Calcutta High Court
Sunrit Deb vs Sudip Deb & Ors on 11 February, 2021
Equivalent citations: AIRONLINE 2021 CAL 176
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present: The Hon'ble Justice Shivakant Prasad
IA GA 6 of 2019
(Old GA 351 of 2019)
In
CSOS No. 5 of 2008
SUNRIT DEB
........Plaintiff
VERSUS
SUDIP DEB & ORS.
........Defendants
WITH
IA GA 3 of 2019
(Old GA 350 of 2019)
In
CSOS No. 4 of 2010
SUNRIT DEB
........Plaintiff
VERSUS
DEBASISH DEB & ORS.
........Defendants
For the Plaintiff : Mr. Debraj Bhattacharya, Adv.
Mr. K. H. Dasan, Adv.-on-Record
For the Defendants : Mr. Surojit Nath Mitra, Sr. Adv.
Mr., Tilok Bose, Sr. Adv.
Mr. Reetobrata Mitra, Adv.
Mr. Arnab Mukherjee, Adv.
Ms. Sayanika De, Adv.
C.A.V. on : 22.01.2021
Judgment on : 11.02.2021
2
The plaintiff filed two Originating Summons Suits viz. CSOS
5 of 2008 and CSOS No. 4 of 2010 against the petitioners arraying
them as defendants in which proceedings, defendants have filed
two separate applications for striking out their names from the
array of defendants after expunging allegations leveled against
them.
Accordingly, learned counsel for both parties have been
heard at length. In the first Originating Summons Suit, the
petitioners have been impleaded as defendant No. 1 and 2 and in
the second Originating Summons Suit, the petitioners have been
impleaded as defendant No. 1 and 4 respectively.
Since the parties in GA No. 351 of 2019 in CSOS No. 5 of
2008 and GA being No. 350 of 2019 in CSOS No. 4 of 2010 and
the issues involved in the proceedings arise out of the said two
Originating Summon Suits are same, both applications can be
decided and disposed of by a common judgment.
The petitioners have prayed for striking out their names
from the array of defendants in the cause title of the said
Originating Summons Suit because they have tendered their
resignation as trustees duly accepted by the Board of Trustees
and new Trustees have been appointed but they have not yet been
brought on record. The defendant No. 2 in CSOS No. 5 of 2008 is
the defendant No. 4 in CSOS No. 4 of 2010 who has passed away
3
but his name has not been substituted. Mr. Shyamal Kumar Deb
who was appointed as trustee by the defendant No. 4 in CSOS No.
5 of 2008 has also died and his name has also not been
substituted.
It is submitted that an Originating Summons Suit is
different from a regular suit and can only be filed if it falls under
Rule 1 of Chapter XIII of the Original Side Rules which specifically
provides as to who may take out Originating Summons and in
respect of what matters tried under Chapter XIII of the Original
Side Rules and in fact only certain questions can be decided by
the court under this Chapter and its power is restricted to
interpretation and constructions of documents only.
It would be evident from the questions raised by the plaintiff
in the two Originating Summons Suits (paragraph 9 at page 7 of
the application being GA No. 351 of 2019 and in paragraph 9 at
page 7 of the application being GA No. 350 of 2019) that those
relate to development of two properties of the trust and also
relating to proper administration and functioning of the trust.
In order to decide the said questions, the presence of the
petitioners are not at all necessary because the petitioners have
already resigned as trustees and are in no way connected and/or
associated with the management and administration of the trust.
The allegations which have been made against the petitioners in
4
the affidavits are all qua trustees of the trust estate and not
against them personally.
It is submitted that the questions raised by the plaintiff
being the senior most trustee in the said two suits can be
answered by the newly appointed trustees inasmuch as they are
now directly associated and involved in the day to day activities of
the trust since the petitioners have resigned as trustees and will
no longer be able to answer any of the questions in the said two
Originating Summons Suit because they do not have access to any
documents lying in the trust office.
