Delhi District Court
Rajneesh Aggarwal vs . Ddca & Ors. on 19 January, 2013
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Rajneesh Aggarwal Vs. DDCA & Ors.
Suit no. 8/13
19.1.2013
Present : Sh.N.N.Aggarwal with Ms. Jaya Goel, Advocates for the plaintiff.
1.Arguments heard on application Under Order 39 rule 1 & 2 CPC as also an application Under Order 26 Rule 9 CPC. The present suit for injunction and declaration has been filed seeking declaration of election of defendant no.4 to 9 to the posts of Office Bearers/Members of the Executive Committee of defendant no.1, held on 21.12.2012, as Null & Void. Plaintiff also seeks a decree of permanent injunction restraining these defendants no.4 to 9 from acting or discharging any function as members of the executive committee of the defendant no.1.
2. These defendants no.4 to 9 were declared elected in the Annual General Meeting of the defendant no.1 held on 21.12.2012. The defendant no.1 is claimed to be a company licensed Under Section 25 of Indian Companies Act, 1956 and governed by the terms & conditions laid down in the Memorandum & Articles of Association of the company. The Executive Committee of defendant no.1 consists of total 27 members including the President, Vice Presidents, Honorary General Secretary, Honorary Sports Secretary, Honorary Club Secretary, Honorary Treasurer, Joint Secretaries and Eleven other members.
3. Vide public notice dated 27.11.2012, issued on behalf of defendant no.1, it was notified that AGM of defendant no.1 would be conducted on 21.12.2012. One of the agenda of the meeting was to elect 16 members of the Executive Committee including eight Joint Secretaries. From amongst the joint secretaries, two were for Sports Category, two for Club Category, two for accounts category and two for company affairs.
-2-4. In accordance with Article 37 of the Articles of the Association, proxy voting was permissible at the AGM, if it was in writing and signed by the appointer in the prescribed form. The time fixed for proxy voting was 12 noon to 1 PM. It was to follow the personal voting for which time was fixed as 10.00 AM to 12 Noon. It is the claimed by the plaintiffs that the personal voting was not stopped at 12 PM but it continued up to 12.45 PM and thereafter, 15 minutes were consumed in removing the name of those proxies who had personally casted their votes. Thereby meaning that proxy voting commenced at 1.00 PM instead of 12 PM. According to the time slot alloted, it was to continue for one hour but it was abruptly stopped at 1.25 PM. Plaintiff no.1 who was having 102 proxies initially but after deducting personal voting of three members was left with 99 proxies was not allowed to vote at about 1.20 to 1.25 PM. It is claimed that on account of the plaintiff no.1 being deprived of his right to cast vote on behalf of 99 valid proxies which the plaintiff no.1 was holding from eligible members of the defendant no.1 and which were validly deposited 48 hours before AGM, vitiates the entire election process qua defendant no. 4 to 9.
5. I have been shown a CCTV footage recording of the said election process which was obtained by the plaintiffs from the defendant no.1 vide an application dated 21.12.2012 i.e. the date of election and vide a letter of the defendant no.1 dated 28.12.2012. In the said CCTV footage, indeed one can see commotion taking place at the time when the plaintiff asked for ballot paper. As a result of commotion, the returning officer and the Chief Election Officer are clearly seen leaving their respective desks and moving out of the room where ballot was being casted, leaving behind the documents as it is which can be seen lying on the desks. During the commotion period, certain persons were continuing casting their ballots -3- which can be seen from the CCTV footage towards the back side of the people raising commotion.
6. In such circumstances, the plaintiffs have prayed that the defendants no. 4 to 9 be restrained from acting or discharging any function as members of the executive committee of the defendant no.1 pursuant to their election in the said AGM. Apprehension is shown that they may interpolate, manipulate or destroy the records of defendant no.1 for defeating the rights of the plaintiff. I am also taken through the Clause no. 44 of Memorandum & Articles of Association of defendant no.1 which shows that seven members of the Executive committee are only required to form the minimum quorum for the meeting of the Executive Committee. For working committee the minimum quorum is four members personally present. I am also taken through the result declared pertaining to defendants no.4 to 9. If the 99 proxies were valid in favour of the plaintiff no.1, indeed the result of election would materially change.
