Delhi District Court
Delhi Mahila Samaj Trust Regd vs Mrs. Rumma S. Sunder on 26 July, 2022
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IN THE COURT OF SH. NAROTTAM KAUSHAL
PRINCIPAL DISTIRCT & SESSIONS JUDGE (SOUTH)
SAKET COURTS, NEW DELHI
CS No. 8998/16
CNR No. DLST01-004469-2016
AMENDED MEMO OF PARTIES
1. DELHI MAHILA SAMAJ Trust REGD.
52, Tughlaquabad Institutional Area
Mehrauli-Badarpur Road, New Delhi
Through:
Mrs. Renu Talwani, Trustee
E-571, Greater Kailas - II
New Delhi
2. MRS. RENU TALWANI
E-571, Greater Kailash - II
New Delhi
...PLAINTIFFS
VERSUS
MRS. RUMMA S. SUNDER
D-3/3075, Vasant Kunj
New Delhi - 110 070
... DEFENDANT
CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 1 of 79
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OLD MEMO OF PARTIES
1. DELHI MAHILA SAMAJ TRUST (REGD.)
52, Tughlaquabad Institutional Area
Mehrauli-Badarpur Road, New Delhi
Through:
Managing Trustee
Ms. Devyani Sircar (EXPIRED ON 21.12.2017)
2. SMT. ZAKIA SULTANA
A Trustee of Delhi Mahila Samaj Trust (Regd.)
52, Tughlaquabad Institutional Area
Mehrauli-Badarpur Road,
New Delhi (EXPIRED ON 10.10.2007)
3. MS. RENU TALWANI
A Trustee of Delhi Mahila Samaj Trust (Regd.)
52, Tughlaquabad Institutional Area
Mehrauli-Badarpur Road, New Delhi
...PLAINTIFFS
VERSUS
1. MRS. RUMMA S. SUNDER
D-3/3075, Vasant Kunj
New Delhi - 110 070
Also at:
C/o Ms. Arati Roy
C-28, Sujan Singh Park, New Delhi - 110 003
CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 2 of 79
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2. ING VYSYA BANK LIMITED
Through its Branch Manager
S-214, Panchsheel Park Branch
New Delhi (DROPPED ON 06.05.2017)
...DEFENDANTS
Date of Institution : 27.04.2006
Arguments concluded on : 08.07.2022
Date of Order : 26.07.2022
Argued by: Sh. Ramesh Kumar Mishra, Counsel for plaintiffs.
Sh. R.Krishnamorthy, Counsel for defendant.
JUDGMENT
26.07.2022
1. Plaintiffs who are Trustees of the Public Charitable Trust insituted the present suit against one of the expelled Trustees; seeking to restrain the expelled Trustee from holding herself out as Chairperson of the plaintiff Trust and also seeking to restrain the expelled Trustee from interfering in the functioning of the Trust and for rendition of accounts and consequential realisation of Trust fund and property misappropriated by the said defendant.
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2.1 It was pleaded that plaintiff no. 1 a public charitble Trust under the aeges of Delhi Mahila Samaj, a Society registered under Societies Registration Act, was constituted on 29.06.1959. Delhi Mahila Samaj, a society established to bring social and economic reconstruction of society to provide greater opportunity to women and to improve their economic status, had constituted the plaintiff no. 1 Trust.
2.2 On 12.05.1967, a Trust Deed was executed whereby, Delhi Mahila Samaj entrusted a buiding situated at Barha Bazar, Kashmiri Gate, bearing no. 1064 to 1069 to aforementioned Trust with a view to effectively use the building and income which may accrue therefrom or from any other immovable property which may be acquired by the Trust in future to be used for advancement of purposes of Samaj as contained in Memorandum of Association. Clause-10 of the Trust Deed provided that the Trustees shall have power to fill any vacancy in the Board of Trust caused by death, resignation or incapacity of any Trustee to perform his/ her duties. Clause-12 of the Trust Deed provided that the Trustees shall frame rules for administration of affairs of the Trust and rules shall be consistent with the provisions contained in the Trust Deed.
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2.3 Around the year 1982, DDA alloted Delhi Mahila Samaj Trust, a plot of land measuring 1500 sq. yards bearing no. 52, Tughlakabad Institutional Area. The Trust thereafter, shifted its office from Kashmiri Gate to Tughlakabad plot. On 24.02.1995, the Trust framed its rules & regulations laying down its aims & objects. The aims & objects inter alia include social and economic reconstruction of society to provide greater opportunity to women, to improve economic status of women by giving them vocational training etc. Rule 2 provides that maximum number of Trustees at any time, shall not be more than 5 and the minimum number shall be 2 and they shall be designated as Board of Trustees. Rule 5 provides that the Trustees may designate one of the Trustees as Managing Trustee and may fix powers & duties of such person. Rule 7 provides that Managing Trustee shall be for such time and shall exercise such powers of management, as may be entrusted to such person by the Board of Trustees. The Board may change such a person and may appoint other one by Board Resolution at any time. Rule 9 provides that if a Trustee is working against the Trust, the remaining Trustees with majority of two-third votes may by a resolution, remove her after giving her notice.CS No. 8998/16
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2.4 The plaintiff Trust runs a working women hostel for 40 inmates, Memobai Bhawan for destitute women for 12 inmates (presently being used as working women hostel), charitable medical clinic for nearby slums, Computer centre at head office and also, an Institute for secretarial practice. The Trust at the time of instituting the suit was receiving rent from IGNOU at the rate of Rs.2.20 lacs per month, from Hutchinson at the rate of Rs.22,000/- per month and from Reliance at the rate of Rs.22,000/- per month.
2.5 In the year 2000-01, defendant no. 1 Rumma S. Sunder joined the Trust as a Trustee along with Ms. Devyani Sircar, who was the Managing Trustee at the time of institution of the suit. In June, 2004, plaintiff no. 1 Renu Talwani joined as another Trustee; in January, 2005, three of the initial plaintiffs, Zakia Sultana, Renu Talwani and Devyani Sircar, defendant no. 1 and one Dr. S.V. Saluja were the five Trustees.
2.6 On 01.03.2005, defendant no. 1 Rumma S. Sunder assumed Chairpersonship of the Trust by falsely minuting consent of two of the Trustess, namely, Zakia Sultana and Renu CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 6 of 79 :: 7 ::
Talwani. She allegedly recorded their consent as having been received telephonically.
2.7 Subsequently, plaintiffs found that during the period when defendant no. 1 assumed the responsibility of Chairperson of the Trust, she had taken unilateral decision without the approval of other Trustees, like renting out the part premises, appointing two girls as librarians when none was required, making a male staff member as Hostel In-charge for women inmates and passing her own expenses bills and misusing the Trust funds to benefit certain individuals etc. 2.8 In a meeting held on 25.10.2005, all the five Trustees were present. During the meeting when the issue of mismanagement and misuse of Trust funds by defendant no. 1 was raised by the plaintiffs, defendant no. 1 walked out of the meeting. Thereafter, all the remaining four Trustees, convened a special meeting and unanimously passed a resolution appointing Ms. Zakia Sultana as the Chairperson. A formal notice was issued for 10.11.2005, to all Trustees, to hold a meeting to confirm the appointment of Zakia Sultana as Chairperson. In the meeting held on 11.11.2005 attended by all the five Trustees, resolution was passed CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 7 of 79 :: 8 ::
confirming appointment of Zakia Sultana as Chairperson and removal of defendant no. 1 as Chairperson.
2.9 Plaintiffs have further pleaded about misuse of the Trust funds by defendant no. 1. Instances of raising of expenses for use of the Trust owned car and also salary of the driver has been pleaded. Defendant no. 1's refusal to return the keys, documents and vehicle of the Trust, has been pleaded. Directions by defendant no. 1 to the bankers of the Trust, namely, Oriental Bank of Commerce and Bank of India to stop operation of bank account, has also been pleaded. It is next pleaded that defendant no. 1 directed warden of the Trust to stop depositing money received by the Trust in bank and also to stop giving any money to accountant of the Trust. All original FDRs of Bank of India, Saket Branch were found to be missing and it transpired that warden of the Trust had removed the same at the instance of defendant no. 1. Subsequently, by creating false records, defendant no. 1 on Eid Holiday convened a meeting and inducted two new Trustees and removed some Trustees from the Board of Trust and also, opened a new bank account to encash FDRs and deposit the same in new bank account.CS No. 8998/16
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2.10 In view of the mismanagement and illegal activities of defendant no. 1, a show cause notice was issued to her for her removal from Trust in accordance with Rule 9 of Trust rules. A special meeting was convened on 08.12.2005 to consider removal of defendant no. 1 as Trustee and finally, in the meeting attended by three of the Trustess, defendant no. 1 was expelled as per Rules & Regulations of the Trust, from being a Trustee.
Despite her removal from being a Trustee, she declined to retun the Trust property and other material of the Trust.
2.11 It is next pleaded that around December, 2005 despite having been removed as a Trustee, defendant no. 1 opened another acocunt in the name of Trust in ING Vysya Bank, Panchsheel Branch. Para-4 of the plaint tabulates the misconduct of defendant no. 1 as Chairperson of the Trust;
(i) that despite being removed as a Trustee, defendant no. 1 holds herself as Chairperson of the Trust and interferes in the functioning thereof, and further misuse the funds of the Trust for her own purposes. Defendant no. 1 is not allowing the plaintiffs to enter the premises of the Trust and is in possession of all documents of the Trust.
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(ii) she approached Oriental Bank of Commerce and Bank of India to freeze the account of Delhi Mahila Samaj Trust and also approached Punjab National Bank to open a new account of Trust introducing herself as Chairperson of Trust.
(iii) she is found to be indulging in unauthorised acts and financial irregularities and was therefore, removed as Chairperson and expelled from Board of Trustees.
(iv) in spite of removal as Trustee, she continues to possess properties of Trust and siphoning off the funds, harassing the staff; stopping the plaintiff from entering Trust office.
(v) opened an account with ING Vysya Bank in the name of Trust by misrepresentation and concealing her removal as Trustee.CS No. 8998/16
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(vi) illegally taking over control and management and affairs of the Trust
(vii) misuse of the funds by creating false records of the salary of her driver, giving loan to her former domestic servant.
(viii) renting out part of premises to M/s Reliance without the approval of the Board, appointment of a male person, namely, Rajesh Priyadarshi as hostel in-charge of women inmates.
(ix) appointment of two Trustees, namely, Cynthia Masih and Raj Kumari Kubba in violation of Rules & Regulations of the Trust, generally fabricating documents and misappropriation of Trust funds and misuing the Trust properties for her own purposes.
