Delhi District Court
Federation Of Ophthalmic Research And ... vs Indira Gandhi National Open University on 31 August, 2018
In the court of Sh. Munish Markan, Additional District Judge01,
(South) District Courts, Saket, New Delhi
CS No.8721/16
CNR No.:DLST010035292016
Federation of Ophthalmic Research and Education
Centres India (FOREC), a society registered
under the Societies Registration Act, 1860 having
its office at M1/C2, Lajpat Nagar III, New Delhi
110024
Through Dr. N. K. Pattnaik, its Secretary ...... Plaintiff
Versus
1.Indira Gandhi National Open University having its office at Maidan Garhi, New Delhi - 110068 Through Sh.V. N. Rajasekharan Pillai, its Vice Chancellor
2. Sh.V. N. Rajasekharan Pillai, Vice Chancellor, Indira Gandhi National Open University, Maidan Garhi, New Delhi - 110068
3. Vision 2020, a society stated to be registered under the Societies Registration Act, 1860 having its National Secretariat at S390, Double Storey, Ground Floor, New Rajinder Nagar, New Delhi - 110060 Through Ms.Tanuja Joshi, its Secretary CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 1/31
4. Sh. P. K. M. Swamy, National Executive Director, Vision 2020, S390, Double Storey, Ground Floor, New Rajinder Nagar, New Delhi - 110060 ........... Defendants Date of institution : 17.12.2007 Date reserved for judgment : 27.08.2018 Date of pronouncement of judgment : 31.08.2018 Decision : Dismissed.
Suit for declaration, permanent and mandatory injunction and rendition of accounts J U D G M E N T
1. The plaintiff society which has entered into a memorandum of collaboration dated 17.03.2004 (hereinafter called MOC) with defendant no.1, inter alia, to jointly develop strategies for design, development and implementation of Diploma, Degree and Post Graduate programme for ophthalmologist and plaintiff has sought declaration to the effect that the letter dated 13.06.2007 issued by defendant no.1 directing the plaintiff to enter into a tripartite agreement with defendant no.3, and another letter dated 17.09.2007 issued by defendant no.1 terminating the MOC dated 17.03.2004 are illegal, arbitrary and void and thereby sought the declaration that the MOC dated 17.03.2004 is valid and subsisting. Plaintiff had further prayed for decree of mandatory injunction against defendants CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 2/31 no.1 and 2 to direct them to constitute the monitoring and implementation committee (hereinafter called MIC) in accordance with MOC dated 17.03.2004 and to permit the plaintiff and its representatives to take part in the ventures and meetings of MIC till the MOC dated 17.03.2004 is terminated in accordance with law. Plaintiff has further prayed decree of permanent injunction against defendants no.3 and 4 or their representatives to restrain them from taking part or interfering in the joint venture of defendant no.1 in the B. Sc (Hons) 4 years course in Optometry and ophthalmic techniques or any other course as provided in MOC dated 17.03.2004. Further plaintiff prayed for preliminary and final decree of rendition of account against defendant no.1. (At the outset it is clarified that the reliefs of mandatory and permanent injunction were deleted at the time of final arguments at the request of plaintiff counsel on the ground that the programme has since long been discontinued by defendant no.1.) CASE OF THE PLAINTIFF
2. The case of the plaintiffs is that it is a federation of 106 Ophthalmic Research and Education Centres set up by Late Professor Sh.L. P. Aggarwal, the ExDirector of AIIMS, spread throughout the country and established in the year 1994 and is a duly registered society and suit has been filed by Dr. N. K. Patnaik, its secretary who is authorized by the President of the society Dr. R.B. Azad vide authority letter dated 01.12.2007. Defendant no.1 is a statutory body and works in the field of distance learning in education and defendant no.2 is its Vice Chancellor.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 3/31Plaintiff and defendant no.1 entered into a memorandum of collaboration dated 17.03.2004 (MOC), inter alia, to jointly develop strategies for design, development and implementation of Diploma, Degree and Post Graduate programmes for Ophthalmologist. The principal institutes of the plaintiff federation are hospitals and other premier institute running Post Graduate, Graduate, Diploma and paramedical Courses in Ophthalmology. Since the plaintiff had experience and conducting the Diploma courses, the defendant no.1 had approached the plaintiff federation for starting a B. Sc.(Hons) 4 years degree course in Optometry and ophthalmic techniques through distance learning in the year 2003 which eventually led to the execution of the MOC dated 17.03.2004 whose main objects were to participate in the process for implementation of national programme for prevention of blindness, reduction of visual disability and to jointly promote and conduct technical Diploma, Degree and Post Graduate programme in Ophthalmic Techniques and Ophthalmology with focus on resource sharing, collaboration and partnership leveraging the expertise of each other. The distance education material for Ophthalmic Technician Training Programme were to be developed jointly for the FOREC (plaintiff) and IGNOU (defendant no.1) with the expertise of FOREC in Ophthalmology and the experience of IGNOU in distance education.