7. Counsel for plaintiffs has relied upon the Berar Trading Company Ltd. Vs. Gajanan Gopalrao Dixit (1972) 42 CompCas48 (Bom); Jaideep Halwasiya Vs. Rasoi Ltd. (2009) 2 CALLT 449 (HC); Sudhansu Sekhar Ghosh vs. Satyaendra Nath Basu and others 4 ELR 73 (dated February 7, 1953); Kandasami Kandar vs. Subramania Goundar and others 5 ELR 156 (dated March 23, 1953); Balchand Vs. Laxminarain Mateh 8 ELR 465 (dated November 10, 1953); Amar Pal Singh vs. Chief Election Commission of India 1993 (50) DLT 643; Ram Sevak Yadav vs. Hussain Kamil Kidwai AIR 1964 SC 1249.
8. In case ex-parte injunction is granted, the business of defendant no.1 will not be stopped, since it can be carried out with other members as the minimum required quorum is only seven. The CCTV footage indeed reveals -4- a prima facie case in favour of the plaintiffs. Balance of convenience also lies in favour of plaintiffs. In case the defendant no. 4 to 9 are not immediately injuncted, there is likelihood of destruction of important and material records & documents. Accordingly, the defendant no. 4 to 9 are restrained from discharging any function as members of the Executive Committee/Office bearers of the defendant no.1 pursuant to their election in the AGM held on 21.12.2012 till the next date of hearing.
9. It is also necessary in the facts & circumstances of this case that a Local Commissioner be appointed to visit the Office of the defendant no.1 and to seize and take into custody the entire CCTV footage of 21.12.2012 pertaining to area where the AGM/election took place. Sh. Ranjan Kumar, Advocate having Office at DA-4, Dua Business Centre, Vikas Marg, Shakarpur, Delhi-92 having phone no. 9810941533 is appointed as a Local Commissioner to visit the office of defendant no.1 and take into possession a copy of the CCTV footage if it is not practicable to seize the original hard drive. In case the original hard drive containing the CCTV footage can be conveniently seized, the same may be seized but care may be taken that the further working of the CCTV network be not affected due to seizure of original hard drive. In that eventuality, only its copy be obtained and in that eventuality, the Chief Administrator of the defendant no.1 will preserve the original footage in the original hard drive till further orders from this court. In such circumstances, the Chief Administrator of defendant no.1 will provide one authenticated copy of the CCTV footage to the Local Commissioner which shall be duly sealed in presence of the Chief Administrator of the defendant no.1 and in presence of the Local Commissioner, by the Local Commissioner himself signed by both of them on the CD/DVD as well as the envelope containing the said CD/DVD. The -5- Chief Administrator of the defendant no.1 is also directed to preserve complete CCTV footage of 21.12.2012, till further orders from this court.
10. The Local Commissioner shall also visit the defendant no.2 and take into possession the entire record of election including the records of nominations, list of voters, list of valid proxies, polling, counting, result of the election after preparing its inventory so far as practicable. The records be sealed in presence of defendant no.2 duly signed by defendant no.2 and the Local Commissioner and the same be brought and deposited in the court.
11. The fee of the Local Commissioner is fixed as Rs.15,000/- (Fifteen Thousand only) which shall be paid to him by the two plaintiffs proportionately. Local Commissioner to issue receipt of the amount to the plaintiffs.
12. Ld. counsel for the plaintiff during arguments mentioned that for the time being the defendant no.3 be deleted from the array of defendants. Defendant no. 3 is deleted from the array of defendants. Amended memo of parties be filed. Provisions of Order 39 CPC Rule 3 CPC be complied with by the plaintiff.
13. Copy of this order be issued dasti to the plaintiffs including the copy to the Local Commissioner.
14. Issue summons for settlement of issues and notice of application Under Order 39 rule 1 & 2 CPC to all the defendants except defendant no. 3 who has been deleted from the array of defendants on PF/RC- AD/Speed Post/Courier(DTDC) returnable on 29.1.2013.
Dig Vinay Singh ADJ-04 / Central Delhi / 19.01.2013