3. For the aforesaid misconduct of defendant no. 1, it has been prayed inter alia that defendant no. 1 be directed to deliver possession of Trust properties to Trust, realisation of the Trust CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 11 of 79 :: 12 ::
funds and properties misappropriated by defendant no.1, restraining defendant no. 1 from holding herself out as Chairperson and from interfering in the functioning of the Trust, rendering of true and proper accounts, defreezing the accounts of the Trust with Oriental Bank of Commerce and Bank of India, restraining the defendant no. 1 from creating new bank account of Trust and stop operation of current account of the Panchsheel Branch of ING Vysya Bank. Appointment of two of the Trustees, namely, Cynthia Masih and Raj Kumari Kubba was also sought to be declared as unauthorised and illegal.
4.1 Contesting the plaint, defendant no. 1 filed her written statement raising preliminary objection that the suit was bad for non-joinder of necessary parties. Ms. Cynthia and Dr. Raj Kumari Kubba sought to be removed from the Board of Trust, were not impleaded as defendants. Dr. S.V. Saluja was also pleaded not to have been made a party. Authority in Ms. Devyani Sircar to file suit on behalf of Delhi Mahila Samaj Trust was also objected to. Defendant no. 1 pleaded her own version of facts describing her past achievements and that she had been made a permanent Chairperson of the Trust on the death of previous Chairperson, namely, Ms. Nirmala Malhotra. It has also been CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 12 of 79 :: 13 ::
pleaded that plaintiffs were not interested, involved or devoted to the functioning of the Trust, as Devyani Sircar had been living in Jaipur whereas, plaintiff no. 2 Zakia Sultana being very old mostly remained in Dubai. Plaintiff no. 3 attended merely 3 meetings in the year 2005. Meeting dated 25.10.2005 wherein, defendant no. 3 was allegedly removed as Chairperson, is pleaded to have been illegally convened. Even the signatures of Dr. Saluja thereon, are stated to be missing. Removal of defendant no. 1 from the Trust on 16.12.2005 is also stated to be false, as she continues working as Trustee and its Chairperson.
4.2 Responding to the para-wise assertions in the plaint, contents thereof have been denied and disputed. Her appointment as acting Chairperson is asserted to be as per procedure. Decision to take M/s Reliance as tenants, is pleaded to have taken place in meeting dated 23.06.2005, attended by plaintiff no. 2.
appointment of male staff member as hostel in-charge is denied. Conduct of meeting dated 25.10.2005 as pleaded in the plaint is denied and it is disputed that defendant no. 1 got agitated or walked out of the meeting. It is also denied that a special meeting was convened appointing Dr. Zakia Sultana as Chairperson. Raising bills or claiming money by defendant no. 1 for her CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 13 of 79 :: 14 ::
travelling has been explained to be on account of manifold rise in petrol prices. It is pleaded that she claimed money only against proper bills, authenticity of which was never doubted or questioned. Issuance of notice dated 21.11.2005 by Zakia Sultana in her capacity as Chairperson, is disputed to be without any authority.
4.3 It is pleaded that she had convened the meeting of employees of the Trust to explain that certain Trustees were trying to disrupt the functioning of the Trust. Instructions to the banks to stop further transactions from the accounts has been admitted and explained to be for protecting the interest of the Trust. Defreezing of accounts has also been admitted and explained for the same reason. It is pleaded that Devyani Sircar tried to siphon off the funds of the Trust FDRs which are stated to be still in possession of the defendant no. 1. Allegations of the same being removed from almirah or misappropriated is denied.
Removal of the defendant no. 1 on 16.12.2005 as a Trustee or convening and issuing of notices prior thereto, is disputed and denied to be as per rules & regulations of the Trust.
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4.4 It is pleaded that in a meeting prior thereto on 28.11.2005, Devyani Sircar, Zakia Sultana and Renu Talwani stood expelled from the Trust for their anti-Trust activities. Appointment of Devyani Sircar as Managing Trustee is also disputed and denied.
Appointment of Dr. Rajkumari and Ms. Cynthia Masih as new Trustees is admitted and it is pleaded that notice of the meeting was served upon the plaintiffs, who chose not to appear and thus, appointment was made in their absence. Defendant no. 1 further admitted to freezing of bank account of Oriental Bank of Commerce and opening of new account in Punjab National Bank. However, claimed that the same was done with knowledge, permission, approval and authority of Board of Trust, which included the then existing Trustees. Non-returning of the property of the Trust is admitted. However, it is explained that since the defendant no. 1 was a Trustee, question of returning the property did not arise. Grant of loan to one Gayatri is not disputed. However, it is pleaded that the same was unanimously sanctioned by the Board in its meeting dated 24.11.2005.
4.5 It is pleaded that school fee of children of Gayatri was being paid since 2002 and the same was stopped by Ms. Sircar, which led to difference of opinion and mistrust between the CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 15 of 79 :: 16 ::
defendant no. 1 and Ms. Sircar. Eventually, Ms. Sircar won over Ms. Zakia Sultana and Renu Talwani in order to grab power and functioning of Trust. Appointment of Sh. Rajesh Priyadarshi as hostel in-charge for women inmates is denied. He is pleaded to be working as computer instructor. Smt. Prakash Arora is pleaded to be working as hostel warden w.e.f. 05.11.2004. It is pleaded that answering defendant was victim of fraud at the hands of Ms. Devyani Sircar. The plaint is pleaded to be false and frivolous and prayed to be dismissed.
5. Plaintiff filed replication to written statement of defendant no. 1 explaining that Ms. Cynthia Masih and Ms. Raj Kumar Kubba were not proper and necessary parties, as their appointment was ex-facie, illegal and void ab-initio. Therefore, they were not made party to the suit. Authority of Ms. Devyani Sircar to file the suit is also reiterated, as she was the Managing Trustee. The facts pleaded by defendant no. 1 were denied. It is disputed that she was ever declared as acting Chairperson or that she was delegated important duties during the lifetime of then Chairperson, Smt. Nirmala Malhotra. She was accepted as Chairperson in good faith till other Trustees discovered that she CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 16 of 79 :: 17 ::
was misappropriating Trust funds for her personal use. Contents of remaining paras of written statement have been denied.
6.1 Defendant no. 2 filed its written statement. It explained that the bank account in ING Vysya Bank was opened by defendant no. 1 following due process and there was no illegality in opening the account. Defendant no. 2 was subsequently dropped from the array of defendants vide order dated 06.05.2017.
6.2 After completion of pleadings, plaintiff moved an application seeking to place on record certain additional documents, which were the affidavits of two of the Trustees allegdly inducted by defendant no. 1. Hon'ble High Court of Delhi where the suit was then pending, vide detailed order dated 23.07.2008 inter alia allowed the application under Seciton 92(1) CPC, i.e., leave to file the suit. The documents were taken on record and directions were issued to defendant no. 1 to defreeze the accounts of Trust in Oriental Bank of Commerce.
7. On the pleadings of the parties, following issues were framed vide order dated 09.04.2012.
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1) Whether the prsent suit under Section 92 of the Code of Civil Procedure is maintainable in view of death of plaintiff No. 2 on 10.10.2007? OPD
2) Whether the suit is liable to be dismissed on account of non-joinder of parties namely Ms. Cynthia Masih and Dr. Raj Kumar Kubba? OPD
3) Whether the appointment of defendant No. 1 as Chairperson of the Delhi Mahila Samaj Trust is invalid for any reason? OPP
4) Whether the defendant No. 1 has in any manner abused her position as the Chairperson of the Delhi Mahila Samaj Trust is contended by the plaintiffs in paragraph No. 3(j) to (kk) of the plaint? OPP
5) If the answer to issue No. 4 is in the affirmative, is the defendant No. 1 liable to be removed from the rher position as the Chairperson of the Delhi Mahila Samaj Trust and / or as Trustee of the said Trust? OPP
6) Whether the laitniff Nos. 2 & 3 and Ms. Devyani Sircar have been validly removed as Trustees of the Delhi Mahila Samaj Trust on 28.11.2005? OPD CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 18 of 79 :: 19 ::
7) Whether a Resolution was passed in accordance with the rules and regulations of the Delhi Mahila Samaj Trust by the majority of Trustees to appoint Late Mrs. Zakia Sultana as a Chairperson of the Trust in place of defendant No. 1 in a special meeting convened on 25.10.2005? OPP
8) Whether a resolution was passed by the majority of Trustees in accordane with the rules and regulations of the Delhi Mahila Samaj Trust confirming the appointment of Late Mrs. Zakia Sultana as a Chairperson of the Trust in place of defendant No. 1 on 11.11.2005? OPP
9) Whether the defendant No. 1 was expelled from the Trust in a meeting held by the majoirty of the Trustees on 16.12.2005 in accordan e with the rules and regulation of the Delhi Mahila Samaj Trust? OPP
10) Relief.
8. In order to prove their respective case, parties were permitted to lead evidence. While the evidence was being recorded, suit was transferred from Hon'ble High Court of Delhi to District Court vide order dated 18.01.2016. Plaintiff in support of its examined 5 witnesses. Devyani Sircar appeared as PW-1, CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 19 of 79 :: 20 ::
Renu Talwani as PW-2 to prove the case of the plaintiffs. PW-3 Smt. Prakash Arora was examined and she deposed that she was the warden of the hostel and she deposed about a few instances of misconduct by defendant no. 1. M.K. Gupta (PW-4) was working as an accountant in the plaintiff Trust. He has also supported the case of plaintiffs and deposed about financial irregularities by defendant no. 1. PW-5 is Manager, Bank of India, Saket Branch. He proved the account statement for the period 23.07.2009 to 31.03.2018.
9. Defendant no. 1 in support of her case, examined herself as the sole defence witness.
10.1 It is interesting to notice that though the defendant no. 1 was represented and contesting the suit; it is only one witnesses of the plaintiff, i.e., PW-1, who was cross-examined. No other PW, i.e., PW-2 to PW-5 were cross-examined. Similarly, DW-1 herself did tender her affidavit in examination-in-chief. Thereafter, she appeared on 26.10.2012, 16.11.2017, 16.12.2017, 21.02.2018, 17.03.2018, 07.04.2018 for her cross-examination and, and also on recall, on 07.08.2018 for cross-examination. However, subsequent to 07.08.2018, when her cross-examination CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 20 of 79 :: 21 ::
was deferred for production of accounts of the Trust, she stopped appearing and her examination therefore, remained unconcluded.
10.2 It is further noticed that there are two affidavits of PW-1, both identified as Ex.PW1/A on record towards her examination- in-cheif. It may however be noticed that affidavit dated 26.11.2012 tendered on 24.07.2013 was not found by Joint Registrar to be mentioning the correct exhibit numbers and, therfore, fresh affidavit was directed to be filed, which was got attested on 06.08.2013 and tendered on 03.06.2014. It is therefore, the fresh affidavit dated 06.08.2013, Ex.PW1/A which will be read towards examination-in-chief of PW-1.
