Madras High Court
Mr.Narasa Reddy Kondlapudi vs The Andhra Social & Cultural ... on 4 April, 2018
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 20.07.2018
DELIVERED ON: 24.07.2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.758 of 2015, C.S.No.278 of 2017 & Tr.C.S.No.170 of 2018
A.Nos.8391 of 2017 & 2543 of 2018,
O.A.Nos.392 & 393 of 2017
O.A.Nos.271, 272, 273 of 2018 & A.No.2536 of 2018
C.S.No.758 of 2015
Mr.Narasa Reddy Kondlapudi ... Plaintiff
Vs.
1. The Andhra Social & Cultural Association,
Represented by its Hon.Secretary,
No.22, Vijayaraghava Road,
T.Nagar, Chennai 600 017
2. Mr.M.S.Moorthy
3. Mr.A.K.Subba Reddy .. Defendants
(second and third defendants are impleaded as per Order of this Court in A.No.1457 of 2018 dated 04.04.2018)
Civil Suit filed under Order XXIV Rule 2, Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 of C.P.C. for the following reliefs :
a) for a declaration to declare that the notice dated 04.05.2015 calling for convening of Extraordinary General Body Meeting and the resolution alleged to have been passed in the Extraordinary General Body Meeting as null and void;
b) for a declaration to declare that the termination letter dated 17.08.2015 alleged to have been issued in furtherance to the resolutions passed in the Extraordinary General Body Meeting dated 07.05.2015 as null and void;
c) for a declaration to declare that the resolutions alleged to have been passed in the Extraordinary General Body Meeting held on 07.06.2015 resolving to permanently remove the parent members and the members who were admitted under Children's Quota alleging irregularities as null and void;
d) for a permanent injunction restraining the defendants and their men from in any manner whatsoever in implementing the resolutions purported to have been passed in the meeting held on 07.06.2015;
e) for a permanent injunction restraining the defendants and their men from in any manner whatsoever in implementing the membership termination of the plaintiff and thereby preventing the plaintiff from using the club facilities in the defendant's association.
f) for costs
For plaintiff : Mr.Jeevarathinam, Sr. Counsel
for Mr.P.Sukumar
For Defendants : Mr.G.RM.Palaniappan D1
Mr.Kuberan
for Rank Associates D3
No appearance - D2
C.S.No.170 of 2018
1. Mr.K.N.V.Prasad Reddy
2. Mr.C.Lakshmi Krishna Prasad ... Plaintiffs
Vs.
1. The Andhra Social & Cultural Association,
Represented by its Hon.Secretary,
No.22, Vijayaraghava Road,
T.Nagar, Chennai 600 017
2. Dr.K.Subba Reddy .. Defendants
(second defendant has been impleaded as per Order of this Court in A.No.169 of 2018 dated 04.04.2018)
Civil Suit filed under Order XXIV Rule 2, Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 of C.P.C. for the following reliefs :
a) for a declaration to declare that the notice dated 14.10.2016 calling for convening of Annual General Body Meeting and the resolutions alleged to have been passed in the Annual General Body Meeting as null and void;
b) for a permanent injunction restraining the defendants and their men from in any manner, whatsoever in furtherance of the meeting conducted pursuant to the notice dated 14.10.2016 and the resolutions purported to have been passed in the meeting on 13.11.2016;
c) for a declaration to declare that the resolution alleged to have been passed in the meeting on 13.11.2016 resolving to regularize the membership of members admitted under Children's Quota by collection a sum of Rs.1,50,000/- plus applicable service taxes in respect of members, who have already been admitted and using the facility as null and void;
d) for a permanent injunction restraining the defendants and their men from in any manner whatsoever interfering with the right of the plaintiffs to utilize the facilities of the club as a Member;
f) for costs
For plaintiffs : Mr.V.Anilkumar
For Defendants : Mr.G.RM.Palaniappan D1
Mr.Kuberan
for Rank Associates D2
Tr.C.S.No.270 of 2017
Mr.Seshadri.S ... Plaintiff
Vs.