Mr. Surojit Nath Mitra, Sr. Counsel placed reliance in case
of State Bank of India Vs. Mohuragang Gulma Tea Estate &
Anr. reported in 1988(2) Calcutta Law Times 167 to contend as
to what issues can be decided in an Originating Summons Suit
filed under Chapter XIII of Original Side Rules and the law is well
settled in the cited decision as under :
"Chapter XIII of the Original Side Rules of this Court
provide a special procedure by way of an originating
summons which had its origin in English Rules of
Supreme Court. This is undoubtedly a suit in the: Original
Side, but cannot be equated with it, since under the rules
questions are framed for the purpose of being answered
by this Court and the Court in its turn considers as to
whether the questions are within the ambit of the rules of
the Original Side and can be conveniently dealt with by
way of an originating summons. In the event, however,
the Court upon such consideration finds it otherwise, the
Court will relegate the party applying to an ordinary suit."
5
Taking cue from the above cited decision, it is submitted
that Originating summons is available to proceedings which are
not of an involved nature or on which there would hardly be any
scope for any oral evidence. Personal allegations against trustee
cannot be decided in an Originating Summons Suit and for that
the proper procedure is to file a regular suit. The scope of an
Originating Summons Suit is restricted to interpretations and
constructions of deeds and documents and for answering
questions framed for determination and not beyond that. Any
other dispute has to be decided by filing a regular suit by paying
appropriate court fees.
In rebuttal, Mr. Debraj Bhattacharya, learned counsel for
the plaintiff submitted that the petitioners/defendants cannot in
law be entitled to any order expunging their names on the plea
that they had decided to quit their office of Trustee of the said
Anath Nath Deb Trust Estate in 2018 as the said Trust Estate was
declared by a Division Bench of this Hon'ble Court vide order
dated 10th May, 1972 to a religious and charitable public trust
from the day of its inception, entails discharge of certain duties
and obligations pertaining to its nature that cannot be disowned
by a Trustee by simply resigning that office in the manner not
unlike withdrawing from the membership of a private club. This is
because of the fiduciary nature of his relationship with the said
6
trust estate of a recognized religious and charitable character. For
the breach of duties and obligations that inhere to that
relationship, the trustee remains answerable in law even though
he resigns the office.
It is further submitted that the plaint in the Originating
Summons Suit contains averments disclosing instances of such
breach which constitute its cause of action in or about the year
2008 and the pleadings are essentially and inextricably connected
with the questions that the plaintiff has raised in the said
originating summons suit filed under the Chapter XIII of the
Original Side Rules which have to be answered by the said
petitioners/defendants being necessary parties and that the said
pleadings cannot be now expunged after lapse of 10 years from the
date of institution of the said Originating Summons Suit, simply
because the petitioners/defendants chose to resign their office of
trustee some time in 2018.
In my opinion if the plaintiff alleges breach of trust by the
petitioners who resigned as trustee is liable to be removed from
the office of Trust Estate, but such breach of trust has to be
proved on evidence in a regular suit.
As regards expunging of pleadings of allegations against the
defendants in the plaint, it is submitted that as in law, it can be
done only under the provisions of Order VI Rule 16 of the Code.
7
The pleadings shall have to be proved at the trial to have been
either unnecessary or scandalous or frivolous or vexatious or that
they may tend to prejudice, embarrass or delay the fair trial of the
said Originating Summons Suit or that they constitute an abuse
of the process of Court.
It is pointed out by Mr. Bhattacharya, learned counsel for
the plaintiff that the petitioners/defendants neither averred
anywhere nor have their counsel made the least effort to
demonstrate that any of the aforesaid mandatory requirements of
Order VI Rule 16 for expunging the plaintiff's pleadings or any
part thereof was satisfied in the instant case in any manner
whatsoever and allegations in the plaint against the
petitioners/defendants and each of them are based on the
plaintiff's knowledge of contemporary material facts and events of
the year 2008 and thereabouts that indicate the negligent,
mismanagement and maladministration of the affairs of the said
Trust and egregious violation of the letter and spirit of the Trust
Deed that was executed by the Settlors Trustees a century ago in
the year 1919.