10.3 PW-1 was cross-examined on 7 occasions from 03.06.2014 till 23.09.2015. she was exhaustively cross-exaimined during that period. Her cross-examination had not concluded and was deferred. In the meantime, case got transferred to District Court and despite sufficient notice, defendant no. 1 did not enter appearance and did not cross-examine PW-1. Ld. ADJ-03, predecessor of this Court vide order dated 06.06.2017 noted the absence of PW-1 for cross-examination also noted presence of none for defendant no. 1. The court then closed opportunity for CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 21 of 79 :: 22 ::
further cross-examination of PW-1 by order. However, defendant subsequently entered appearance on 21.08.2017, but did not move any applicaton or seek to recall PW-1 for conclusion of her cross-examination. Since the witness had been substantially cross-examined running into 25 pages over 7 occasions, therefore, the evidence cannot be discarded. Moreover, order dated 06.06.2017 having not been sought to be recalled shall be read to have attained finality. Similar is the case with testimony of DW-1, who was also substantially cross-examined and did not appear after 07.08.2018 for her cross-examination. Therefore, her evidence, which was also recorded substantially can be read and an adverse view can be taken on the issue of non-production of records, which she did not produce despite directions.
11.1 In her affidavit, PW-1 Ms. Devyani Sircar has deposed that plaintiff no. 1 is a Trust found as Public Charitable Trust under the aeges of Delhi Mahila Samaj, a Society, registered under Socieities Registration Act. She proved the Memorandum of Association and Rules of working of Delhi Mahila Samaj as Ex.P1. Trust Deed was proved by her as Ex.P2. Rules & Regulations framed for functioning of the Trust have been exhibited as Ex.P3. She has then gone on to describe that the CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 22 of 79 :: 23 ::
Trust runs a working a women hostel for 40 inmates, Memobai Bhawan for destitute women (presently being used as working women hostel for 12 inmates), charitable medical clinic for nearby slum areas, computer centre and also an institute for secretarial practices. The Trust was receiving rent from the premises let out @ Rs.2.20 lacs from IGNOU, Rs.22,000/- from Hutchinson and Rs.22,000/- from Reliance. She deposed that she joined as one of the Trustees in the year 2000-01 and at the same, defendant no. 1 had also joined the Trust. Ms. Renu Talwani joined as Trustee in 2004. In the month of January, 2005 Ms. Zakia Sultana, Renu Talwani, Dr. S.V. Saluja, defendant no. 1 and the deponent were the five Trustees of the Trust. The misconduct of defendant no. 1 has been enumerated and deposed by PW-1 as under:-
(i) defendant no. 1 assumed Chairmanship of the Trust on 01.03.2005 by falsely minuting consent of two Trustees, namely, Zakia Sultana and Renu Talwani.
(ii) After assuming the office of Chairperson of the plaintiff Trust, she illegally started taking unilateral decision without approval of Trustees, CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 23 of 79 :: 24 ::
like renting out of part premises to M/s Reliance, appointing two girls as librarian, appointing a male staff member as hostel in-charge for women inmates, passing her own expense bill and misappropriating Trust funds to benefit certain individuals and her own self.
(iii) meeting of Board of Trustees scheduled for 24.06.2005 to discuss proposal for installation of Reliance tower was unilaterally preponed to 23.06.2005 and defendant no. 1 took the decision in the absence of other Trustees. The agenda note is Ex.P10.
(iv) she appointed a male staff, namely, Rajesh Priyadarshi as hostel in-charge for women inmates. Letter written by Rajesh Priyadarshi to bank describing himself as hostel in-charge is Mark C. CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 24 of 79 :: 25 ::
(v) she was withdrawing lot of cash on account of pay bills for warden directly, before money could be deposited in bank account.
(vi) she spent more than Rs.1 lac on her car in
9 months.
(vii) she spent huge amount on her mobile
phone bills.
(viii) Sh. M.K. Gupta wrote a letter dated
18.11.2005 (Ex.PW/1) and sent statement of
expenses claimed by defendant no. 1, which are Ex.PW1/1a, Ex.PW1/1b and Ex.PW1/1c (colly).
(ix) receipts of bills of expenses on
maintenance and repair of car are Ex.PW1/4
(colly.) (a to l).
(x) she claimed huge amount on account of
fuel and maintenance of car.
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11.2 In the meeting of the Trust on 25.10.2005, mismanagement and misuse of Trust funds by defendant no. 1 was raised by the Trustees when defendnat no. 1 got agitated and walked out of the meeting. Details of misdeeds of defendant no. 1 were recorded in the minutes of meeting (duly signed by 3 of the Trustees, who had preferred the present suit) MarkB. Thereafter, all the remaining four Trustees convened a special meeting and unanimously passed Resolution appointing Ms. Zakia Sultana as Chairperson. The minutes of the meeting are Ex.PW1/7. This appointment of Zakia Sultana was confirmed in meeting dated 11.11.2005 when the Resolution was passed by majority, in presence of all the five Trustees. However, defendant no. 1 had refused to sign the minutes. The minutes are Ex.PW1/8.
11.3 Defendant no. 1 wrote a letter to the PW-1 and Renu Talwani on 15.11.2005 (Ex.P11) subsequent to the meeting of 11.11.2005.
11.4 Vide a note pursuant to meeting dated 11.11.2005 (Ex.PW1/9), defendant no. 1 was asked to return all the Trust properties, including key of cupboard and Trust vehicle.
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11.5 PW-1 has furhter deposted that a notice was issued to defendant on 21.11.2005 (Ex.PW1/10) calling upon her to return the keys, documents and vehicles of the Trust since she had been removed from the office of Managing Trustee. On the same day, Zakia Sultana vide her letter to defendant no. 1 disputed the falsity of Minutes dated 01.03.2005 wherein, defendant had noted consent of Zakia Sultana for defendant's appointment as Managing Trustee. It is further deposed that defendant no. 1 vide Minutes dated 28.11.2005 gave the names of two ladies as sigantories to bank accounts even though, a decision had already been taken to close those two accounts. She fabricated the Minutes of 28.11.2005 to serve her illegal purpose. She had informed the bank that Cynthia Masih and Dr. Rajkumari Kubba had been appointed Trustees. The Trustees so appointed vide their letter dated 25.11.2007, wrote to IO, PS Ambedkar Nagar in FIR No. 508/06 that defendant no. 1 had been using the Trust as a personal property and misappropriating the Trust funds.
Defendant no. 1 had also forged her Ph.D degree.
12. The witness was cross-examined at lenght however, the focus of cross-examination was more on challenging the plaintiff's appointment rather than explaining the misconduct CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 27 of 79 :: 28 ::
allegedly committed by defendant. Witness was also cross- examined as regards issue of plaintiff being Society or Trust. In the cross-examination conducted on 22.09.2015, she deposed that there were five Trustees on 01.03.2005 and the Resolution could be passed by majority or unanimity. Three Trustees were present in the meeting and voted including the defendant. Witness deposed that she had no knowledge if the absent members had written letter to show their inability. Consent of absent Trustee was not taken telephonically in her presence. She further explained that the decisions were taken by the defendant no. 1 without the consent of Board Members, which was necessary in view of Memorandum of Articles. She further explained that male persons were not allowed to enter girls hostel and Sh. Rajesh Priyadarshi, who was Instructor for computer course was carrying the stamp of In-charge, Hostel. This action was also done by defendant no. 1 without bringing it to the notice of Board of Trustee. However, the witness did not know for how long Rajesh Priyadarshi remained as Hostel In-charge. Renting of premises to Reliance was also unilateraly done by defendant no.
1. Defendant no. 1 had been withdrawing cash through the warden under pretext of sundry expenses. The witness however, could not quantify the amount as it was 10 years old incident.CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 28 of 79 :: 29 ::
Explaining the allegation of exhorbitant charges for petrol and repairs, the witness deposed that the car was not as old as to require repair every or alternate month. Further cross- examination was deferred and never concluded.
13.1 PW-2 Renu Talwani vide her affidavit Ex.PW2/A has deposed on the same lines as PW-1 and reiterated the misconduct of defendant no. 1 and also that plaintiff Trustees who were 3 in number had removed the defendant no.1 from Chairpersonship and subsequently from the membership of the Trust. The witness was not cross-examined despite opportunity.
13.2 PW-3 Smt. Prakash Arora was Hostel Warden. She deposed that Zakia Sultana was made Chairperson by majoriby, but she was not allowed by defendant no. 1 to take charge. She also deposed that she was instructed by defendant no. 1 not to deposit cheques and cash and not to give the same to accountant. Two new Trustees were inducted by defendant no. 1. However, they left the Trust after dispute with defendant no. 1. She further deposed that in February, 2008, she was herself made a Trustee without her consent and she was forced to sign the Minutes Book. She further deposed that despite court directions not to CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 29 of 79 :: 30 ::
take money in cash, she was compelled by defendant no. 1 to received money in cash. She resigned under compulsion on 03.05.2012 because of harassment by defendant no. 1. The witness was also not cross-examined.
13.3 M.K. Gupta was examined as PW-4. He filed his affiavit Ex.PW4/A stating that he was Accountant since 1988. After death of Ms. Nirmala Malhotra in 2004, defendant no. 1 was appointed as Chairperson. Witness deposed that he realised that there was huge bill of expenses in the nature of car, petrol, car repair claimed by defendant no. 1 in cash without consent and approval of other Trustees. He deposed that defendant no. 1 spent more than Rs.1 lac on car only in 9 months. He further deposed that defendant no. 1 spent lot of money on her mobile phone which seemed to have international dialing facility. He proved the expenses claimed by defendant no. 1 from 01.03.2005 till 31.10.2005 as Ex.PW1/5. He further deposed that in October, 2005 when the remaining four Trustees unanimously wanted to remove the defendant no. 1 as Chairperson, a fight broke out. On 25.11.2005, defendant no. 1 directed warden of Trust to stop depositing all money in the bank and also not to give money in cash or cheque to the witness, who was the Accountant. He CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 30 of 79 :: 31 ::
proved letter dated 25.11.2005 as Ex.P-6. Witness further deposed that he informed the Trustee on 29.11.2005 that FDRs of Bank of India, Saket Branch were missing from his almirah and he was informed by the Warden that she had opened the almirah on the insistence of defendant no. 1. He proved letter dated 29.11.2005 as Ex.PW1/15. He further deposed that since he reported irregularity in financial matters, defendant no. 1 stopped his entry in the Trust and other centres. Subsequently, he was arbitrarily removed by defendant no. 1 vide letter dated 04.01.2006 Ex.PW1/34. This witness was also not cross-
examined.
13.4 PW-5 Ms. M.S. Singhal was Manager (Admin.) of Bank of India, Saket Branch. He proved the account statement of plaintiff Trust for the period 23.07.2009 to 31.03.2018 as Ex.PW5/1.