1. Andhra Social & Cultural Association,
No.22, Vijayaraghava Road,
T.Nagar, Chennai 600 017
Rep. By its Hony. Secretrary
2. Mr.B.Sridhar Reddy .. Defendants
(second defendant has impleaded as per Order of this Court in A.No.2535 of 2018 dated 04.04.2018)
Civil Suit filed under Order XXIV Rule 2, Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 of C.P.C. for the following reliefs :
a) for a declaration to declare that the resolution covered by Agenda No.7 published in the 65th Annual Report of 2016-17 dated 29.09.2017 published by defendant club seeking to pardon the persons who were involved in huge fraud as against the defendant club is illegal and opposed to the constitution and objects of the defendant club;
b) for a mandatory injunction directing the defendant club to conduct fair and transparent disciplinary proceedings against the members of the club in introducing third parties as their son/son-in-law by producing fake documents for the purpose of gaining concessional membership and tereby causing huge monetary loss to the defendant club, as per the Byelaws of the defendant club within a time to be stipulated by this Court and conduct the Annual General Body Meeting in a fair manner under the supervision of this Court;
c) for a permanent injunction restraining the defendant club from permitting any of the members against whom disciplinary proceedings were initiated for the fraud of introducing fake members in t he members children quota for participating as nominee, voting in the forthcoming election for the term 2017-2019;
f) for costs
For plaintiff : Mr.S.Thankasivan
For Defendants : Mr.G.RM.Palaniappan D1
Mr.Krishnaprasad
for Sarvabhauman Associates D2
C O M M O N J U D G M E N T
The suit in C.S.No.758 of 2015 has been filed for declaration that the notice dated 04.05.2015 calling for convening of the Extraordinary General Body Meeting and the resolution alleged to have been passed in the Extraordinary General Body Meeting as null and void.
2. The Suit in C.S.No.278 of 2017 has been filed to declare that the notice dated 14.10.2016 calling for convening of Annual General Body Meeting and the resolutions alleged to have been passed in the Annual General Body Meeting as null and void;
3. The suit in Tr.C.S.No.170 of 2018 has been filed for declaring that the resolution covered by Agenda No.7 published in the 65th Annual Report of 2016-17 dated 29.09.2017 published by defendant club seeking to pardon the persons who were involved in huge fraud as against the defendant club is illegal and opposed to the constitution and objections of the defendant club.
4. Though there are three suits, all the three suits are connected with affairs of the Andhra Social and Cultural Association. In C.S.No.758 of 2015, an application in A.No.8391 of 2017 has been taken by the club namely Andhra Social and Cultural Association for appointing a former Judge of the High Court to conduct Extraordinary General Body Meeting for arriving at a final decision on the action to be taken against the persons involved in inducting the third parties as members under the children quota by adopting secret ballot system.
5. The main issue involved in all the suits is pertaining to induction of certain new members by the existing members as their son or son-in-law category, though, the inducted persons are neither son nor son-in-law of the existing members. The suit in C.S.758 of 2015 came to be filed challenging the action of the club in convening Extraordinary General Body Meeting and also setting aside the resolution and termination of the members inducted into the Andhra Social and Cultural Association as the son or son-in-law of the existing members. In fact, the Extraordinary General Body Meeting held on 07.06.2015 is said to have resolved to remove the parent member and the members who have been inducted under the children quota and that was challenged in the above suit. The relief sought in C.S.No.278 of 2017 is to declare the resolution alleged to have been passed on 13.11.2016 relating to the members admitted in Children quota by collecting a sum of Rs.1,50,000/-. Similarly, the suit in Tr.C.S.No.170 of 2018 has been filed challenging the resolution passed on 29.09.2017 seeking to pardon the persons who are involved in huge fraud and also for mandatory injunction directing the club to conduct fair and transparent disciplinary proceedings against the members of the club in introducing the third parties are their son/son-in-law by producing fake documents.
6. From all the suits, this Court can gather the following facts :
Certain members, i.e., 45 existing members of the club have inducted 89 third parties as members to club under the children quota, which was objected in Extraordinary General Body Meeting in the 2015 itself and resolution has also been passed removing the parent members and the members who were inducted under the children quota. Thereafter, it appears that on 13.11.2016 a resolution is said to have been passed to regularize the members by collecting a sum of Rs.1,50,000/- and agenda in respect of the Annual Report for year 2016 dated 28.09.2017.
7. As per the admitted facts, 89 members were, in fact inducted under the children quota under Bye-law 5 n. It is relevant to extract byelaw 5 n which reads as follows 5(n) Admission of Member's relatives :
Member's children son or son-in-law (one only) will be admitted to the Membership of A.S.C.A. subject to approval of the Management Committee and upon payment of 1/3 of the Membership fees prevailing at the time of admission. Though bye-law 5 deals with induction of members, the bye law extracted above gives special privilege to the existing members to induct their son or son-in-law (one only) upon payment of 1/3rd of the membership fees prevailing at the time of admission. It is to be noted that the existing members around 45 people have inducted various third parties under the above category as that of their son or son-inlaw. The typed set filed by the club clearly establishes the above fact. This fact is not disputed by the other side.