3. Plaintiff further stated that as per clause 4 of the MOC dated 17.03.2004, all the revenues were to be shared by the plaintiff and defendant no.1 equally. For effective working of collaboration, a CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 4/31 monitoring and implementation committee (hereinafter called MIC) was constituted with Vice Chancellor of IGNOU and President of plaintiff as CoChairman and two nominees each of plaintiff and defendant no.1. Since the efforts of collaboration will be available after years of toil and hard work, therefore, the arrangement was kept in force for 5 years until either parties wishes to withdraw for good and sufficient reasons by giving a notice of 3 months in writing and in the absence of any notice for withdrawal, the MOC shall stand extended for period of 5 years, every 5 years. The joint collaboration visualised equal rights and duties for plaintiff and defendant no.1. Immediately after signing of MOC dated 17.03.2004, plaintiff constituted a team of experts in ophthalmology and started in earnest to implement the collaboration. Meetings of MIC were periodically held i.e. at least one meeting per month where strategies were worked and to begin with, it was decided to start B.Sc (Hons) degree in Optometry and Ophthalmic techniques by way of distance learning under the auspices of IGNOU, under the collaboration. The project which was to be jointly sponsored by plaintiff and defendant no.1 was to be implemented through Programme Study Centres (PSCs) and Work Centres (WC). The PSCs were to be run by larger hospitals with facilities for 20 to 40 students whereas work centres (WCs) were to be allotted to Nursing Homes with facilities to about 5 students which would benefit smaller institute members of plaintiff in advancing the distance learning in degree course. Plaintiff and defendant no.1 started identifying the institutes.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 5/314. Plaintiff further stated that in the meeting of MOC held on 08.11.2004, it was communicated that the option of fee sharing would be communicated to the plaintiff later on. In the meeting of MIC dated 10.12.2004, it was decided to launch the degree programme in January 2005 and had entailed providing technical support by the plaintiff including students support services and payments to their member institutions to be borne by the plaintiff out of their share. In pursuance thereto, the plaintiff sent MOU to their member institutes, prepared student hand books and prospectus and ordered 500 sets of the books from the publishers promptly. The work shops of the course writers were also held on 27.05.2005, 28.05.2005, 30.03.2006 and 31.03.2006 and the course writers prepared the material unit wise and the complete study material for the first year of the B.Sc (Hons) programme were sent to the defendant no.1 in CD, floppy and the printed version with letter dated 21.07.2005. Data was sent to defendant no.1 for the second year with letter dated 26.07.2006 and the final version was sent vide letter dated 28.07.2006 to the defendant no.1 (IGNOU). During the aforementioned workshops it was orally agreed that course writers fee would be paid per unit as per the norms applicable to the IGNOU but it was not done by the defendant no.1 despite repeated requests by the plaintiff. Further, in the meeting of MIC dated 30.08.2006, it was decided that advertisements would be published by the IGNOU and FOREC at their own expenses to publicize and promote the degree programme and the course was to commence in November 2006.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 6/315. Plaintiff further stated that once the course started taking shape and was in its final stage, the defendant started devicing means to reduce the role of the plaintiff in the decision making in the MIC meetings but in the MIC meeting dated 30.08.2006, the treasurer of plaintiff was not invited and in the said meeting, defendant no.1 unilaterally reconstituted the MIC with two members from the plaintiff and defendant no.1 each and one member from Ministry of Health and Family Welfare, two persons from Rajender Prasad Eye Centre and one member to be coopted from other Ophthalmic/ Ophthalmology Institutions which are not the members of the plaintiff, in violation of the MOC dated l7.03.2004, in order to reduce the role of the plaintiff significantly despite the fact that plaintiff had spent funds and efforts and the name of the committee was also changed to Advisory Committee. Despite that, the plaintiff took out the advertisements in the newspaper in September 2006, spent a sum of Rs.2,25,080/. Inspite of the technical work done by the plaintiff, defendant did not complete its administrative work in connection with the launch of the B.Sc (Hons) programme, including the printing of the course material and therefore, extended the last date for submission of the application upto 31.10.2006 and postponed the commencement of the course to January 2007.
6. Plaintiff further stated that the students who had applied had paid Rs.18,000/ as annual fees and Rs.5000/ as refundable security deposit and plaintiff vide letter dated 22.01.2007, asked the defendant no.1 CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 7/31 to start the course immediately. However, in the meeting of the MIC dated 28.02.2007, the defendant no.4 was also invited though he was not qualified Ophthalmologist, as a member of the committee on behalf of defendant no.2 and in the said meeting, defendant no.2 being the Vice Chancellor of defendant no.1, unilaterally and arbitrarily decided to include Vision 2020 as part of the programme in launching B. Sc. (Hons) programme and also reconstituted the MIC and the members of the plaintiff were totally sidelined. In the subsequent meeting of MIC dated 13.03.2007, two more persons Sh.Ashok Shiv Hare and Sh.Lalit Mohan who were not having any Ophthalmic qualifications were also invited as special invitees on behalf of Vision 2020. Plaintiff also sent a letter dated 16.03.2007 and 07.05.2007 to the defendant no.2 seeking the appointment and to explain their view point and to sort out the matter. In pursuance to which, at the insistence of defendant no.2, the Office Bearer had met Dr. S. B. Arora on 14.05.2007 but their grievance were not redressed. Since only 12 Programmes Study Centres were activated and only 50 students took admission, the admission date was further extended to 15.06.2007.