14.1 Defendant no. 1 tendered her affidavit as Ex.DW1/A. After deposing about her credentials and appointment as Member and Chairperson, witness deposed that Trustee Devyani Sircar mostly stayed out of Delhi, i.e., Jaipur and was not looking after the Trust. She had attended only eight meetings in the year 2005. Plaintiff no. 2 Zakia Sultana was very old and barely able to walk CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 31 of 79 :: 32 ::
on her own; she spent her time in Dubai where her son was posted. She hardly attended four meetings in 2004 and two in 2005. Plaintiff no. 3 was also not interested in functioning of the Trust and attended only three meetings in 2005. Since the defendant was insisting upon them to devote more time for functioning of Trust, they all plotted her ouster. She went on to challenge her removal in the meeting dated 25.10.2005 on the ground that the Minutes were not signed by fourth Trustee, namely, Sh. D.V. Saluja. She claimed to be continuing as a Trustee becuase she was running day to day functions of the Trust. She denied if any male staff was appointed as In-charge of the hostel. She deposed that in meeting dated 28.11.2005, Devyani Sircar, Zakia Sultana and Renu Talwani were expelled from the Trust for their anti-Trust activities. In retaliation thereof, plaintiffs made false allegations against defendant no. 1. Accountant M.K Gupta was not reporting for duty since November, 2004, therefore, his salary was not released. She denied that Sh. Rajesh Priyadarshi was ever appointed as hotel in-charge for women inmates. She claimed that Resolution dated 11.11.2005 whereby, she was removed as Chairperson was illegal and expulsion of defendant no. 1 as a Trustee vide meeting dated 13.12.2005 was also illegal.CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 32 of 79 :: 33 ::
14.2 Witness was cross-examined to suggest that she started using the seal of Chairperson on her various communications whereas, the same was not used by previous Chairpersons.
Admitted that the decision of the Trust for its executive functions were bound by decision of majority Trustees rather with the consent of those present. Not specifically answer that as Chairperson she was bound by decision of majority. Witness was further cross-examined as regards Minutes dated 26.06.2004 and she did not remember whether the Minutes were confirmed in the presence of Trustees present. She also had no explanation as to why the Minutes were not placed on record. She denied the suggestion there were no Minutes which confirmed Minutes dated 26.06.2004 appointing her as acting Chairperson. She also could not satisfactorily answer as to why Minutes dated 01.03.2005 and Agenda for the meeting were not placed on record. She was asked if she had placed any Minutes of the meeting, where unavailability of the Trustees in the meeting had been pointed out. She denied the suggestion that she had deliberately not produced the Minutes Book for the year 2004-05 as she had falsely deposed about Devyani Sircar, Zakia Sultana and Renu Talwani not being available for the meetings. She was cross-examined as regards Minutes dated 25.10.2005 which were CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 33 of 79 :: 34 ::
not signed by the other Trustees as regards the proceedings of the day though, they had signed their presence before Minutes were recorded. She did not remember if Minutes of Meeting subsequent to 25.10.2005 were placed on record to confirm Minutes dated 25.10.2005. She denied that if any dispute had arisen between Trustees as regards meeting dated 25.10.2005. She was confronted with Ex.P7, which was the agenda notice for meeting dated 25.10.2005, which was for the proposal to remove three Trustees and induct new Trustees. She had consulted only Dr. D.V. Saluja for issuing agenda dated 04.11.2005.
14.3 In cross-examination dated 17.03.2018, witness admitted that she wanted to remove Zakia Sultana as Trustee and she also was of the view that the three Trustees were misconducting and, therefore, their removal was required. Induction of new Trustees, namely, Cynthia Masih and Rajkumari Kubba was not discussed with other Trustees, as these Trustees were conspiring against her. She denied the suggestion that since plaintiff Trustees had passed Resolution on 25.10.2005 by majority against her, thereore, in retaliation she manipulated the agenda notice dated 04.11.2005 to make a ground for their removal from the Trust.
She deposed that she wanted to remove them because they were CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 34 of 79 :: 35 ::
indulging in anti-Trust activities. She did not remember the anit- Trust activities of Trustees between 25.10.2005 and 04.11.2005. She denied the suggestion that since majority Trustees stopped her from exercising executive powers on 25.10.2005, she got the bank account suspended and directed the warden not to deposit cash in the bank. She did not remember that in November- December, 2005, she instructed the tenants as well as her son and others to give cheques without mentioning the account numbers and also not to entertain instructions from plaintiffs as regards payments of cheques. She was confronted with letter Ex.P5??, where she had so stated. She further deposed that no approval was required of personal bills of Chairperson as the same was always on actuals. Witness was asked a question whether she and Dr. Saluja inducted two new Trustees and gave their names as signatories to bank accounts of Trust in the absence and without approval of majority of Trustees. The witness did not answer the question and a court observation was made that the witness has been rather putting questions to the counsel for plaintiff than answering during the cross-examination.
14.4 She admitted that despite interim order dated 23.07.2008 passed in this matter, Devyani Sircar was not authorised to CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 35 of 79 :: 36 ::
function as Managing Trustee because "Trustees had not assigned any function to her". She was then put a question that she did not let Devyani Sircar function as Managing Trustee in order to keep the exclusive control over Trust. She denied the statement and volunteered that the powers had to be conferred by Board and not by her and when questioned that as to what functions she was assigned by the Trustees, she answered that Chairperson is over all in-charge of the Trust and Trustees do not have to entrust Chairman with any powers. She deposed that average collection every month in the Trust was Rs.50,000/- to Rs.60,000/- in cash and the same was deposited in the bank account of the Trust, which was primarily Oriental Bank of Commerce and Bank of India, Saket. She was put a suggestion that she was not depositing the cash collection in the authorised bank account of the Trust as approved in the interim order dated 23.07.2008. She deposed that the accounts had been frozen and after the interim order dated 23.07.2008 accounts became operative. Continuing this line of cross-examination on 07.08.2018, she was confronted with statement of account dated 01.01.2005 to 18.04.2018 Ex.DW1/PX-1 wherein, there was no cash deposits for the years 2012, 2013, 2014, 2017 till 13.04.2018 and in the year 2016, only Rs. 41,000/- was deposited CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 36 of 79 :: 37 ::
in cash. In the year 2011, Rs.3,17,665 was deposited. She explained that during this period, since the accounts were frozen by Devyani Sircar and computers had to be purchased. Similarly, Vibha D/o Gayatri was to be paid money for her admission in medical college and salary of Naresh Kumar, computer teacher and and salary of Vibha D/o Gayatri as English teacher. The cheques had not signed by Devyani Sircar, therefore, all these payments were made in cash. Similarly, Rs.61,000/- were spent in cash in repairs of generators. Since these payments were made in cash, same were reflected in the accounts and she could produce the same on the next date. Further cross-examination was deferred with directions to witness to produce the accounts of the Trust. The witness thereafter, did not turn up for cross- examination and the accounts of the Trust were not produced.
14.5 In her cross-examination dated 07.04.2018, she also deposed that she had made certain payments from her pension account as Devyani Sircar was not signing the cheques.
However, she did not place on record her bank account statements to support this averment. She also admitted that she had not challenged the Observer's Report dated 15.10.2018 where observations had been made against her in paras-E & F. CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 37 of 79 :: 38 ::
She was also confronted with situation that she had changed the auditor of the Trust who had been working for last 30 years, namely, M/s Raghunath Rai Company in the year 2005. Therafter, she frequently changed auditors, i.e., MSN & Company thereafter, Yatish Agarwal, CA and then B.K. Karan.
14.6 She further deposed that she removed the new Trustees, namely, Raj Kumari Kubba and Cynthia Masih, as they were indulging in anti-Trust activities, like not signing the cheques and instigating the staff against management. At the time of removal of aforesaid Trustees, she did not take the consent of other Trustees, as others had already been expelled. She explained that order of Hon'ble High Court permitting three Trustees to continue was not applicable, as the order was passed after removal had already taken place. She stated that these thee Trustees had been removed by her by verbally giving theim notice and not seeking any explanation from them. She further deposed that she had inducted three more Trustees, namely, Preeti Chauhan, Urmila Rani Gupta and Lalita Sundaram after filing of the suit. She had not taken the consent of the plaintiff Trustees, as one of them had passed away and other two were not coming to the Trust for seven years. However, she admitted that CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 38 of 79 :: 39 ::
Devyani Sircar and Renu Talwani had been signing the cheques every month for payment of salaries and expenses of the Trust. She further deposed that no notice of induction of three Trustee were sent to Devyani Sircar and Renu Talwani and volunteered that agenda was circulated in the meeting and since the Trustees were not present, they could not be made aware of the Agenda. She did not remember date, month or year of induction of these 3 Trustees. She however, admitted that Devyani Sircar and Renu Talwani used to attend meetings of the Trust whenever HMJ Usha Mehra (retired) conducted meetings under her supervision.
14.7 She admitted that four employees of the Trust, namely, Gayatri, Maya, Sarojani and Anita had filed cases against her for non-payment of their salaries. They had also filed cases against the Trust for their removal. She admitted that more than Rs.14 lacs is due as taxes. She also admitted that notice from Income Tax Department was received as tax dues. She did not remember the approximate balance in the fixed deposit in the Trust account.
She was asked if there was any misconduct of the plaintiff Trustees recorded in any of the meeting prior to 25.10.2005, she answered in affirmative, but could not show any such Minutes. She was given a suggestion that whenever any Trustee inducted CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 39 of 79 :: 40 ::
by her became inconvenient, she removed those Trustees without taking consent of the plaintiff Trustees. She denied the suggestion and claimed that removal was by the Board. However, no such Board Resolution was placed on record.
14.8 Witness was questioned on the Board Resolution dated 28.03.2008 Ex.DW1/PX-A, which did not contain the name of Renu Talwani and Dr. Saluja and rather contained the name of Preeti Chauhan, Lalita Sundaram and defendant herself. She was asked if this was in direct conflict with the orders of Hon'ble High Court which had directed that either Devyani Sircar or Renu Talwani was one of the mandatory signatories to bank accounts of the Samaj. She did not give any satifactory reply.
Defendant's evidence was closed by order.
15. Arguments of both the parties were heard at length and written arguments were also tendered on behalf of both the parties.