8. In this regard one Fact Finding Committee also gave a report on 05.06.2017 and the Fact Finding Committee recommended the following :
(i) To Remove both parent as well as beneficiary and initiate appropriate actions on those members who have conspired to misuse the aforementioned facility.
(ii) To suspend for 5 years, the proposer, Seconder and Members of the scrutinizing committee, President and Secretary who were responsible for approving the above false applications and also to remove both parents and beneficiary from the Membership of ASCA.
(iii) To regularize the erring members by collecting the differential Admission Fee from the beneficiaries as per the Prevailing admission fee structure or any other proposal from EGM and debar them from Contesting to the post of Office bearers/Trustees to ASCA for a period of 6 years commencing from ensuing AGM.
(iv) To consider any other valuable and fair action proposal deemed fit by the Members of the ASCA EGM in the long Term interest of our Association. These facts are also not in dispute. But the above recommendation has not been implemented. When that being the position, the Extraordinary General Body Meeting has been convened in the year 2015, i.e., on 07.05.2015 which passed the resolution for termination of the said members. The above resolution has been challenged in the suit in C.S.No.758 of 2015.
10. In the above said suit in O.A.No.1001 of 2015 and A.6210 of 2015 were filed. In the above applications a common Order was passed by this Court on 22.09.2015. In pare 24 of the Order, this Court holding that when there is no specific agenda for removal of membership of the members from the respondents association and if the members were previously not informed regarding the subjects to be discussed in the meeting, the decision taken without any notice/agenda for removal of members is not maintainable. Only on the technical ground this Court had held that removal of such members is not according to law. Whereas this Court has also noted the factual aspects in the above Order. This Court by holding that as there was no 2/3 majority of the members are present in the meeting, the removal is not according to law and held that the resolution is not enforceable. In fact the same relief has been sought in the suit. After such Order, now it appears that there was an Extraordinary General Body Meeting which sought to regularize those members illegally inducted.
11. The main contention of the counsel who filed the suit challenging the subsequent resolution has contended that for the so called meeting, meeting committee has not circulated the agenda. The resolution dated 29.09.2017 was fraudulently passed and the agenda has not been circulated in the Annual Report published later. Hence, it is the main contention of the counsel Mr.Thankasivan, appearing for the plaintiff in suit in Tr.C.S.No.170 of 2018, unless the very Extraordinary General Body Meeting is conducted to decide the issue as to whether those members who have been inducted illegally have to be removed or regularized, there cannot be any election with those members. Hence, the main contention of the learned Counsel Mr.Thankasivam is that Judge Commissioner may be appointed to call for Extraordinary General Body Meeting to decide the specific agenda which relate to the members who have been inducted against the bye-laws and also further course of action against the parent members and to conduct election. The counsel appearing for the club also submitted that Extraordinary General Body Meeting may convened and election may be conducted by the Judge Commissioner appointed by this Court.
12. The learned counsel appearing for the plaintiff in the suit in C.S.No.758 of 2015 would submit that though the resolution was passed in the year 2015 for removing the members who were inducted, the resolution was set aside by the Order of this Court and no appeal has been filed and now they cannot be removed. Further, in the subsequent resolution they have been regularized and therefore, they also have right to vote and to contest the election. Hence, opposed the contention of the learned counsel Mr.Thankasivam, in this regard. The counsel appearing for the impleading party also submitted that the purpose of filing the suit is only to stall the elections.
13. I have perused the entire records available on record. The entire issue revolves around the induction of the third parties as son or son-in-law of the existing members. The bye-law of the society deals with enrolment of the members. Any person who desire to be a member of the Andhra Social and Cultural Association, they will be enrolled as a member only as per the bye-laws. As already stated the bye-law 5 (n) special privilege is given to the existing members to induct their son or son-in-law (one only) at a concession rate of 1/3rd of the membership fees, thereby giving 2/3 fees waiver. But the fact remains that taking advantage of the clause 5(n) which provides induction of son or son-in-law of the membership of the existing members, several third parties were inducted as members by the existing members as that of their son or son-in-law, which is totally contrary to the bye-laws and infact such induction into the membership is against the very bye-laws. The person who has become a member illegally in a back door method cannot be called as members legally inducted into the club till their membership is regularised by Extraordinary General Body Meeting or by way of amended bye-laws.
