
"6. The Plaintiff also pointed out that the alleged termination / dismissal was invalid, illegal and bad in law on the following grounds, viz:
(a) No show cause notice is given to the Plaintiff.
(b) Copy of Complaint/s are not furnished to the Plaintiff.
(c) Opportunity of cross-examination is not given.
(d) Opportunity of filing Reply/defence is not ::: Downloaded on - 09/06/2013 19:52:09 ::: 3 fa15.13 given.
(e) Opportunity of personal hearing is not given.
(f) The purported decision is arbitrary and malafide as the present management are victimizing the Plaintiff."
(quoted from page 46 of appeal paperbook)
5. Based on these pleadings the plaintiff has prayed for the relief as under :
"(a) That declare that this Hon'ble the Court Plaintiff's may be please termination to / dismissal as Defendant's membership vide letter dated 09/09/2010 is invalid, illegal, bad in law and liable to be quashed and the same stands quashed by this Hon'ble Court.
(b) For a permanent as also interim and ad-
interim order and injunction of this Hon'ble Court restraining the Defendant from enforcing, acting upon or implementing the said letter dated 09/09/2010 copy Exhibit "A" to the Plaint whereby it has allegedly terminated / dismissed of the Plaintiff's membership."
(quoted from page 48 of appeal paperbook)
6. The defendant filed the written statement opposing the plaintiff's claim and prayers. According to the defendant :-
Plaintiff's conduct was uncivil, rowdy and a grave misbehavior. Earlier plaintiff's membership was suspended by letter dated 2nd February, 2009. He was already informed ::: Downloaded on - 09/06/2013 19:52:09 ::: 4 fa15.13 that if he misbehaves thereafter it will entail dismissal from membership on 3/9/2010. The committee received complaint from the employees/staff about abusing and assault on them by the Plaintiff. Therefore, the committee took decision to dismiss the plaintiff from its membership, considering that the conduct of plaintiff fell within tooth of clause 10(v) of memorandum of association.
Therefore the defendant had prayed for dismissal of the suit.
7. The suit proceeded. The plaintiff led his evidence by way of affidavit of examination in chief and also produced certain documents. The plaintiff relied mainly on his request for production of documents which was not complied by the plaintiff. He has also placed on record certain documents which relate to his suspension and copy of the order of dismissal from membership.
8. In the evidence by way of examination in chief on affidavit the plaintiff has averred in paragraphs 6 and 7 as follows :-
"6. I say that since I was not provided with same as above and did not expect any justice from the Defendant, I vide my Advocate's letter dated 20th January, 2011 called upon the Defendant to comply with the following :-
(a) Give particulars of the meeting of the ::: Downloaded on - 09/06/2013 19:52:09 ::: 5 fa15.13 Managing Committee held wherein the said decision is taken.
(b) Furnish copy of Notice calling for the meeting, copy of Agenda and copy of Resolution.
(c) Furnish copy of the Rules and Regulation of the Association.
(d) Give particulars of the alleged gross behavior of our client.
(e) of Give particulars of the alleged assault staff of the Association with proof of employment.
(f) Furnish copy of Complaint/Statement of the staff with opportunity to cross-examine.
(g) Give particulars of the alleged Repeated warnings/suspension in the past.
7. I say that I also pointed out that the alleged termination/dismissal was invalid, illegal and bad in law on the following grounds, viz:
(a) No show cause notice is given to our client.
(b) Copy of Complaints are not furnished to our client.
(c) Opportunity of cross-examination is not given.
(d) Opportunity of filing Reply/defence is ::: Downloaded on - 09/06/2013 19:52:09 ::: 6 fa15.13 not given.
(e) Opportunity of personal hearing is not given.
(f) The purported decision is aribtrary and malafide as the present management are victimising our client."
(quoted from page 81 and 82 of appeal paperbook)
9. The defendant did not led any evidence and remained content with its plea of denial.
10. The learned Judge dismissed the suit, by impugned judgment and decree.
11. It is seen that learned trial Judge held on facts that the plaintiff's misbehavior was an admitted fact and considering past record of misbehavior of the plaintiff, the plaintiff had failed to prove that dismissal of his membership was contrary to law etc.
12. In this appeal the points which are urged are summarised as follows :-
(a) The termination of membership was contrary to law.
(b) The principles of natural justice were violated while membership was terminated.::: Downloaded on - 09/06/2013 19:52:09 :::
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(c) The defendant has failed to prove misconduct of the applicant either by holding inquiry or before the court.
13. Heard both sides and perused the record tendered in court as and by way of additional compilation which is made part of the paperbook.
14. The questions which arise for consideration of this
(a) court while deciding this appeal are as follows :-
Has the plaintiff proved that the termination of his membership done by the defendant is contrary to :-
(i) to any provision of law or statutory rule;
(ii) to any bye-laws of the society or any rules contained in memorandum of association;
(iii) to any civil right or customary right, which can be enforced by decree of specific performance.