7. Plaintiff stated that it also wrote letters dated 30.05.2007 and 07.06.2007 to defendant no.2 regarding its grievance but defendant no.2 threatened to remove the plaintiff from project altogether. Vide letter dated 13.06.2007 sent by the defendant no.1 at the instance of defendant no.2 to the plaintiff, it unilaterally approved to sign new Tripartite MOU between the plaintiff and defendant no.1 and Vision 2020 and asked the plaintiff to CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 8/31 contact Dr. S. B. Arora to draft a fresh MOU. Plaintiff sent a reply dated 15.06.2007 and strongly objected to the involvement of defendants no.3 and 4 as they were not having any experience or infrastructure to hold the programme and were creating hindrance in launching of the programme. Plaintiff reiterated its objections in subsequent letter dated 19.06.2007 and subsequent meeting dated 21.06.2007 held by defendant no.2 wherein the matter relating to the course were discussed but there was no discussion regarding the execution of the Tripartite Agreement. A new committee was also formed on 21.06.2007 wherein defendant no.4 was also inducted as a member and finally 12 Programme Study Centres were approved in which 125 students were admitted in the course which was to commence in July 2007, out of which 8 PSCs were of plaintiff and 4 were mobilized by the defendant no.1 but the defendant no.1 did not approve even the single Work Centre on the ground of less number of students. Each student had paid Rs.18,000/ only as fee and Rs.5000/ as refundable security deposit. Plaintiff wrote letters dated 19.06.2007 and 22.06.2007 to defendant no.1 to approve the PSCs and WCs and again sent letters dated 29.06.2007, 13.07.2007. Plaintiff also sent letter dated 26.07.2007 to the defendant to let the member institute to purchase the first year course material to prepare the candidate for the ensuing year which was arbitrarily turned down by the defendant no.1. The B.Sc (Hons) was launched in July 2007 with 125 students admitted in 12 Programme Study Centres. The core Committee meeting held on 30.07.2007 was heavily skewed towards nominees of defendant no.1. Plaintiff wrote letter dated 01.09.2007 forwarding the list CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 9/31 of proposed PSCs and WCs among its members to defendant no.1 to consider. However, defendant no.1 vide letter dated 07.09.2007 convened a meeting of Core Committee on 14.09.2007 to review the progress and status of the programme and other matters etc wherein defendant no.2 unilaterally terminated the MOC dated 17.03.2004 with immediate effect without disclosing any reason which was conveyed to the plaintiff vide letter dated 17.09.2007. Plaintiff vide letter dated 26.09.2007 again annexed the course material for the second year and also requested the defendant no.1 to release the payment due to the Course Writer pending for the long time.
8. Plaintiff stated that subsequently, in the meeting held on 01.11.2007, it was informed that the plaintiff could not be permitted to participate in the programme in future. It is alleged that defendant no.3 has conspired with the defendant no.2. Courses no.3 and 4, Basic Home Science and Basic Ocular Sciences were developed solely by the efforts of the plaintiff through its team of experts and the courses for the second year were prepared and submitted in CD Rom and Hard Copy by defendant no.1 which are yet to be printed and they would be requiring the course material for the third year commencing in July 2009 and defendant no.3 is neither a body of Ophthalmologist nor having any experience of education in Optometry and Ophthalmic Techniques and are mere intruders.
9. It is alleged that defendant no.1 have no right to terminate the MOC and the letters dated 13.06.2007 and 17.09.2007 are illegal and void.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 10/31Hence the present suit.
10. Joint written statements was filed by the defendants no.1 and 2 wherein it took the defence that suit has not been properly valued for the purpose of court fees and jurisdiction as has been valued Rs.21 lakh but but for the valuation for the purpose of relief of rendition of account, court fee of only Rs.20/ has been paid. Plaint is silent as to how the said value is arrived at. The suit is hit by Section 41 (h) of the Specific Relief Act as the plaintiff is seeking the enforcing the terms of memorandum of collaboration dated 17.03.2004 for which proper remedy is suit for specific performance. Plaintiff has not disclosed that it has filed the writ petition no.8855/07 which was dismissed on 30.11.2007 and has filed the forged and fabricated documents by scanning the signature of the registrar of the defendant university. They admitted the execution of the memorandum of collaboration dated 17.03.2004 but stated that the same was executed with Dr. L. P. Aggarwal Expresident of the plaintiff who was a renowned personality in the field of Ophthalmology and Ophthalmic Sciences and Late Dr. L. P. Aggarwal had kept the original copy of the agreement with him and filed, sent a xerox copy of agreement to the defendant university. It admitted the joint development of the strategies for starting and implementing the B. Sc (Hons) programme but stated that after the death of Dr. L. P. Aggarwal, the plaintiff society did not give the requisite support and even the Study Material could not be prepared in time because of this reason. Earlier, it was decided to use the series of books developed by CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 11/31 Sh.L. P. Aggarwal on the subject but later on same was refused. Defendant attributed the delay in commencing of the programme from January 2005 to July 2007 upon the plaintiff.