16.1 On behalf of plaintiff, it is argued that suit was maintainable under Section 92 CPC as already decided by Hon'ble High Court vide its order dated 23.07.2008. Suit was CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 40 of 79 :: 41 ::
initially filed by three plaintiffs, namely, Devyani Sircar, Renu Talwani and Zakia Sultana. Three of the Trustees out of the five, had filed the suit, therefore, the suit was validly maintainable and the same was in the interest of the Trust. Reliance has been placed upon judgment of Hon'ble Delhi High Court in IA 3947/04 (CS No. 512/04) titled Rahul Jain & Ors. Vs. Pradeep Kumar & Ors. decided on 23.08.2008 to argue that suit was maintainable when at least two persons, who are desirous of instituion of the suit existed on the day the application under Section 92 CPC was heard or taken up for consideration. Answering issue no. 2 that the suit was not maintainable for non- joinder of parties, namely, Cynthia Masih and Dr. Raj Kumar Kubba; it is argued that both of them had already been removed as Trustees by defendant no. 1, therefore, the issue was no more of relevance.
16.2 For issue no. 3, it is argued that there is no provision in the rules & regulations for appointment of a Chairperson. This post is conceived only for the purposes of presiding over a meeting of the Trust. No special power has been conferred upon the Managing Trustee or the Chairperson. Trustees had the power to empower the Chaiperson or Managing Trustee to perform all or CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 41 of 79 :: 42 ::
any of the powers of the Trust. However, she is to continously enjoy the confidence of majority of the Trustees. Minutes dated 26.06.2004 (Ex.D-3) through which defendant no. 1 contends herself to be appointed Chairperson is challenged by Counsel on the ground that the Minutes were not signed by other Trustees.
They had signed the same only in the beginnning to mark their presence and not to confirm the Minutes. Defendant misrepresented that she had the consent of two Trustees, namely, Zakia Sultana and Renu Talwani, who were not present in the meeting dated 01.03.2005 appointing her as permanent Chairperson. However, both these Trustees subsequently denied having given any consent for such Minutes.
16.3 It is further argued that abuse of her position as Chairperson is proved from manipulation of Minutes of Meeting dated 26.06.2004 (Ex.D3) and Minutes dated 01.03.2005, also Minutes dated 25.10.2005 & special Resolution of the Meeting dated 25.10.2005. The exclusion of other Trustees in illegal removal and induction of Trustees is also argued to be misuse of powers. She unilaterally exercised the powers pretending to be executive head. She communicated with banks declaring herself to be undisputed Chairperson. She tried to remove the plaintiffs CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 42 of 79 :: 43 ::
from the Trust, as they had opposed her and had removed her from the post of Chairperson. It is further argued that she misappropriated the Trust funds, she opened a new bank account and misappropriated the cash collections. At her whims & fancies, she removed the accountant and changed the auditor. She did not pay the salaries for years. Trust funds which used to be in crores during the year 2005 were reduced to mere thousands in 2018. She did not allow Devyani Sircar to function as Managing Trustee, despite having been so appointed by majoiry and approved by Hon'ble High Court vide order dated 23.07.2008. Observations of the Court Observor, HMJ Usha Mehra (retired) in Report Ex.PW1/14 has been relied upon.
16.4 Towards issue no. 6, it is argued that defendant no. 1 had no capacity to call the meeting of the Board on 28.11.2005. No prior show cause notice in writing had been served upon the plaintiff Trustees. Their removal was thus, absolutely unilateral and illegal. Same has already been invalidated by Hon'ble High Court vide order dated 23.07.2008. The alleged meeting dated 28.11.2005 in which removal of plaintiff had taken place, had two different Minutes, which is evidently forged. Appointment of Zakia Sultana as Chairperson vide meeting dated 25.10.2005 is CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 43 of 79 :: 44 ::
sought to be supported with the argument that the meeting was covnened by a prior notice by defendant herself. The meeting was attended by all the five Trustees. When the misconduct of the defendant no. 1 was raised, she left the meeting abruptly and the remainign Trustees which were four in number, signed the Resolution appointing Zakia Sultana as Chairperson. This appointment was further confirmed vide meeting dated 11.11.2005 which was attended by defendant no. 1. Minutes Ex.PW1/8 establishe the same. Expulsion of defendant no. 1 from the Board of Trustees vide majoriy decision in meeting dated 16.12.2005 is sought to be supported by referance to Rule No. 9, where Trustees by two-third majority can remove a Trustee who is acting against the interest of the Trust.
16.5 It is thus, argued by Sh. R.K. Mishra, Counsel for plaintiff that suit should be decreed and removal of defendant no. 1 from the post of Chairpersonship and expulsion from the Trust should be upheld. Defendant no. 1 should be directed to render the accounts of the Trust. It is next submitted that court may appoint Trustees on its own to complete the quorum of five.CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 44 of 79 :: 45 ::
17.1 Strongly constesting the suit, Sh. R. Krishnamorthy, Counsel for defendant no.1 has addressed oral arguments and also relied upon written arguments. Suit is first sought to be challenged on the ground that Delhi Mahila Samaj is a registered Society and not a Trust. Therefore, invokation of Section 92 CPC and institution of suit is argued to be invalid. It is next argued that Section 92 CPC cannot be used for vindication of personal or individual rights of the plaintiff Trustees. Plaintiffs who had not been participating in the activities of the Trust because of their ailments, old age or being out of station ganged up together against defendant who was trying to carry out functions and activities of Trust. It was only because plaintiffs were not available to participate in the activities of Trust that more Trustees had to be inducted. Plaintiffs have failed to substantiate allegations of breach of Trust against the defendant. Reliance is placed upon law laid down in Swami Paramatmanand Saraswati Vs. Ramji Tripathi (1974) 2 SCC 695.
17.2 Suit is sought to be dismissed for non-joinder of Cynthia Masih and Dr. Raj Kumar Kubba, it is argued that both were necessary parties as they were the Trustees on the day suit was instituted. In support of issues no. 3, 4, 5 and 6, it is argued that CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 45 of 79 :: 46 ::
the Minutes of Meeting dated 26.06.2004 had a typing mistake and plaintiffs are trying to take undue advantage of the same. It is argued that there was no male person appointed as hostel warden. He was only a computer teacher and Smt. Prakash Arora was the hostel warden. Salary of driver of the defendant no. 1 is also sought to be explained that the same was only Rs.4200/- per month and not Rs.5000/- as claimed by plaintiffs. Loan issued to Gayatri was sanctioned by Board in its Meeting dated 24.11.2004 and she had repaid the same. Plaintiffs in a mala fide manner withdrew the support of education of Gayatri's children. Reference is made to paras-44, 45 and 77 of observation of Hon'ble Single Bench of Hon'ble High Court of Delhi regarding conduct of business of Trust by defendant. It is argued by Sh. Krishnamorthy that there was no misconduct by defendant and plaintiffs who were not participating in the activities of the Trust were righty removed by her. There was no financial irregularity or misconduct by her so as to be removed from Chairpersonship of the Board of Trustees. Suit is prayed to be dismissed.
18.1 I have heard Sh. Ramesh Kumar Mishra, Counsel for plaintiff and Sh. R. Krishnamorthy, Counsel for defendant. With CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 46 of 79 :: 47 ::
their assistance, I have gone through the voluminous record, written submissions and the judgment relied upon.
18.2 For convenience of disposal of suit, issues no. 3, 4, 5 and 9 can be taken up together and issues no. 6, 7 and 8 can also be taken up together for disposal. My issue wise findings are as under:-ISSUE NO. 1
1) Whether the prsent suit under Section 92 of the Code of Civil Procedure is maintainable in view of death of plaintiff No. 2 on 10.10.2007? OPD
19.1 For ready reference, relevant portion of Section 92(1) CPC is reproduced herein below:-
"92. Public Charities. --(1) In the case of any alleged breach of any express or any constructive Trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such Trust, the Advocate- General or two or more persons having an interest in the Trust and having obtained the [leave of the Court] may institute a suit, whether contentious or nt, in the principal CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 47 of 79 :: 48 ::
Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matte of the Trust is situate to obtain a decree --..."
19.2 Challenge to maintainability of the suit, on behalf of defendant, is that it is only one of the Trustees, is available and pursuing the suit and the leave of the Court was not sought by two more persons having any interest in the Trust. To counter this argument, Sh. Mishra has pointed out that the suit as initially preferred was by Trust and two Trustees, namely, Zakia Sultana and Renu Talwani, i.e., plaintiffs No. 2 and 3. Trust itself was plaintiff no. 1 through third Trustee, namely, Devyani Sircar. It is argued that these three Trustees out of the five had preferred the suit. The suit was accordingly, preferred by two or more persons having interest in the Trust, meeting the mandate of Section 92 CPC. Summons were issued by Hon'ble High Court where the suit was then pending on 27.04.2006 and by the same order, IA seeking leave under Secton 92(1) CPC was allowed. It can thus, be said that the application under Section 92(1) CPC was first considered on the said date. The arguments on the application CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 48 of 79 :: 49 ::
were subsequently, advanced at length and finally the order on the application under Setion 92 CPC and other applications, i.e., under order XXXIX Rules 1 and 2 CPC and leave to place additional documents by plaintiff were all reserved for orders on 16.05.2007. The order was finally pronounced on 23.07.2008 deciding the applications including the application for leave to file the suit. Plaintiff no. 2 expired on 10.10.2007 during the period when the applicaiton was reserved for orders and its pronouncement. In any case, two of the plaintiffs were still surviving and available. Nonetheless, reliance has rightly been placed upon Rahul Jain's case (supra) where the Hon'ble High Court has held that two or more persons desirous of instituting the suit must exist on the date when the application under Section 92 CPC seeking leave to institute the suit is heard or taken up for consideration. For ready reference, the relevant portion of law laid down by Hon'ble High Court of Delhi is reproduced herein below.
"... 13. So far as the requirement of the suit under Section 92 being instituted by two or more persons is concerned, the prohibition is to be found in the statute itself. The object and reason for stipulating that a suit against the public trust would lie at the instance of the CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 49 of 79 :: 50 ::
Advocate General or two persons or more who must seek leave of the court is to be found in public policy that a trust should not be unnecessarily dragged into litigation at thet instance of any disgruntled trustee or person. The proposed suit must be a the instance of atleast two persons and therefore, application to seek leave has to be filed by two such persons. The two persons who are desirous of instituting the suit must therefore exist on the date when the application under Section 92 seeking leave to sue is to be heard. ..."
19.3 In the present case, the application was taken up much earlier, but finally reserved for orders on 16.05.2007 and on the said date, all the three plaintiff Trustees were alive, who had preferred the suit. I, therefore, hold that suit when preferred, met the requirements of Section 92 CPC. Issue no. 1 is accordingly, decided in favour of plaintiff and against the defendant.