A brief summary of cause of action as made in the plaint is
narrated to the effect that since April, 2008, contrary to Article
4(c) of the Trust Scheme, the defendants particularly the applicant
Sudip Deb and following him the applicant Debasis Deb who
8
successively acted as Secretary Trustees of the said Trust Estate
deliberately kept the plaintiff uniformed about all major facts of
the administration of the said Trust. They made it their business
that the plaintiff came to know nothing about them. In May-June
2008 they caused a payment of Rs. 1,00,000/- out of the Trust
funds to be made to one Rabindra Nath Dutta purportedly to buy
up his tenancy of a part of the trust premises no. 81A, Beadon
Street. No reason, no fact necessitated their decision to acquire
the said part of the premises for such large sum withdrawn from
the Trust funds at that time. Neither the plaintiff was informed
nor was his consent sought for making such large payment at any
time nor was the same included in contemporaneous Board
meeting of Trustees in total violation of Article 4(f) of the said
Trust Scheme. Apart from the said fact such payment was made
extra-budgetary in violation of Article 9 of the said Scheme.
Amongst other acts of unlawful maladministration of Trust affairs,
the said unwarranted payment of Rs. 1,00,000/- in course of May-
June 2008 contributed in substantial measure to a cash flow
crisis a few months later in and about the festive season of the
Pujas that year and imperiled the normal functioning of the said
Trust. The defendant Sudip Deb acting then as Secretary Trustee
in collusion with the other defendants attempted to coerce the
plaintiff into agreeing to a purported Joint Venture Agreement to
9
develop the said Trust property viz. the premises no. 81A, Beadon
Street. It was represented to the plaintiff by the said
petitioners/defendants that such Agreement would enable a large
cash in-flow from their proposed Joint Venture partner, i.e. the
Developer and thereby help the Trust Estate tide over the crisis.
The plaintiff was thereby misled and constrained to affix his
signature to the said Joint Venture Agreement on 17th August,
2008. Only after the plaintiff had so affixed his signature that the
plaintiff was allowed to inspect the contemporaneous financial
records of the said Trust which revealed to him for the first time
that the aforesaid wrongful and unwarranted payment of Rs.
1,00,000/- to the said Rabindranath Datta was made by
withdrawal of substantial amounts successively by cheques drawn
by the said defendants on the Bank mostly in May-June 2008
without communication thereof to the plaintiff. It was the practice
long agreed by the Bank that any three trustees by cheques signed
by them were competent to withdraw monies from the trust funds
lying with the Bank. This was done recklessly and/or negligently
in this case without concern for the welfare of the Trust and
stability of its financial state. Essential repairs of the prime
property of the said Trust viz. the building of the Anath Nath Deb
(Chhatu Babu's) Bazar on the premises 9/4 Beadon Street had
been long overdue and Bazar tenants were clamoring for at least
10
temporary shed on a part thereof because the ceiling thereof had
partly collapsed on 13th January, 2007 causing an accident. The
rainwater was continuously allowed to drip through most parts of
the ceiling causing inconvenience to traders and customers. The
plaintiff would never have agreed to the said payment of Rs.
1,00,000/- had such facts been considered at Board Meeting
called by the defendant Sudip Deb as the Secretary Trustee. No
provision of such expense was to be found in the Trust's Budget
for 2008-2009 that was duly considered and passed on 28th
March, 2009. Article 9 of the said Trust Scheme explicitly
prohibited all extra budgetary expenses that were not made out of
additional income already accrued to the Trust during the current
financial crisis in August, 2008 which was the defendants' own
making on the eve of the festive season of the year. It became
evident to the plaintiff upon discovery of such illegal payments
made out of trust funds that he had been subjected to calculate
deceit practiced on him because there could have been no legal
necessity whatsoever for virtually alienating certain parts of the
said valuable Trust property (81A Beadon Street premises) by way
of the aforesaid Joint Venture Agreement to be entered into with a
somewhat unknown and dubious promoter/developer of the
choice made by the petitioners/defendants. He therefore had no
alternative to expressly repudiate and rescind the said allege Joint
11
Venture Agreement that he had been made to sign on 17th August,
2008 because the same was procured from him by
misrepresentation, deceit and fraud in flagrant breach of the
fiduciary duties pertaining to the Office of Trustee held by the
petitioners/defendants in their own interests.
It is, thus, contended that Originating Summons Suit
directly arose out of and is inextricably connected with and related
to the aforesaid acts and omissions of the petitioners/defendants
committed in clear breach of their fiduciary duties and obligations
owed to the said public and charitable trust, the Anath Nath Deb
Trust.