11. Defendant denied that plaintiff is society duly registered under the Society Registration Act and Sh. N.K. Pattnaik is the Secretary or he has been authorized by Dr. R. V. Azad stated president of the society. It denied that plaintiff and defendant no.1 university were to have equal rights and duties. It denied the active role as alleged by the plaintiff in the plaint. The defendant university had incurred huge expenditure for starting said course but the plaintiff neglected to perform its duties and obligation under the Collaboration Agreement dated 17.03.2004 and therefore, the said Collaboration was terminated. It denied that plaintiff prepared the students hand book and prospectus for the B. Sc (Hons) course and stated that same were got printed by the defendant university and plaintiff purchased 500 copies for the sale after making the payment to the defendant university. It is stated that it had already made the payment to the course writers. Defendant denied the expertise of the plaintiff in the field of ophthalmology and optometry and stated it had incurred entire expenditure in publishing and advertisement and promoting the new course. It admitted the holding of the periodical meeting of the MIC.
12. Defendant also denied the unilateral reconstitution of the MIC on 30.08.2006 and stated the advisory committee was constituted to facilitate the implementation of the new course. He denied the incurring of CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 12/31 the expenditure of Rs.2.25 lakh by the plaintiff on its advertisements as alleged by the plaintiff and stated that the preparation of the course material, prospectus and advertisements all was denied at the instance of defendant university and plaintiff has no concern with the same. Further, vision 2020 is a forum comprising of the leading institutions engaged in the teaching and training of Ophthalmic and eye specialists from leading institutions and therefore, defendant no.4 in his capacity as Executive Director of defendant no.3 was asked to attend the said meeting apart from two other experts Sh.Lalit Mohan Singh and Sh.Ashok Shiv Hare as subject invitees. However, defendants no.3 and 4 were not a part of the core group. Defendant denied the allegations of corruption and stated that many eye care institutions affiliated to defendant no.3 have conducted these courses for long time and has done plenty of work and experience in the field of education relating to Ophthalmic and Optometry education. Defendant denied the interference of defendants no.3 and 3 in any manner in the commencing of the said programme. Even as per the minutes of meeting held on 08.11.2004, it was decided by the plaintiff and defendant no.2 to constitute a monitoring committee by coopting members from other institutions which are not members of the plaintiff and at that time, defendants no.3 and 4 did not participate in the said meeting and therefore, the coopting of defendant no.4 as representative of defendant no3 was authorized as per the decision taken on 08.11.2004. Even as per the minutes of meeting held on 28.10.2004 a joint Coordination Committee was proposed to be constituted on the said date.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 13/3113. Defendant stated that vide minutes of meeting held on 28.02.2007, joint cooperation committee (NJCC) was proposed to be constituted and was subsequently constituted which had representatives apart from plaintiff and defendant no.1, from Venue Eye Hospital and R.P. Centre etc. The committee further constituted the core group but there was no representative of the defendant no.2 & 3 in the said core group. No tripartite agreement was signed by the defendant in the meeting held on 21.06.2007. A committee was constituted to look into the study material for 2nd, 3rd and 4th year and to recommend the names of the course writers and editors which comprised Dr. R. Jose, Director General, Dr. Gopal K. Das, Professor of Opthalmology, GTB Hospital apart from representative of plaintiff and defendant no.1 and defendant no.3. No unilateral decision in identifying PSCs was taken. The copy right in the study material produced, published by IGNOU lies with the university as the university has already made the requisite payments to the course writers. No prejudice and bias was shown against the plaintiff and defendant denied that committee was packed with nominees of IGNOU. Defendant stated that memorandum was terminated for well founded and valid reasons and there was no conspiracy between the defendant no.2, 3 and 4. The expenditure for the first year course material was entire borne by the university and second year material could not be received due to unnecessary disputes created by the plaintiff. Defendant denied that plaintiff has incurred any expenditure and prayed for dismissal of the suit.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 14/31WRITTEN STATEMENT OF DEFENDANT NO.3:
14. Written statement filed by defendant no.3 was adopted by the defendant no.4 as well wherein it stated that defendant no.3 & 4 were not a party to the memorandum/agreement executed between the plaintiff and defendant no.1 & 2. Defendant no.3 is a well known organization functioning with govt. of India, WHO and other national and international NGO's and is part of the global initiative for the elimination of avoidable blindness and is a not for profit society. The membership of defendant no.3 comprised prominent eys care institutions all over India as well as internationally and defendant no.3 was invited by defendant no.1 to collaborate in purely advisory capacity to establish uniform standards in the design development and implementation of opthalmic paramedic courses offered by it. Defendant no.4 has resigned and is no longer associated with defendant no.3. Defendants denied the case of the plaintiff and prayed for dismissal of the suit.
15. Plaintiff filed the replications to the written statement of defendant no.1,2 and 3 wherein it reiterated its case as made out in the plaint. Plaintiff further stated that the original of the MOC dated 17.03.2004 is with the defendant and stated that writ petition was dismissed as withdrawn and the original MOC was not kept by Professor L.P. Aggarwal as alleged .
16. During admission/denial, defendant admitted 7 documents filed by the plaintiff which are Ex.P1 to Ex.P7.CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 15/31
17. From the pleadings of the parties, following issues were framed.
ISSUES:
1. Whether the plaintiff is entitled to a declaration that letters dated 13.06.2007, 17.09.2007 and 17.03.2004 issued by defendant no.1 are illegal, and if so, the Memorandum of Collaboration dated 17.03.2004 is valid and subsisting? OPP
2. Whether the plaintiff is entitled to revenue sharing in the ratio of 50:50 under the Memorandum of Collaboration dated 17.03.2004?