14. On a careful perusal of the bye-laws, there is no such provision, whatsoever, available to regularize the members who had come through back door. Therefore when their membership is against the very bye-laws of the society, I am of the view that such members cannot have any right to object any action taken either against them or the parent member who had fraudulently misrepresented them as their son or son-in-law. It is also informed that there are more than 2000 members in the Association. That being the position, merely because the earlier resolution was set aside by this Court on the technical ground that the agenda is not circulated and there was no 2/3rd majority at the time of passing such resolution removing members, such finding would not legalise the membership of the persons, who have become members in utter violation of the very bye-laws of the society.
15. Similarly, the subsequent resolution is also said to have been taken place in the year 2016 to regularize those persons. It is to be noted that such resolution is also passed when the majority of the members entered through back door were holding the affairs of the society. Such being the position, the main ground assailing subsequent resolution before this Court is that the agenda for passing such a resolution was not circulated to all the members and such resolution is also not published in subsequent Annual Report. The resolution said to have been passed on 13.11.2016 was first known on 29.09.2017 as can be seen in the above resolution filed in the typed set and in the subsequent Annual Report also, this Agenda is found missing. All these facts clearly indicate that all is not well and not acted according to law. Therefore, I am of the view that admittedly 89 members were made as members as the son or son-in-law of the existing members. But, in fact they are neither son nor son-in-law of the members. Therefore, when such people become members in utter violation of bye-laws, they cannot have any say in this suit until a proper Extraordinary General Body Meeting is conducted in a proper manner to take a decision as to whether or not to regularize those members. The right of the members who are inducted under the childrens quota will be decided only in Extraordinary General Body Meeting, subject to the majority view of the meeting.
16. In view of all these facts, this Court is of the view that unless a fresh Extraordinary General Body Meeting is called to decide the right above persons, the members who have come through back doors cannot have any say. Their right has to be decided in the Extraordinary General Body Meeting.
17. Accordingly, this Court, in the interest of the entire members of the society, is of the view that a fresh Extraordinary General Body Meeting is absolutely necessary to decide whether or not the third parties, who have become members under the childrens quota to be regularized or removed and whether the existing members who have inducted such members also to be proceeded departmentally or not. These aspects have to be decided only in the Extraordinary General Body Meeting. If those aspects have been resolved by holding Extraordinary General Body Meeting in a proper manner, then nothing survives in these suits.
18. To achieve the above purpose, this Court appoints Honourable Mr. Justice K.P.Sivasubramanian, (retired Judge of this Court), to conduct Extraordinary General Body Meeting for the Andhra Social and Cultural Association and thereafter, conduct election for the said Association. It is ordered as follows :
i. That the Honourable Mr. Justice K.P.Sivasubramanian (Retired Judge, High Court, Madras) residing at No.47, Pulla Avenue, Chennai 600 030, Mobile No.9444701312, be and is hereby appointed as Judge Commissioner.
ii. That the Judge Commissioner appointed herein shall call for Extraordinary General Body Meeting of the members of the Club for arriving at a final decision as to the action to be taken against the members who are involved in inducting third parties as members under the childrens quota by secret ballot system within a period of three months from the date of this Order.
iii. Immediately after such meeting is conducted as per the bye-laws, the Judge Commissioner also shall hold election for the club strictly as per the bye-laws for the period 2017-2019. All the above expenses shall be borne by the club.
iv. The Judge Commissioner shall be paid a sum of Rs.2,00,000/- (Rupees two lakhs only) as initial remuneration.
v. To achieve the purpose of conducting Extraordinary General Body Meeting and also for holding elections, the Judge Commissioner is at liberty to take assistance of the lawyer or lawyers of his choice and the remuneration and expenses for such services shall also be borne by the Club.
vi.The Judge Commissioner at the time of filing final report is also entitled to seek for additional remuneration.
vii. It is also made clear that the Extraordinary General Body Meeting shall be conducted by following secret ballot system and any objections with regard to the meeting and the election, the decision of the Judge Commissioner is final.
19. In view of the above Order, all the three suits are disposed of. Consequently, the connected applications are closed.
24.07.2018 vrc Note : Issue Copy on 25.07.2018 The registry is directed to communicate a copy of this Order to the Honourable Mr.Justice K.P.Sivasubramanian (Retired), No.47, Pulla Avenue, Chennai 600 030, Mobile No.9444701312, immediately.
N.SATHISH KUMAR, J.
vrc Common Judgment in C.S.No.758 of 2015, C.S.No.278 of 2017 & Tr.C.S.No.170 of 2018 24.07.2018