ISSUE NO. 22) Whether the suit is liable to be dismissed on account of non-joinder of parties namely Ms. Cynthia Masih and Dr. Raj Kumar Kubba? OPD CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 50 of 79 :: 51 ::
20. Challenge is also made to maintainability of the suit on the ground of non-joinder of necessary parties. Action of defendant no. 1 in inducting Cynthia Masih and Raj Kumar Kubba, as Trustees without the consent of other Trustees has been sought to be set aside by way of prayer clause (e). Defendant raised objection to maintainability of the suit, as both of the Trustees, namely, Raj Kumari Kubba and Cynthia Masih, whose induction as Trustees is challegned, were not made parties. It has however, come in evidence that during the pendency of the suit, defendant no. 1 removed them as Trustees in the same manner as they were inducted. Therefore, this Court is of the opinion that without going into the manner in which these two Trustees were inducted and subsequently, expelled by the defendant, it shall be sufficient to note here that since both of them are admittedly no more Trustees, non-impleadment of them as defendants would not prejudice their interests. However, as regards the conduct of defendant in unilaterally inducting them and subsequently, expelling them as Trustees shall be relevant to be considered for while deciding issues no. 3, 4, 5 and 9. For deciding those issues, Raj Kumari Kubba and Cynthia Masih were certainly not necessary or proper parties to the suit. Therefore, non- impleadment of them would not in any manner, be ground to CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 51 of 79 :: 52 ::
non-suit the plaintiffs. Issue no. 2 is also decided in favour of plaintiffs and against the defendant.ISSUE NO. 3
3) Whether the appointment of defendant No. 1 as Chairperson of the Delhi Mahila Samaj Trust is invalid for any reason? OPP
21.1 The answer to this issue lies in the rules & regulations of Delhi Mahila Samaj Trust. For ready reference, rules-5, 6, 14, 16 and 18(ix) are reproduced herein below:-
"... 5. The Trustees may appoint one of the Trustees to be designated as a Managing Trustee and may fix the powers and duties of such a person.
6. Ordinarily the Managing Trustee shall subject to the overall superintendence of the Board of Trustees have the power to manage and administer the day to day working of the Trust and to look after its activities.
....
14. All meetings shall be chaired by the Chairperson or in her absence by the Managing Trustee or in the absence of both, by any other Trustee senior most in age amongst CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 52 of 79 :: 53 ::
those present. The Chairperson of the meeting shall also have a casting vote.
...
16.In case of any difference of opinion among the Trustees for the time being in any manner concerning the Trust inclduing interpretation of these presents, the power of appointment of the Trustees or any other matter or question relating to or arising out of the Trust, the opinion of the majority shall prevail and be binding and conclusive.
18 The Trustees shall have full powers to manage the affairs of the Trust as mentioned in the Trust Deed and in particular the following ...
ix) To empower the Chairperson, Managing Trustee, or in any other Trustee or any other person to perform all or any of the powers of the Trust and to sign contracts, documents etc. For and on behalf of the Trust. ..."
21.2 A study of the aforesaid regulation reveals that the Rule 5 envisages one of the Trustees to be designated as Managing Trustee and the Trustees to fix the powers of such a Managing Trustee. Rule-6 further provides that the Managing Trustee shall have the power to manage and administer the day to day working of the Trust and look after its activities subject to superintendence of Board of Trustees. It is Rule-14 which talks CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 53 of 79 :: 54 ::
of the designation as Chairperson. Study of Rule-14 indicates that for each meeting, one of the Trustees shall be designated as Chairperson. The only extra power that the Chairperson has been given is, casting vote. Rule-16 further qualifies that interpretation of the rules shall be decided by the majority principle. Rule 18(ix) defines the powers of the Trustees, which inlcludes the power to empower the Chairperson or the Managing Trustee or any other Trustee to perform all or any of the powers of the Trust viz. signing of contract, documents etc. 21.3 A study of the rules aforenoticed reveals that the post of Chairperson is not envisaged to be a permanent position having any special powers. Rule 14 indicates that it is only for each meeting that one of the Trustees would be appointed as Chairperson. It seems that role and duty of the Chairperson envisaged under the Rules is to manage, chair or head the meeting so convened. It is only a casting vote which has been given to such a Chairperson and no special powers. It is the Managing Trustee as defined in Rule-6 who has the power to manage and administer the day to day working of the Trust and to look after its activities. However, a study of the evidence that has come on record indicates that defendant no. 1 was exercising CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 54 of 79 :: 55 ::
and performing the role of Managing Trustee rather than that of role of Chairperson. As noticed above, the role of Chairperson was limited to preside over a particular meeting and nothing more than that. In any case, it is the case of defendant that she was appointed acting Chaiperson in meeting dated 26.06.2004 (Ex.D/3). The plaintiffs have contested this appointment on the ground that the Minutes do not bear the signatures of the Trustees. A study of the Minutes Ex.D3 reveals that among other business transacted on 26.06.2004, defendant was appointed as acting Chairperson and she was handed over important documents of the Trust. It is the case of plaintiffs themselves that all important papers and keys of the almirahs are in possession of the defendant. Thus, the business transacted on 26.06.2004 wholy cannot be disputed or doubted. A study of various Minutes on record, i.e., Ex.D3, Ex.D6 reveals that the practice of all members signing the Minutes at the bottom of the proceedings was not being followed. Signatures of all the members present were obtained at the commencement of the meeing and business transacted was signed by the Chairperson only. It is in the next meeting that the Minutes of the previous meeting were confirmed. Thus, relevant would be minutes of subsequent meeting, i.e., 26.10.2004 when the minutes of 26.06.2004 were to CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 55 of 79 :: 56 ::
be confirmed. Defendant has chosen not to place on record the minutes of the meeting dated 26.10.2004. During her cross- examination, she did not tender any justifiable explanation as to why those minutes have not been placed on record. Inference that can be drawn is that the minutes of 26.10.2004 were not in order& her appointment as Acting Chairperson was not confirmed. Defendant has placed on record minutes of meeting subsequent thereto, i.e., 24.11.2004 (Ex.D6). A Perusal of Ex.D6 reveals that it confirmed the minutes of meeting dated 26.10.2004, establishing that a meeting did take place on 26.10.2004. Defendant who is the custodian of records has withheld the minutes of meeting dated 26.10.2004. Inference shall be drawn against her.
21.4 Therefore, the appointment of defendant no. 3 as acting Chairperson allegedly minuted in the Meeting dated 26.06.2004 does not stand established to have been confirmed. The practice of confirming the Minutes of the previous meeting in the subsequent meeting has been noticed and has been admitted by DW-1 in her cross-examination. She also admitted that the Minutes confirming her appointment as her acting Chairperson have not been placed on record. As noticed above, the Minutes of CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 56 of 79 :: 57 ::
business transacted on 26.06.2004 have not been signed in the Minutes Ex.D3. Therefore, this court has no hesitation in holding that defendant has not been able to prove that she was appointed Acting Chaiperson of the Trust on 26.06.2004.
22. Defendant has also claimed herself to be appointed as permanent Chairperson in meeting dated 01.03.2005 claiming that she had the consent of two absent Trustees, namely, Zakia Sultana ad Renu Talwani. Copy of the Minutes of Meeting dated 01.03.2005 or the subseqent meeting confirming the business of 01.03.2005, have also not been placed on record by the defendant. On the contrary, Renu Talwani as PW-2 has deposed that she had not consented to appointment of defendant as permanent Chairperson. Zakia Sultana vide her letter Ex.PW1/13 has stated that she did consent for appointment of defendant as permanent Chairperson. Signatures of Zakia Sultana on Ex.PW1/13 have been admitted by defendant in her cross- examination and PW-2 Renu Talwani has not been cross- examined on behalf of the defendant. Thus, the defendant's claim to have been appointed as permanent Chairperson also fails. Therefore, issue no. 3 is decided in favour of the plaintiff and against the defendant.
CS No. 8998/16Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 57 of 79 :: 58 ::
ISSUES NO. 4 AND 54) Whether the defendant No. 1 has in any manner abused her position as the Chairperson of the Delhi Mahila Samaj Trust as contended by the plaintiffs in paragraph No. 3(j) to (kk) of the plaint? OPP
5) If the answer to issue No. 4 is in the affirmative, is the defendant No. 1 liable to be removed from the her position as the Chairperson of the Delhi Mahila Samaj Trust and / or as Trustee of the said Trust? OPP 23.1 These issues form the major challenge by the plaintiffs in the suit. These are the most material and important issues which shall have bearing on the status of defendant in the Trust. To establish the misconduct of defendant, plaintiffs have enumerated various instances and to establish the same, plaintiff examined four witnesses. Defendant chose to cross-examine only one of them and testimony of other three witnesses has gone unrebutted.
At no stage, defendant sought to recall those witnesses for cross- examination or challenge the order by which her right to cross- examine those witnesses was closed. Even the cross-examination of PW-1 was no concluded; yet, since the witness had been cross-examined substantially over 7 occasions running into 25 CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 58 of 79 :: 59 ::
pages, the cross-examination of PW-1 shall be deemed to be complete.
23.2 The allegations of misconduct are misrepresenting and proclaiming herself to have been appointed as acting Chairperson and subsequently, permanent Chaiperson. As discussed in paras- 21 & 22, the Minutes of the meetings dated 26.06.2004 (Ex.D3) and 01.03.2005 vide which defendant claims to have been appointed as Acting Chairperson/ permanent Chairperson, are not established. The subsequent Minutes confirming her such designation have been withheld by the defendant. It is admitted case that she is in possession of all records of the Trust as well as the keys of the almirahs and other properties. The Minutes dated 26.06.2004 whereby, she admits having received all those documents and keys shall be read against her. However, her appointment as acting Chairperson cannot be read to have been established as the Minutes confirming her appointment, have been withheld by her from the records which she possess. The records of 26.06.2004 appointing her as Chairperson have thus, been manipulated by her. The first misconduct alleged by the plaintiff against her thus, stands established.CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 59 of 79 :: 60 ::
23.3 Manipulation of alleged Minutes dated 01.03.2005 -
Though, no such Minutes have been placed by defendant however, she claims that vide meeting dated 01.03.2005, she was appointed permanent Chairperson with the consent of Renu Talwani and Zakia Sultana. As discussed in para-22 above, none of the two Trustees have confirmed and have rather, stated to the contrary regarding their consent for appointment of defendant as permanent Chaiperson.
23.3.1On the strength of these manipulated minutes, defendant has been holding herself act as Chairperson of Trust and dealing with employees, Banks etc. Since 2005.