OPP
3. Whether the plaintiff is entitled to mandatory injunction, directing defendant no.2 to implement the Memorandum of Collaboration dated 17.03.2004 till such time it is validly terminated? OPP
4. Whether the plaintiff is entitled to permanent injunction against defendant no.3 and 4 from taking part or interfering in the Joint Venture between the plaintiff and defendant no.1 in B.Sc. (Hons) 4 years course in Optometry & Ophthalmic Techniques or Other course under the Memorandum of Collaboration dated 17.03.2004? OPP
5. Whether the plaintiff is entitled to a decree for rendition of accounts by defendant no.1? OPP
6. Whether the suit is not properly valued for purpose of court fee and jurisdiction? OPD
7. Whether the relief of injunction sought by the plaintiff are barred under Section 14 and 41(h) of the Specific Relief Act, 1973? OPD1 CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 16/31
8. Whether the suit is not maintainable under Section 14, 16 and 41
(e) of the Specific Relief Act, 1973? OPD3
9. Whether the suit is bad for misjoinder of parties, namely defendant no.2 to 4? OPDs
10. Whether the plaintiff is not registered under the Societies Registration Act, 1860 and has no locus standi to file the suit? OPD1.
11. Relief.
18. During plaintiff evidence, plaintiff examined only one witness PW1 Dr. N.K. Pattnaik who tendered his affidavit as Ex.PW1/X and relied on following documents: Ex.PW1/1 to Ex.PW1/37 and Mark A to Mark W. Ex.PW1/1 is the copy of the Registration Certificate of the plaintiff society.
Ex.PW1/2 is the letter of authority letter dated 01.11.2007. Ex.PW1/3 - Letter dated 04.01.2001 written by the Secretary of plaintiff to the Director School of Health Science IGNOU.
Ex.PW1/4 - Letter dated 09.03.2005 written by the defendant no.1 to the plaintiff regarding advisory group meeting.
Ex.PW1/5 - Material of the course writer's workshop. Ex.PW1/6 Receipt of 6 CDs, 1 floppy and 3 files on behalf of defendant no.1 sent by the plaintiff.
Ex.PW1/7 - Letter dated 17.03.2006 sent by defendant no.1 to the plaintiff CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 17/31 regarding course writer's workshop.
Ex.PW1/8 - Letter of the plaintiff addressed to Dr. S.B. Arora regarding submissions of second year course material dated 26.07.2006. Ex.PW1/9 & Ex.PW1/10 - Letters dated 28.07.2006 and 23.06.2006 sent by one Anshu Sahai to the plaintiff and defendant no.1 respectively. Ex.PW1/11 - Letter dated nil written by the Secretary plaintiff to Dr. S.B. Arora recommending the name of Dr. R.V. Azad and Anshu Sahai to be included in advisory committee meeting.
Ex.PW1/12 - Minutes of meeting of advisory committee dated 30.08.2006.
Ex.PW1/13 - Letter dated 10.10.2006 sent by the plaintiff to the defendant no.1.
Ex.PW1/14 - letter dated 22.01.2007 sent by the plaintiff to the defendant no.2 asking urgent appointment.
Ex.PW1/15 - Minutes of meeting dated 28.02.2007.
Ex.PW1/16 - Minutes of meeting dated 13.03.2007.
Ex.PW1/17 - Letter dated 16.03.2007 sent by the plaintiff to defendant no.2.
Ex.PW1/18 - Letter dated 28.03.2007 sent by the plaintiff to defendant no.2 and others.
Ex.PW1/19 - Letter dated 07.05.2007 sent by the plaintiff to defendant no.2.
Ex.PW1/20 - Minutes of meeting dated 14.05.2007.
Ex. PW1/21 - Letter dated 30.05.2007 sent by plaintiff to defendant no.1.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 18/31Ex.PW1/22 - Letter dated 07.06.2007 sent by plaintiff to defendant no.1. Ex.PW1/23 - Letter dated 15.06.2007 sent by Dr. S.B. Arora to the plaintiff.
Ex.PW1/24 - letter dated 13.06.2007 sent by defendant to the plaintiff. Ex.PW1/25 - Letter dated 19.06.2007 sent by plaintiff to defendant no.1. Ex.PW1/26 - Minutes of meeting of advisory committee dated 21.06.2007. Ex.PW1/27 - Letter dated 26.06.2007 written by S.B. Arora to plaintiff sending minutes of meeting dated 21.06.2007.
Ex.PW1/28 - Letter dated 22.06.2007 sent by plaintiff to Dr. S.B. Arora. Ex.PW1/29 - Letter dated 29.06.2007 sent by plaintiff to Dr. S.B. Arora. Ex.PW1/30 - Letter dated 13.07.2007 sent by Dr. N.K. Pattnaik to Vice Chancellor, plaintiff.
Ex.PW1/31 - minutes of meeting dated 30.07.2007.
Ex.PW1/32 - Letter dated 01.09.2007 sent by plaintiff to School of Health Sciences.
Ex.PW1/34 - Letter dated 31.10.2007 sent by plaintiff to Dr. S.B. Arora. Ex.PW1/35 - Report of Intercountry Consultation on Development of Regional Strategies Jakarda 1417 February 2000 Ex.DW1/3 - Letter dated 13.09.2007 for termination of MOC dated 17.03.2004.