In view of the aforesaid facts, plaintiff has sought for
dismissal of said two applications for expungement of any of the
averments in the plaint in the said Originating Summons suit in
CSOS 5 Of 2008 or CSOS 4 of 2010 inasmuch as the same is not
permissible under the mandatory terms and conditions of Order
VI Rule 16 of the Code.
Though, such power of the Court is an extraordinary power
to strike out a pleading and has to be exercised with extreme care,
caution and circumspection. So, in my view, striking out pleading
at any stage of the proceedings is not mandatory under the
provisions of Order VI Rule 16 of the Code.
12
In this context the plaintiff referred to a decision in the case
of ANIIDCO limited vs. M/S DYC Self Help Group & Anr. in
(2013) 2 CLJ 576 wherein it has been held thus :
"The question whether the defendant no.2 has been
improperly joined or not should be considered in the
background of the plaint in Money Suit No.17 of 2011. While
dealing with the issue, it should be considered whether there
is cause of action against the said defendant and whether it
has been specifically pleaded in the plaint and consequently
whether specific relief has been claimed against the said
defendant. Moreover, it should be seen whether the said
defendant has a direct link in the litigation and what role the
defendant no.2 has to play for effective adjudication.
Perusing the plaint, I find neither there is any specific
pleading as to the cause of action against the said defendant
no.2 nor there is any specific prayer against the said
defendant. Therefore, the learned Judge while passing the
order dated 19.3.2012 was justified in holding that there was
no personal liability of the defendant no.2 who was also
representing as the Secretary of the defendant no.1. The
judgment in R.L. Jain (supra) is not applicable as perusing the
paragraph 4 I find therein not only specific pleadings were
against the applicant/defendant no.5 but specific prayer was
also made. So far as the applicability of section 6 and its
proviso of the Societies Registration Act, 1860 is concerned, it
is clear that under the statute a society may be sued in the
name of its President, Chairman or through Secretary. In the
instant case, as the defendant no.1 is represented by the
Secretary and, as noted, the defendant no.2 has no role to
play, it shows that the order passed was just and proper."
It is contended that the applicants have not averred in their
applications that the pleadings in the plaint in the O.S Suit
constitutes an abuse of the process of Court and refers to decision
in K.K Modi Vs. K.N Modi 1998 3 SCC 573, AIR (1998) SC 1297
wherein the Hon'ble Court observed that expunging of pleading is
a matter of discretion to be exercised with circumspection in
13
special case to hold that the contents of a pleading amount to an
abuse of the process of Court.
This decision also does not support the case of the plaintiff.
Firstly, this is in respect of an arbitral dispute. Secondly, the court
held that it is the discretion of the court to strike out the pleading
if the court is satisfied that there is no chance of success in the
suit. The suit being an Originating Summons Suit, the allegations
are qua trustees. In an Originating Summons Suit the court does
not go into the allegations and only decides the questions.
Accordingly, it is submitted that allegations should be expunged.
It would be apt to take note of provision of Order VI Rule 16
of the Code which provides that the Court may, at any stage of
proceedings strike out or amend any matter in any pleading--
(i) which may be unnecessary, scandalous,
frivolous or vexatious, or
(ii) which may tend to prejudice, embarrass or delay
the fair trial of the suit, or
(iii) which is otherwise an abuse of the process of the
Court.
It is now submitted that the burden of proving that the
impugned pleadings of the plaintiff or any part of it is vitiated by
reason of (i) or (ii) or (iii) lies entirely on the petitioners/defendants
14
who have not made the faintest attempt to aver and/or
demonstrate that the requirements of such conditions or of any of
them.
The test is whether the words complained of as set out in
the pleadings amount to allegations necessary for the formulation
of the plaintiff's case, either in the way of establishing his cause of
action or relevant for the purposes of decision of any of the issues
or could form part of the evidence which the plaintiff would be
bound to lead by his documents or otherwise for the purpose of
obtaining the relief sought.
Learned counsel for the plaintiff refers to case of MTNL Vs.
VK Jain (1998) 71 Delhi Law Times 467 wherein scandalous
and vexatious pleadings made by the respondent/plaintiff against
the defendant No. 3 Dy. General Manager (Legal) were expunged as they have found wholly unnecessary adjudication of the suit apart from being scandalous and vexatious.