23.4 Proceedings of Meeting dated 25.10.2005 - It is this meeting, admittedly attended by all the five Trustees, which constitutes the flash point in the conduct and affairs of the Trust. As per the Minutes dated 25.10.2005 signed by three of the Trustees (Mark B), during the deliberation of agenda, a serious disgreement was voiced by the Trustees against the defendant concerning the manner of managing the affairs of the Trust. Unilateral decisions by defendant in appointments, misuse of Trust funds for the benefit of certain individuals and self, rude CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 60 of 79 :: 61 ::
behaviour with the colleagues, condoning indiscipline by residents and assuming office of Chaiperson by falsely minuting the consent of Trustees was discussed and highlighted. On this, defendant got agitated and walked out of the meeting. The Trustees convened a special meeting, minutes (Ex.PW1/7) duly signed by four of the Trustees noticing and recording the misconduct of defendant and Zakia Sultana being senior most Trustee was designated as Chairperson of the Trust. It is these two Minutes, Mark B and Ex.PW1/7, which constitute the watershed moment in the affairs of the Trust. All the four Trustees voted against the defendant who incorrigibly and unilaterally declined to follow the majority view. Proceedings of 25.10.2005 Mark B and Ex.PW1/7 stand established as they bear signatures of four of the Trustees, which fact has not been challenged by the defendant. Defendant's right to continue projecting herself as Chairperson stands completely obliterated and fore-closed by these Minutes. The fact that the allegation of misconduct stand minuted as early as on 25.10.2005 establishes that the allegations in the suit are not false and afterthought. In the meeting, instead of explaining her conduct, defendant became adamant and walked out indicating that she had no answers. She had lost total trust and faith of four of the Trustees in a five CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 61 of 79 :: 62 ::
member Trust. The proceedings of 25.10.2005 were confirmed in the subsequent meeting dated 11.11.2005, minutes whereof, are Ex.PW1/8. These Minutes have again been signed by three Trustees, which confirms the proceedings of 25.10.2005 appointing Zakia Sultana as Chairperson and request to defendant to hand over all the Trust properties including keys of almirahs and Trust vehicle to Zakia Sultana. The aforesaid three documents establish that defendant had no right to continue projecting herself as a Chairperson or to be in possession of properties of the Trust, including keys of almirah and Trust vehicle etc. However, defendant till date has continued to be in possession of the properties of the Trust and using the same. The same establishes gross misconduct on part of the defendant.
23.5 Exercise of power in exclusion of other Trustees and illegal removal and induction of new Trustees - Any action or any proceeding by the defendant projecting herself as Chairperson conducted after 25.10.2005/ 11.11.2005 were absolutely vitiated and void ab initio. Undeterred and incorrigibly, defendant who had been ousted from the position of Chairperson by four of the five Trustees continued projecting herself as Chairperson and conducting parallel proceedings of the CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 62 of 79 :: 63 ::
Trust. Vide notice datd 04.11.2005 Ex.P7, she convened a meeting for 28.11.2005 for disqualification and removal of some of the Trustees and induction of two new Trustees and further for sending the names of new Trustees, Raj Kumari Kubba and Cynthia Masih as signatories in the Trust zaccount with Oriental Bank of Commerce and Bank of India. Defendant's unilateral conduct of the proceedings of the Trust reached its zenith, when she conducted the meeting of the Trust on 28.11.2005 (Ex.P20). In the said meeting, knowing fully well and having already been removed from the Chairpesonship of the Trust, she continued to be the Chairperson and in the presence of only one member Dr. S.V. Saluja she removed three of the plaintiff Trustees from the Board of Trust and inducted two new Trustees, namely, Cynthia Masih and Raj Kumari Kubba. Vide the same proceedings, Cynthia Masih and Raj Kumari Kubba were also made authorised signatories for the purposes of bank accounts of Trust and all the three plaintiff Trustees were divested of such rights. There is nothing on record to indicate that the plaintiff Trustees, who by defendant's own admission were Trustees on the said date, had been invited to the aforesaid meeting or were even informed about the same. Such decision taken by two of the five Trustees, who do not constitute the majority, would not stand the CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 63 of 79 :: 64 ::
test of the Rule 16 of Rules & Regulations (Ex.P3), which provides for all actions to be taken by majority of the Trustees. Authoritariasm and absolutism at the end of defendant is further reflected from the fact that she subsequently removed Raj Kumari Kubba and Cynthia Masih also from the Board of Trustees again by a unilateral action. And, instead appointed three more Trustees, namely, Preeti Chauhan, Usha Rani and Lalita Sundaram, yet again without the consent and confidence of other Trustees.
23.5.1 In the aforesaid facts and circumstances, this court is of the opinion that the defendant totally misconducted herself in convening Minutes and transacting business as important as removing Trustees and inducting new Trustees without following the principle of natural justice and without inviting the existing Trustees to attend such meetings.
23.6 Financial Irregularity - The first and foremost misconduct and abuse of power by defendant was opening new bank account of Trust and authorising new Trustees, namely, Raj Kumari Kubba and Cynthia Masih as signatories to the bank accounts and by the same Resolution as noticed above Ex.P20, CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 64 of 79 :: 65 ::
revoking the power of plaintiffs from being signatories of the bank account. However, the said error was rectified by Hon'ble High Court vide order dated 23.07.2008. Nonetheless, the defendant had conducted the misconduct. Opening of new bank account to the exclusion of plaintiff Trustees was an act of appropriating the Trust funds to her own exclusive control which accounted to mala fide intention of misappropriating funds.
23.6.1 Smt. Prakash Arora, Warden (PW-3) deposed that she was compelled by the defendant to receive payment in cash and she was also directed not to hand over the cheque and cash so collected to accountant. M.K. Gupta, Accountant (PW-4) has also deposed on the same lines. Warden was directed to stop depositing all money received by the Trust and also not to give cash to the Accountant. He has further deposed that all original FDRs of Bank of India, Saket Branch were missing from almirahs. Both the witnesses have remained uncross-examined.
This part of testimony of these witnesses is corroborated by testimony of DW-1 when she was confronted with the position that in the year 2012, 2013, 2014, 2017 till 13.04.2018 , no cash was deposited in the account of the Trust and in the year 2016, only Rs. 41,000/- was deposited in cash and in the year 2011, CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 65 of 79 :: 66 ::
Rs.3,17,665 was deposited. Instead of giving a direct answer, defendant in her cross-examination dated 07.08.2018 tried to explain that the amount received in cash was spent in cash towards purchase of computer, fee of medical college admission of one Vibha daughter of Gayatri and salary to such daughter of Vibha and salary of Naresh Kumar and also towards repairs of generator. Thus, it is evident from record that the defendant misconducted financially, in as much as the cash receipts were not deposited in the bank accounts and misappropriated by defendant on her own whims and fancies without the consent of other Trustees.
23.6.2Defendant's conduct reached another low when she was directed by the court during her cross-examination dated 07.08.2018 to produce the accounts of the Trust. She thereafter, did not appear in the court and did not produce the accounts of the Trust. This court is of the opinion that such deliberate actions and inactions of the defendant amounted to gross financial misconduct.
23.7 Violation of order dated 23.07.2008 passed by Hon'ble High Court and Preventing Zakia Sultana to act as CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 66 of 79 :: 67 ::
Chairperson and Devyani Sircar to function as Managing Trustee - In the meeting dated 25.10.2005 Mark B & Ex.PW1/7, four of the trustees working in unison had designated Zakia Sultana as Chairperson and defendant had been directed to hand over the documents and properties of the Trust, i.e., the key & car, etc. to Zakia Sultana. However, the defendant never complied with that resolution of the Trust and thereby, prevented Zakia Sultana to work as Chairperson. Similarly, the Hon'ble High Court, vide order dated 23.07.2008, appointed Devyani Sircar as Managing Trustee. Defendant prevented Devyani Sircar to function as such. At the instance of defendant, Devyani Sircar was pushed and misbehaved within the Trust premises by one of the employee, namely, Ms. Preeti Chauhan.
23.8 Defendant in her own autocratic and absolutist style of functioning has deliberately and wantonly violated the directions passed by Hon'ble High Court of Delhi passed in its order dated 23.07.2008. Hon'ble High Court vide the aforesaid order in para- 94 directed as under:-
"94. In view of the above discussion, it is also directed that the defendant No. 1 shall, for the time being, continue as chairperson of the trust while Ms. Devyani CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 67 of 79 :: 68 ::
Sircar is appointed as an Observer who shall have the authority and perform all functions as are assigned to the Managing Trustee under the trust deed and the rules and regulations of the trust. This order shall continue till such time either both or these persons are substituted or removed in accordance with the stipulations of trust deed and the rules and regulations or by any further orders of this court, whichever is prior."
23.9 In her cross-examination when she was put a query that she did not let Ms. Devyani Sircar perform all functions as are assigned to the Managing Trustee, she explained that no work was assigned to her by the Board of Trustees and, she thus, tried to wriggle out of the directions passed by Hon'ble High Court.
24. For the reasons noticed above, issue no. 4 is decided in favour of the plaintiff and against the defendant.
Consequently, issue no. 5 is also decided in favour of the plaintiff and against the defendant. It is, thus, held that the misconduct of defendant was alarming and gross that her continuance in the Trust, as a Trustee shall be to be great detriment of the interest of the plaintiff/ Trust. However, simultaneous to holding defendant no.-1 liable to be removed CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 68 of 79 :: 69 ::
from her position as Chairperson & Trustee of the Trust, findings on issue no. 9 needs to be noticed.ISSUE NO. 9
9) Whether the defendant No. 1 was expelled from the Trust in a meeting held by the majoirty of the Trustees on 16.12.2005 in accordan e with the rules and regulation of the Delhi Mahila Samaj Trust? OPP 25.1 Rule 9 of the Rules & Regulations of the Trust empowers the Trustees to remove or expel another trustee from the board of Trustees on account of misconduct. For ready reference, Rule 9 is reproduced herein below;-
"9.If a Trustee is working against the interest of the Trust, the remaining Trustees by a majority of 2/3rd may by a resolution remove her after giving her, notice of the intention of the Trustees in writing and after taking into consideration representation from that Trustee if received in writing before the start of meeting of the Board in which it is proposed to remove her."
25.2 In order to exercise the power so vested in the majority Trustees, a notice dated 03.12.2015 (Ex.PW1/16) was served CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 69 of 79 :: 70 ::
upon the defendant by Chairperson Zakia Sultana. Defendant was called upon to attend the special meeting scheduled for 13.12.2005. She was notified the intention of Trustees to remove her name from the board of Trustees. She was also served notice dated 05.12.2005 (Ex.PW1/17) signed by three of the Trustees calling upon her to show cause as to why serious view be not taken of her misconduct mentioned in the show cause notice.
Agenda note dated 08.12.2005 of the Special meeting to consider removal of defendant from the board of trustees was also circulated. Copy whereof is Ex.PW1/18. After thus following the due process, meeting was held on 13.12.2005 duly attended by all the five Trustees. Though, the defendant and Dr. S.V. Saluja refused to sign the presence memo; noticing that no reply or representation was made by defendant, the matter regarding her expulsion was discussed in detail and it was found that her continuance as Trustee would not be congenial to the interest of the Trust and, therefore, by majority of the Trustees, she was expelled, vide minutes dated (Ex.PW1/19) duly signed by three of the Trustees namely Zakia Sultana, Devyani Sircar & Renu Talwani.