Mark M. Letter dated 15.06.2007 written by plaintiff to defendant no.1. Mark N - list of programme study centres of BSCHOT Mark O - Letter dated 26.07.2007 written by plaintiff to defendant no.1. Mark P - Programme Study Centres/work Centres.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 19/31Ex.P1 Letter dated 14.12.2004 written by the defendant no.1 to the plaintiff.
Ex.P2 Letter dated 09.10.2006 sent by plaintiff to defendant no.1 regarding extension of the last date for submission of the application form for BSc. Hons. Course.
Ex.P3 - Letter dated 20.03.2007 sent by the defendant no.1 to the plaintiff sending the minutes of meeting dated 13.03.2007.
Ex.P4 - Letter dated 06.03.2007 sent by the defendant no.1 to the plaintiff sending the minutes of meeting dated 28.02.2007.
Ex.P5 Ex.P6 Letter dated 03.08.2008 sent by defendant no.1 to the plaintiff. Ex.P7 Letter dated 07.09.2007 sent by plaintiff to Dr. S.B. Arora.
19. During defendant evidence, defendant examined one witness DW1 Prof. S.B. Arora, Vice Chancellor (I/C) IGNOU who tendered his affidavit as Ex.DW1/A and relied upon documents i.e. Authority Letter Ex.DW1/1, Copy of Collaboration Agreement dated 17.03.2004 as Mark PW1/DX1, Copy of Minutes of Meeting dated 28.02.2007 Ex.DW1/X, Letter dated 13.06.2007 sent to plaintiff as Ex.DW1/2 and Letter dated 17.09.2007 as Ex.DW1/3.
20. I have heard Ld. Counsel for both the parties and gone through the record carefully. The issue wise findings of the court are as under. FINDINGS OF THE COURT ISSUE No.1 CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 20/31
1. Whether the plaintiff is entitled to a declaration that letters dated 13.06.2007, 17.09.2007 and 17.03.2004 issued by defendant no.1 are illegal, and if so, the Memorandum of Collaboration dated 17.03.2004 is valid and subsisting? OPP
21. Plaintiff as well as defendants no.1 and 2 had admitted that a memorandum of collaboration dated 17.03.2004 was executed between them. However, none of the parties has placed on record the original memorandum of collaboration. Plaintiff has placed on record photocopy of the memorandum of collaboration Mark A and the defendants have also placed on record photocopy of another MOC which is Ex.PW1/DX1. The first two pages of both these documents are unsigned. The third page bears the signature of the representative of plaintiff and defendant no.1. However, for want of the original documents, no findings of fact can be given as to whose photocopies is the replica of the original. This is otherwise not material for the reasons that except clause 4, both the parties have not disputed the terms of the MOC relied upon by each other. The remaining terms of the MOC appear to be same except clause 4. The stand of the plaintiff is that the original MOC was retained by defendant no.1 whereas stand of the defendants is that since the collaboration was the outcome of the initiative of Late Professor L. P. Aggarwal and therefore, the original was retained by Late Professor L. P. Aggarwal himself. Nonetheless, both the parties agree that a memorandum of collaboration dated 17.03.2004 was executed between them. Clause 4 which provides for CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 21/31 the mechanism for sharing of the revenues as per the Ex.PW1/DX1 is as follows.
4. All revenue will be shared by IGNOU and Federation of Ophthalmic Research & Education CentresIndia as agreed to "mutually".
22. Whereas as per the MOC relied upon by the plaintiff which is Mark A, the last word in the clause 4 is "equally" instead of "mutually". Therefore, notwithstanding the non production of the original MOC, since there is no dispute regarding the other terms of the MOC, the copy of the MOC filed by the defendant no.1 Ex.PW1/DX1 can be read for the purpose of interpreting the MOC for deciding the present issue. The MOC recognizes the mutual acknowledgement of the experience, expertise and capabilities of plaintiff and defendant no.1 to provide higher education to their target groups of learner with focus on share resources and to come out with implementation of collaboration, based on resource sharing and partnership and experience of plaintiff and it also mentions the strategies to increase the network of existing institutions of training hospitals and research centres in India involved in the field of ophthalmic education and Eye Health Care. The collaboration also conceptualizes the joint development of the strategy for design, development and implementation of 3 years diploma and degree level programme for ophthalmic technician and post graduate programme for ophthalmologists with multi entry and exit points. It also provided for monitoring and implementation committees with representatives and nominees of both the parties with a mandate to CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 22/31 call upon meetings at mutually agreed upon places from time to time. Perusal of the MOC reflects that it intends to broadly lay down the contours to work out the strategies to collaborate for the purpose of dissemination of knowledge in the field of ophthalmology. The collaboration is so widely worded that it did not specifically contain clause which create legally binding rights and liabilities amongst the parties. The very nature of the terms of the collaboration provide for expression of interest and the broader frame work within which both the parties were to act in collaborative manner. It also provided that collaboration will remain in force for 5 years until either party wishes to withdraw for good and sufficient reasons by giving a notice of 3 months in writing. Further, in the absence of any notice of withdrawal, the MOC shall stand extended for a period of 5 years, every 5 year.