(b) Was the defendant under obligation to give hearing and opportunity to defendant's dismissal by observing principles of natural justice ?
(c) Has the plaintiff proved that breach of contract has occurred due to non observance of any of the clause of memorandum of association, and that said wrong is remediable by grant of a decree ::: Downloaded on - 09/06/2013 19:52:09 ::: 8 fa15.13 for declaration and injunction ?
15. The relief in nature of injunction as under specific relief Act is meant for preventing recurrent breach of the right of the plaintiff and reciprocal obligation of the defendant.
Therefore, the plaintiff was under obligation to prove that the defendant was bound in law or by virtue in terms of contract or otherwise ig in general law to perform any particular obligation which has a reciprocal vested civil, contractual or legal right of the plaintiff, in performance of said duty, the defendant had failed.
16. In the process of hearing learned Advocate for the plaintiff was called to pinpoint and show the rule of law, statutory rules etc. due to which it is obligatory on the part of defendant to observe principles of natural justice before terminating the membership.
17. The appellant was not able to show that by virtue of any of the provisions of law or rules contained in bye-laws of the society that observance of principles of natural justice was a condition precedent or was a condition of contract or stipulation laid down by the bye-laws or Memorandum of Association or Constitution, that observed before effecting the termination of membership, the procedure such as show ::: Downloaded on - 09/06/2013 19:52:09 ::: 9 fa15.13 cause, hearing and observance of principles of natural justice shall be imperative.
18. It has to be inferred that plaintiff wants to urge that the observance of principles of natural justice is an implied condition of contract.
19. This court has to bear in mind that :-
(a) The defendant's association is a juristic person and it not an authority of state or a statutory body created as an organ or agency of the State to perform any or many statutory functions and duties.
(b) The defendant's creation is done by private individuals by a memorandum of association created by law rather its creation is recognised and registered under Societies Registration Act as legal entity.
(c) The status and personality of the defendants is that of "Private individual and not of State or authority of State".
(d) Relations of society with its members are contractual and are not governed by statute law or a rule having force of a statute.
20. Therefore, it was not obligatory on the part of the defendant, in absence of mandatory statutory law or rule to prove to prove misconduct of the appellant by observing principles of natural justice before terminating the ::: Downloaded on - 09/06/2013 19:52:09 ::: 10 fa15.13 plaintiff's status as a life member of the defendant association.
21. Moreover, the Plaintiff had never denied his acts, rather had in a tacit way admitted his acts of misbehavior through letter dated 21.1.2011 and also admitted those in some indirect manner through the averments contained in paragraph 8 of the plaint.
22. The respondent - defendant, therefore, does not have any receiprocal statutory ig obligation to observe principles of natural justice in process of terminating the members.
23. The termination of membership, if at all argued to be contrary to principles of natural justice as understood in common parlance, even in such an eventuality, the action of respondent may amount to a breach of a term or stipulation of contract i.e. the Memorandum of Association, and hence said breach cannot be remedied by injunction though it is a entity juristic person. The relief in nature of enforcement of contractual obligation which is to be performed by group of individuals i.e. association is contract of personal relationship and/or of personal service, and it cannot be enforced by a decree of Civil Court.
24. Last submission is that the of allegation made against plaintiff are not proved against him by legal evidence and ::: Downloaded on - 09/06/2013 19:52:09 ::: 11 fa15.13 indirectly committed breach of contract of continuing as member of the association, could at the most, if proved, and if not disproved amount to be a breach of contract and could be remedied by award of liquidated damages. However, any such claim too has to be legally proved by the Plaintiff in which the Plaintiff has failed to prove.
25. This court has to bear in mind, a fact that the membership of any social club or association is often a matter of honour than a right. When it comes to need of good etiquettes and good behavior law has its limited role.
26. The conduct of parties to the private contract cannot be supervised on day-to-day basis and even on this ground, a decree for specific performance would not be ordered by the court. Therefore, the plaintiff's claim is of such nature that though declaration that the termination may eventually be found to be contrary to principles of natural justice, yet a decree for injunction cannot be granted, since observance of principles of natural justice is neither condition prescribed by any law nor is provided by contract between the parties.
27. In the given situation in absence of plaintiff succeeding in showing before the trial Court or this court any statutory obligation enforceable as contract and/or law a decree for injunction cannot be passed, in view of the embargo which emerges from collective reading of sections 14 (1) and 41 (e) ::: Downloaded on - 09/06/2013 19:52:09 ::: 12 fa15.13 and (i) of Specific Relief Act.
28. This court is satisfied that the plaintiff was not entitled for any relief and the suit has been rightly dismissed, and appeal has no merit and the appeal is hereby dismissed with costs.
29. Civil application does not survive and is disposed of.
30. Ad-interim order granted by this court stands vacated.
(A. H. JOSHI, J.) ::: Downloaded on - 09/06/2013 19:52:09 :::