Madhya Pradesh High Court
Mahesh Kumar Rathore vs Shri Nityananad Ashram Trust Thru. ... on 20 August, 2018
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
SINGLE BENCH:HON'BLE SHRI JUSTICE VIVEK RUSIA
M.A.No.634/2017
MAHESH KUMAR RATHORE
Vs.
SHRI NITYANAND ASHRAM TRUST, THROUGH
TRUSTEES MANUBAI PATEL & OTHERS
Shri A.M. Mathur, learned senior counsel with Shri
Vinay Puranik, Advocate for the appellant.
Shri A.K. Sethi, learned senior counsel with Shri Nitin
Phadke, Advocate for the respondent Nos.1 to 3 & 5 to 7.
Shri Sanjay Shukla, learned counsel for the respondent
No.4.
Shri Koustubh Pathak, learned GA for the respondent
No.8/State.
_______________________________________________
JUDGEMENT
(Delivered on 20/08/2018) The appellant has filed the present miscellaneous appeal under Order 43 Rule 1 read with Section 151 against the order dated 03.03.2017, passed by the Second Additional District Judge, Indore by which application under Order 40 Rule 1 read with Section 151 of the CPC for appointment of receiver/Interim Committee for management of the Trust and its property has been rejected.
Facts of the case in short for disposal of this appeal are as under:
That in the year 1975, Shri Nityanand Ashram Trust (in short, hereinafter referred as "the Trust") was established & thereafter, registered by the Registrar under the Madhya Pradesh Public Trust Act, 1951 (for short, hereinafter referred as "the Act") on 18.05.2007. At the time of its registration, as per Clause 5 of the trust deed the trust had 9 trustees. The normal tenure of the Trustee is 5 years only. On 10.06.2007, two additional trustees were inducted in the trust and the total number of trustees became 11. The necessary information was sent to the Registrar, Public Trust under Section 9 of the Act.
On 08.09.2014, a meeting was called in which resignation of the Trustee named Mr. Chandra Shekhar Rawat was accepted and 9 new trustees were inducted. Thereafter information under Section 9 was also sent to the Registrar, Public Trust. That on 02.10.2014, 5 trustees held the meeting and declared the resolution dated 08.09.2014 as illegal on the ground that the said meeting was not called by and without permission of the President resolution was passed. Thereafter, these 5 trustees filed a complaint to the Collector on 01.10.2015 followed by other complaints dated 23.11.2015 and 26.11.2015. On 16.12.2015, a complaint was made to the Commissioner also by 3 trustees. On a complaint dated 20.04.2016, the Commissioner directed the Naib Tehsildar to enquire into the matter and submit the report. The Naib Tehsildar conducted the enquiry and submitted the report on 11.05.2016 to the Commissioner. On 09.06.2016, the SDO, Dhar/Registrar after considering the complaints and other documents submitted a detailed enquiry report in respect of irregularities committed by the respondent No.1 and the Registrar to the Commissioner. In pursuant to the said report, the Commissioner issued a direction to the Collector for taking appropriate action against the Trustees of the Trust.
Being aggrieved by the aforesaid direction, a Writ Petition No.4413/2016 was filed before this Court by the respondents. After arguments at length in the writ petition, a consensus has been arrived between the parties that the Registrar ought to have referred the dispute to the Civil Court under Section 26 of the Act instead of passing any order. Accordingly, by order dated 02.08.2016, the writ petition was disposed of by setting aside the letter dated 14.06.2016 and order of the Collector dated 09.06.2016 with the direction to the Registrar, Public Trust/SDO, Dhar to refer the dispute to the Civil Court for adjudication.
In compliance of the aforesaid order, the SDO has referred the dispute under Section 26 of the Act to the Civil Court on 24.09.2016.
In the pending proceedings before the Civil Court, on 09.11.2016, the present appellant filed an application under Order 40 Rule 1 read with Section 151 of the CPC seeking appointment of receiver/Committee comprising of the trustees for the purpose of running the activities of the Trust and management of the trust properties. The application was opposed by the respondents by filing a detailed reply. The Additional District Judge by way of detailed order dated 03.03.2017 has rejected the application. Being aggrieved by the aforesaid order, the appellant has preferred this appeal before this Court.