23. The nature of the document MOC is such that it entails multiple actions in future and did not expressly provide for legally binding rights and liabilities between the parties. At best, it can be termed as agreement to enter into further agreements by the parties. The broad agreed terms which were agreed between the parties were regarding the sharing of the revenue and the termination of the MOC. The MOC provides that any party can withdraw for good and sufficient reason by giving a notice of 3 months in writing. In the present case, plaintiffs were primarily aggrieved by the invitation of defendants no.3 and 4 at the behest of defendant no.1 and 2 in the various meetings for the execution of the programme.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 23/31Defendants no.1 and 2 in their wisdom wanted to avail the services of defendant no.3 Vision 2020 and that of defendant no.4 who was the National Executive Director of defendant no.3 which was resented to by the plaintiff. The defendant no.2 vide letter dated 13.06.2007 Ex.PW1/24 (Ex.DW1/2) had expressed intention to include defendant no.3 in the collaboration and called upon the plaintiff to contact Dr. S. B. Arora (DW
1) Director School of Health Sciences and to draft a fresh MOU which was resented by the plaintiff which led to the termination of the MOC by the defendant no.1 vide termination letter dated 17.09.2007 Ex.DW1/3. Though, as per the MOC, each party has to give 3 months notice but it appears that no 3 months notice was given.
24. However, the breach of this condition by the defendant cannot be termed so as to hold that it was not validly terminated. The defendant no.1 has already expressed its intention to make the collaboration as Tripartite vide its letter dated 13.06.2007 Ex.DW1/2, wherein it is stated that to monitor the development, implementation and to take care of day to day operational matters of the programme, defendant no.2 has a approved to sign a new Tripartite MOU between the plaintiff, defendant no.1 and defendant no.3 so that the proposed programme could run without any hindrance. No corresponding liabilities have been visualised nor the terms of the MOC was a concrete agreement entailing certain rights and liabilities upon the defaulting party. Further, the reluctance of the plaintiff to enter into Tripartite MOU itself became the cause to discontinue with the CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 24/31 collaboration. It is worthwhile to note that it is admitted that B.Sc. (Hons.) Programme which was jointly started by plaintiff and defendant no.1 could not take off as per scheduled date i.e. by January 2005 as visualised and was delayed for a period of about 3 years as was commenced in July 2007 admitted by PW1 during his cross examination. Therefore, in the given facts and circumstances, once there are complex issues of non cooperation between the parties on certain material aspects of the collaboration, the continuance to the collaboration programme for a further period of 3 months by giving notice of 3 months, holds no relevance and in fact goes against the thesies of smooth and proper implementation of the programme whose main object was the imparting of the education which is a higher purpose which was to guide the every aspect of the collaboration. Therefore, considering the totality of the facts and circumstances, it is held that MOC was validly terminated by defendant no.1 and this issue is accordingly decided in favour of the defendants and against the plaintiff. ISSUE No. 3.
Whether the plaintiff is entitled to mandatory injunction, directing defendant no.2 to implement the Memorandum of Collaboration dated 17.03.2004 till such time it is validly terminated? OPP ISSUE No.4 Whether the plaintiff is entitled to permanent injunction against defendant no.3 and 4 from taking part or interfering in the Joint CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 25/31 Venture between the plaintiff and defendant no.1 in B.Sc. (Hons) 4 years course in Optometry & Ophthalmic Tehcniques or Other course under the Memorandum of Collaboration dated 17.03.2004? OPP
25. In view of the findings given in issue no.1 and further, defendants no.3 and 4 having been deleted from the array of parties, further the programme having discontinued way back in the year 2012, and deletion of prayer clause B and C by the plaintiff, these reliefs have become infructuous. These issues are accordingly disposed off. ISSUE No.9 Whether the suit is bad for misjoinder of parties, namely defendant no.2 to 4? OPDs
26. It was argued by Ld. Counsel for defendants that defendants no.2 to 4 are unnecessary parties as collaboration was between the plaintiff and defendant no.1. As far as defendant no.2 is concerned, being the Vice Chancellor of defendant no.1, in my considered opinion, he ought to be impleaded as a party. However, since defendants no.3 and 4 have already been deleted from the array of parties vide order dated 05.09.2017, therefore, no further findings are required to be given as defendants no.3 and 4 are not party to the suit as on date. This issue is accordingly disposed off.
ISSUE No.10.
Whether the plaintiff is not registered under the Societies Registration Act, 1860 and has no locus standi to file the suit? OPD1.
CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 26/3127. The onus to prove this issue was upon the defendant no.1. However, plaintiff has placed on record the copy of the certificate of registration of plaintiff society Ex.PW1/1 and in the affidavit of PW1, it has been stated in para 2 that the plaintiff society is registered under the Society Registration Act and PW1 is the Secretary of the society having been authorized by the President of the Society to file the present suit. This fact has not been controverted by the defendant during the cross examination of the PW1. Further, plaintiff having filed the certificate of registration of the plaintiff society, therefore, this issue is decided against the defendant no.1 and in favour of plaintiff.