CS No. 8998/16Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 70 of 79 :: 71 ::
25.2.1The minutes of the meeting dated 13.12.2005 were again considered for confirmation in its meeting dated 16.12.2005 (Ex.PW1/20), which was attended by four of the aforementioned trustees and the defendant was removed from the post of Trustee of the Board of Trustees of the plaintiff Trust with immediate effect. Vide the same resolution, Ms. Devyani Sircar was appointed as Managing Trustee of the Trust with power to manage & administer day-to-day working of the Trust. She was also authorized to send a communication to the defendant about her removal from the Board of Trustees. Copy of the resolution so passed is Ex.PW1/21. The same was communicated to the defendant by letter dated 19.12.2005 (Ex.PW1/22) through speed post, receipt whereof is exhibited as Ex.PW1/22a. Thus, the plaintiffs by following due process, as provided for under the Rules & Regulations of the Trust had removed the defendant from the Board of the Trustees of the Trust. This court finds no irregularity or illegality in the proceedings so conducted.
Therefore, issue no. 9 is also decided in favour of the plaintiff and against the defendant. Thereby, holding that defendant stood removed as a Trustee on 16.12.2005.
ISSUES NO. 6, 7, 8 CS No. 8998/16Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 71 of 79 :: 72 ::
6) Whether the laitniff Nos. 2 & 3 and Ms. Devyani Sircar have been validly removed as Trustees of the Delhi Mahila Samaj Trust on 28.11.2005? OPD
7) Whether a Resolution was passed in accordance with the rules and regulations of the Delhi Mahila Samaj Trust by the majority of Trustees to appoint Late Mrs. Zakia Sultana as a Chairperson of the Trust in place of defendant No. 1 in a special meeting convened on 25.10.2005? OPP
8) Whether a resolution was passed by the majority of Trustees in accordane with the rules and regulations of the Delhi Mahila Samaj Trust confirming the appointment of Late Mrs. Zakia Sultana as a Chairperson of the Trust in place of defendant No. 1 on 11.11.2005? OPP
26. For the reasons discussed in paras no. 23.4 & 23.5., Issue no. 6, 7 and 8 are decided in favour of the plaintiff and against the defendant, thereby holding that the removal of plaintiffs no. 2 & 3 from the Board of Trustees was illegal, invalid & void ab-initio. Similarly, issues no. 7 & 8 also stand decided in favour of the plaintiff and against the defendant holding that the appointment of Zakia Sultana as Chairperson of CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 72 of 79 :: 73 ::
the Trust was in accordance with Rules & Regulations and after following of due process.
27.1 Before parting with the judgment, it shall be apposite to deal with an argument raised by counsel for the defendant, disputing the character of the plaintiff no.-1 as a Trust. Though, no issue was framed or sought to be framed by the defendant to this effect, yet arguments have been advanced. Referring to para no. 3(a) of the plaint, it is argued that Delhi Mahila Samaj is a Society registered, under the Societies Registration Act, on 29.06.1959. Since the plaint itself contains pleadings to this effect, it is argued that no evidence was required to be led by the defendant to prove that Delhi Mahia Samaj is a Society and not a Trust.
27.2 To answer the objection so raised by counsel for the defendant, the court need not travel beyond the Memorandum of Association Ex.P1, Trust Deed Ex.P2 and Rules & Regulations of the Trust Ex.P3. A study of the Memorandum of Association Ex.P1 of the Delhi Mahila Samaj reveals that the same is a Society registered under the Societies Registration Act,vide certificate No. S-1471/1959-1960 dated 29.06.1959. The Society CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 73 of 79 :: 74 ::
had been established with the object of bringing about social & economic reconstruction of society to provide greater opportunities to women to play a more significant role in all spheres of the life. The objects of the society were further to improve economic status of the women among others. The aforesaid Delhi Mahila Samaj Society in furtherance of its objects constituted the Trust, vide deed dated 12.05.1967 (Ex.P2). The Trust Deed specifically reads that Delhi Mahila Samaj, a Society, owns buildings situated in Bara Bazar, Kashmere Gate bearing no. 1064-1069 both inclusive. Accordingly, the Samaj in a general meeting of the Members held on 19.12.1966 resolved to create a Trust of the aforesaid building and unanimously declared five members to be the Trustees, thereof. Trust so constituted formed its Rules & Regulations (Ex.P3), which again declares in its aims & objects that the same has been constituted in advancement of the purposes of Delhi Mahila Samaj (Society registered under the Societies Act and founder of the Trust). Thus, the Delhi Mahila Samaj (Society) was the founder of the Trust called Delhi Mahila Samaj Trust. It is only on account of the similarity in nomenclature of the both, that confusion is sought to be created where it does not exist, by Ld. Counsel for the defendant. The CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 74 of 79 :: 75 ::
objection so raised as regards the nature of the plaintiff Trust is, thus, misconceived and is unceremoniously rejected.
27.3 Sh. R. Krishnamorthy has relied upon Vinod Kumar M. Malviya & Ors. Vs. Maganlal Mangaldas Gameti & Ors. 2013 (15) SCC 394 to argue that Society can be dissolved under Sections 13 & 14 of Society Registration Act. Reliance by Counsel for defendant on law laid down in this judgment is misplaced. As held above, the plaintiff is a Trust and not a Society registered under Societies Registration Act.
28.1 It may further be noticed that her conduct was also reported by Hon'ble Ms. Justice Usha Mehra, retired Judge of High Court of Delhi, who had been appointed as court Supervisor vide order dated 23.07.23008. HMJ Usha Mehra in her report dated 10.08.2011 reported as under:-
"3. Undersigned has observed that the Chairperson, Mrs. Rumma Shyam Sunder has adopted a unique self- styled policy of "pick and choose" from the staff(s) and the employee(s) for paying the salary. The salaries of the staff members and the employees who are directly under the supervision of the chairperson do not find any difficulty in getting the same. However, as regards the other staff and employees, the salaries are still due to be CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 75 of 79 :: 76 ::
paid but not paid since the Chairperson on all occasion refuses to sign the salary cheques of the said staff members. Even I am not taking any remuneration from October, 2010. The chairperson has not accepted even my efforts and requests as Court Supervisor."
28.2 This court in para-23 above has held that defendant was managing the affairs of the Trust in a manner which was prejudicial to the interests of the Trust. Her actions were vindictive and targeted against three of the Trust Members, who constituted the majority. Defendant has failed to demonstrate in any manner if the actions of plaintiffs were in any manner detrimental to the interests of the Trust.
28.3 Counsel for defendant has also relied upon law laid down in Swami Paramatmanand Saraswati's case (supra) and Vidyodaya Trust Vs. Mohan Prasad R. 2008 (4) SCC 115 to argue that relief under Section 92 CPC can be graned only for vindication of public interests and not for settling private or personal dispute. Reliance on these two judgments is misplaced. This court in para-23 has held that defendant was acting contrary and prejudicial to interests of plaintiff Trust whereas, plaintiffs had not in any manner misconducted themselves. Therefore, invoking powers under Section 92 CPC is perfectly justified and valid.
CS No. 8998/16Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 76 of 79 :: 77 ::
29. It may further be noticed that it has come up during the cross-examination of DW-1 that she appointed three more persons as Trustees, namely, Preeti Chauhan, Usha Rani and Lalita Sundaram during the pendency of the suit. Defendant has of course not placed on record any proceedings of the Trust whereby, these three persons were appointed as Trustees. Therefore, this court is of the opinion that though, there is no specific challenge to appointment of these three persons as Trustees yet, the same having come on record during evidence, the same also needs to be rectified. It is therefore, declared that appointment of Preeti Chauhan, Usha Rani and Lalita Sundaram which was also one of the unilateral acts of defendant, is illegal, invalid and void.
RELIEF
30. For the reasons discussed in paras 19 to 29, it is hereby declared that defendant stood removed as a Trustee by the Board of Trustees, vide its resolution dated 16.12.2005 (Ex.PW1/21). Further, this court endorses the resolution so passed by the Trustees and noticing the gross-misconduct of defendant, directs removal of the defendant Rumma S. Sunder from the Board of Trustees of the Trust for having acted against the interests of Trust. Defendant Rumma S. Sunder is also directed to deliver possession of the Trust properties to the surviving Trustees. Defendant is CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 77 of 79 :: 78 ::
further directed to render the accounts of the plaintiff Trust and make good the losses or the funds misappropriated by her. Having already been removed from the Board of Trustees and as a Chairperson of the Trust, Rumma S. Sunder is restrained from further projecting herself as a Member or as a Trustee or as a Chairperson of the Trust. The appointment of Preeti Chauhan, Usha Rani and Lalita Sundram as Trustees, is also held to be void. This court further declares Renu Talwani & Dr. S.V. Saluja to be the sole existing Trustees of the plaintiff Trust. They shall be within their rights to induct three more Trustees, so as to complete the numbers, as envisaged in the Trust Deed. Existing Trustees or the Trustees inducted by them after following due process, shall be the repository of all Trust properties including the bank accounts in Oriental Bank of Commerce, Bank of Inida and other Bank accounts in the name of Delhi Mahila Samaj, which have been opened by the defendant. Defendant is restrained from operating any of the bank accounts of the plaintiff/ Trust. Looking at the gross misdemeanor, misconduct by the defendant and deliberate violation of orders dated 23.07.2008 passed by Hon'ble High Court of Delhi the suit is decreed with costs, quantified at Rs.1 lac payable by defendant Rumma S. Sunder to plaintiff Trust. Plaintiff CS No. 8998/16 Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 78 of 79 :: 79 ::
through the surviving Trustees can take the help of police in re- possessing the Trust Property from the defendant.
31. Plaintiff has also moved an application under order XVI Rule 6 CPC seeking directions to summon the Manager of Axis Bank, Sector 46, Gurgaon Branch and to defreeze savings bank account number 918010061245427.
32. Since this court, vide the present Judgment has decreed the suit, this application is also allowed directing the Manager, Axis Bank, Sector 46, Gurgaon Branch, that savings bank account number 918010061245427 shall be operated only by the surviving Trustees, namely, Ms. Renu Talwani & Dr. S.V. Saluja or the Trustees, appointed by them, to the exclusion of defendant Rumma S. Sunder.
33. Suit is, accordingly, allowed. Decree sheet be prepared.
Digitally signed by
35. File be consigned to record room. NAROTTAM NAROTTAM KAUSHAL Announced in the open Court KAUSHAL Date:
th 2022.07.26
on this 26 day of July, 2022 12:24:29
+0530
(NAROTTAM KAUSHAL)
Principal District & Sessions Judge
South District: Saket Courts
26.07.2022 (v)
CS No. 8998/16
Delhi Mahila Samaj Vs. Rumma S. Sunder Page No. 79 of 79