Shri A.M. Mathur, learned senior counsel appearing on behalf of the appellant vehemently argued that the SDO in its report has recorded findings against the President and the Treasurer that they have committed various financial irregularities in respect of the fund and property of the Trust. The learned Court has failed to appreciate a fact that the President and the Treasurer are illegally taking donations and issuing receipts in the name of Nityanand Bhakt Mandal which is an unauthorized organization being run parallelly by them. They have got constructed a Temple at Village Padsutiya, Ujjain in the year 2001 from the amount of donation and shown it any the accounts of the year 2014. The Tehsildar as well as the SDO in their enquiry have found proved that the fund of the Trust had been misused by them, therefore, the learned Additional District Judge ought to have appointed a receiver or independent Committee comprising the trustees having no allegations, for the management of the Trust in order to save the property. Hence, the impugned order is liable to be set aside and application under Order 40 Rule 1 read with Section 151 of the CPC is liable to be allowed by this Court. In support of his contention he has placed reliance over the judgement passed in the case of Mahant Charandas Vs. Registrar, Public Trust, reported in 1990(I) MPWN, 345.
Shri A.K. Sethi, learned senior counsel appearing on behalf of the respondent Nos.1 to 3 & 5 to 7 raises objection about the maintainability of this appeal that appeal is not maintainable against the interlocutory order. On merit, it is submitted that appointment of the receiver is a matter of discretion of the Court. The allegations made in the compalint and application filed under Section 26 & 27 of the Act are yet to be established and proved by the complainant before the Civil Court. Since last 2 years, there is no substantive progress in the proceedings pending under Section 26 of the Act. The complainant is only interested in appointment of the receiver or the committee. He is not interested in the early disposal of the proceedings under Section 26 of the Act. The trust is being managed properly by the trustees and the accounts are being audited by the Chartered Accountant. The Registrar, Public Trust is competent to examine audit the and account books of the Trust under Section 22 & 23 of the Act. In support of his contention, he has placed reliance over the judgement passed by the apex Court in case of Gokaraju Rangaraju Vs. State of A.P., reported in AIR 1981 SC 1473 and the judgement passed by the Madras High Court in case of Krishnaswamy Vs. Thangavelu, reported in AIR 1995 Madras 430, Sudhansu Kanta Vs. Manindra Nath, reported in Laws (PAT) 1964 103, Skyline Education Institute Pvt. Ltd. vs. S.L. Vaswani & Others, reported in AIR 2010 SC 3221, Wander Ltd. & Others Vs. Antox India Pvt. Ltd, reported in 1990 Supp(1) SCC 727 & S.Saleema Bi Vs. S.Pyari Begum and Others, reported in AIR 2000 SC 3513.
Shri Shri Sanjay Shukla, learned counsel for the respondent No.4 argued in support of appellant that the application filed under Order 40 Rule 1 read with Section 151 of the CPC is based on the enquiry report dated 09.06.2016 submitted by the SDO. According to the appellant, the Sub Registrar has found various irregularities in respect of the resolution, minutes of the meeting recorded in the Register, cash book, leisure, receipt etc. On the basis of the report, the Registrar, Public Trust is competent to direct working trustees to approach the civil Court or he himself can refer the dispute to the Civil Court for adjudication. The powers under Section 26 of the Act are very limited only to the extent of reference of dispute to the Civil Court, therefore, the report submitted by the SDO is not conclusive in nature and that allegations and findings in the report are yet to be examined by the civil Court.
Even otherwise, the allegations against the present trustees are pertaining to the year 2001. According to the appellant and the other complainants, the amount of Rs.5,10,000/- was utilized in construction of Temple and the entries were made in the cash book. In entire report, there is no finding in respect of irregularities or mismanagement by the trustees in the recent years. Normally, the Court appoints the receiver where the plaintiff or complainant show some emergency or danger or loss of demanding immediate action of his own right or the property in subject matter. The element of danger is an important consideration. The High Court of Madras has laid down the 5 requirements which the Court must consider while passing an order for appointment of receiver which are as follows:
"1. The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.
2. The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has very excellent chance of succeeding in the suit.
3. Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt. The element of danger is an important consideration.
4. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one.
5. The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application, and will usually refuse to interfere unless his conduct has been free from blame."
Therefore, there is no allegation or finding in the report in respect of immediate danger to the property and misuse of the funds in the current years, hence, on the basis of allegations in respect of some incident took place in the year 2001 which is yet to be established by the complainant before the Civil Court, learned court below has rightly rejected the application for appointment of receiver.
Shri A.K. Sethi, learned senior counsel appearing on behalf of the respondent Nos.1 to 3 & 5 to 7 has rightly pointed out that the dispute was referred to the District Court on 23.09.2016 and two years have been passed the complainant/appellant has not taken any interested for early disposal within two months. He filed an application under Order 40 Rule 1 read with Section 151 of the CPC on 09.11.2016. Instead of filing the application he could have produced material in support of allegations. He is interested only in appointment of a new receiver not in early disposal of the proceedings pending under Section 26 of the Act.
In view of the above, no case for interference with the impugned order is made out, hence, appeal is accordingly dismissed.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2018.08.20 18:09:33 +05'30'