ISSUE No.2 Whether the plaintiff is entitled to revenue sharing in the ratio of 50:50 under the Memorandum of Collaboration dated 17.03.2004? OPP
28. In the memorandum of collaboration Mark A relied upon by the plaintiff, there is mention of the word that all the revenue shall be shared "equally" whereas as per the copy of MOC relied upon by defendant Ex.PW1/DX1, all revenue had to be shared as agreed to mutually. Even for a moment, if the MOC Ex.PW1/DX1 is looked into, the word mutually has further not been qualified as to in what manner and proportion, the revenue has to be shared mutually. In the absence thereof, it has to be shared equally. Perusal of minutes of meeting dated 08.11.2004 in clause 4 reflects that financial matters including the various option of fee CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 27/31 sharing were discussed but no decision could be taken. Further, the minutes of meeting dated 10.12.2004 Mark G stated that issue of fee sharing was discussed in detail and it was agreed that fee share shall be shared equally between IGNOU and FOREC. This being the case, it is clear that there was consensus between the parties that revenue shall be shared equally 50:50. Therefore, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE No.5 Whether the plaintiff is entitled to a decree for rendition of accounts by defendant no.1? OPP
29. Plaintiff has sought the decree of rendition of account. In the affidavit Ex.PW1/X of PW1, it was stated in para 68 that defendant has given admission to 125 students for the first year of the 4 year course commenced in July 2007 and took admission fee of Rs.18,000/ each per annum besides Rs.5000/ each by way of refundable securities. It further states that defendant no.1 has collected total sum of Rs.22.5 lakhs by way of admission fee and Rs.6.25 lakhs as refundable securities. Once there is a clear cut mention of the amount, there was no question of any doubt regarding the amount which was to be shared between the parties. On its part, the plaintiff has not placed on record the details of the various expenditures it had incurred for the various activities which it claims to have done. Therefore, plaintiff ought to have filed the suit for recovery of the amount rather than the suit for rendition of account. Law in this regard CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 28/31 is well settled that a suit for rendition of accounts can be maintained only if a person suing as a right to receive an account from the defendant. Such a right can either be (a) created or recognized under a statute : Or (b) based on the fiduciary relationship between the parties as in the case of a beneficiary and a trustee, or (c) claimed in equity when the relationship is such that rendition of account is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Such a right to seek accounts cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, as that will open the floodgates for converting several types of money claims into suits for accounts, to avoid payment of court fees at the time of institution. Reliance in this regard can be placed on the judgment of K. C. Skaria Vs. The Govt. of State of Kerala (2006) 2 SCC 285; which has been reiterated by Hon'ble Delhi High Court in the judgment of Mohan Mewawala Vs. Damani Dyestuff Ltd & Anr.; 2018 SCC OnLine Del 6519.
30. In view of the same, plaintiff is not entitled to rendition of account. This issue is decided in favour of the defendant and against the plaintiff.
ISSUE No.6 Whether the suit is not properly valued for purpose of court fee and jurisdiction? OPD CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 29/31
31. Plaintiff ought to have filed the suit for recovery whereas it has filed the suit for rendition of account and for said purpose it has valued the suit for the relief of rendition of account and has paid court fee of Rs.20/ only. As it has been held above, plaintiff ought to have filed the suit for recovery and therefore, plaintiff purposely has not valued the suit properly for the purposes of court fee. Therefore, this issue is decided against the plaintiff and in favour of the defendant.
ISSUE No.7.
Whether the relief of injunction sought by the plaintiff are barred under Section 14 and 41(h) of the Specific Relief Act, 1973? OPD1
32. Since the plaintiff has already deleted the prayer clause B and C wherein the reliefs of injunctions were deleted, there is no requirement of giving any finding on this issue as no question of any injunction is required to be adjudicated by the court and therefore this issue is disposed off. ISSUE No.8.
Whether the suit is not maintainable under Section 14, 16 and 41
(e) of the Specific Relief Act, 1973? OPD3
33. The collaboration between the plaintiff and defendant no.1 entailed chalking out strategies to design, develop and implement the BSc. (Hons.) programme in the field of Ophthalmology. The very nature of the collaboration entailed numerous acts on the part of both the parties, ranging from designing the course curriculum, advertising, publishing of study CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 30/31 material, writing the course materials, holding the examinations etc. It entailed holding of numerous meetings involving multiple stakeholders and therefore it involves such minute details, dependent on personal qualifications or violations of the parties and is of such nature which cannot be specifically performed by fiat of the court and the performance of which involves such a continuous duty which the court cannot supervise, therefore the present case is also hit by the provisions of Section 14 (I) (b) and (d) of the Specific Relief Act. Further as per Section 41 (e), there is a restrain to grant injunction to prevent the breach of a contract, the performance of which would not be specifically enforced. However, since there is no prayer regarding injunction as the prayer clause B and C has been deleted, there is no bar of Section 41 (e) as prayed. No arguments were led as to how the suit is hit by Section 16. Therefore, it is held that the suit is hit by Section 14 (1) (b) and (d) of the Specific Relief Act. This issue is accordingly disposed off.
RELIEF:
In view of the above, suit of the plaintiff is dismissed with costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in the open court.
on 31.08.2018.Digitally signed
(Munish Markan) MUNISH by MUNISH MARKAN Additional District Judge01 MARKAN Date: District Courts, Saket, New Delhi 2018.09.05 17:19:27 +0530 CS No.8721/16 FOREC Vs. IGNOU & Ors. Page 31/31