This decision clearly goes against the plaintiff's argument, rather supports the case of the petitioners. In the said case Order 1 Rule 10 application which was filed alongwith the prayer for expunging the allegation were in fact allowed. The court categorically held that if the allegations made are unnecessary or vexatious for the purpose of the suit, the same should be 15 expunged and court also allowed the application under Order 1 Rule 10 holding that if a person's presence is not necessary then his name should be deleted from the array of defendants.
It is pointed out that there is not a single sentence in the instant applications stating that any of the pleadings contained in the plaint cannot be permitted to stand by virtue of the requirements of Order VI Rule 16 of the code. There can therefore be no question of striking out or expunging any of the said allegations at this pre-trial stage. That would amount to withdrawal of the plaintiff's cause of action in full or in part and therefore appear absurd and impermissible in law.
As regards striking out of the names of the petitioners/defendants from the array of defendants in the cause title of the O.S. Suit, learned counsel for the plaintiff has relied on a decision reported in AIR 1926 P.C. 88 to contend that where a cause of action against the defendants is specially pleaded and a distinct relief is claimed against them, an order directing the removal of their names from the array of defendants in the cause title would be in substance a decree. That would prejudice the merit of the suit against the plaintiff without trial of the materials issues in controversy between the parties.
16
The cited decision in my view is not apposite to the facts and circumstances of the case because in the Originating Summons Suit questions pertaining to management of the Trust Estate has been sought to be answered and the same is to be decided summarily. Therefore, it cannot be treated to be a decree.
Learned counsel for the plaintiff also relied in case of Monohar Lal & Ors. Vs. Roshan Lal and another reported in AIR 1938 Lahore 799 Beckett, J. to submit that where Order I Rule 10 provides that the Court may strike out the name of a party who has been improperly joined as a plaintiff or defendant, such words refer to the time as and when the suit was framed and instituted against them i.e. the commencement of the suit and not later. The petitioners/defendants will have to show that the joining or impleading Sudip Deb and Debasish Deb as the defendants to the O.S. Suit was improper on the date in the years 2008 and 2010 when the said Originating Suits were instituted and not on the dates they successively resigned their office of Trustees a decade later in the year 2018. There is even no averment in their application that they were improperly joined as defendants at the commencement of the said suit. The basic foundation for striking out their names as defendants only upon its finding that the petitioners are not necessary nor proper parties to the proceedings 17 for the Court to come to an effective and complete adjudication of all the issues involved.
This judgment is distinguishable from the instant case inasmuch as it relates to a mortgage suit and not to an Originating Summons Suit and such a suit is not decided on full- fledged trial. In the cited case, trial Court came to the conclusion that the claims of two of the persons should be dismissed, however, proceeded to strike out their names under Order 1 Rule 10 of CPC on the ground that they have not been properly impleaded as parties to the suit. Learned District Judge in appeal ordered that the name of one of the plaintiff should be restored but not the other name. A second appeal was preferred by the defendants asking that the name which has been restored should be struck off. The Hon'ble Court directed that two names which have been struck off should again be restored to the record until a preliminary decree is passed and becomes final. In the present case, it is argued by the learned counsel for the petitioners that their presence is not at all necessary and since allegations cannot be decided, those should be expunged and emphasized that once it is recognized that a probability exists for enquiring into the questions whether the petitioners/defendants are necessary or not in the scheme of the plaint as pleaded, the issues must be decided at the trial and not on an application for deletion of those parties. 18 Since the contentions raised in the plaint entail a determination of facts, the issues raised must necessarily be determined at the trial.
Learned counsel for the plaintiffs relied on the observations in the unreported judgment in case of ITC Limited Vs Morgan Mutual Fund India decided on 24th August, 2018 to submit that for deletion or striking out the names of the petitioners from the array of defendants in the cause title of the said Originating Summons Suit is not permissible and the rights and obligations of the parties vis a vis the trust properties qua trustees shall have to be determined at the trial for adjudicating the issues in controversy between them as indicated by the pleadings contained in the Plaint read with the question raised by the plaintiff under the provision of Chapter XIII of the Original Sides Rules and urged that the presence of the petitioners/defendants shall be necessary and appropriate, if not imperative at the trial.
On the contrary, it is argued by learned counsel for the petitioners that the unreported decision in ITC Limited case does not apply to the present case, firstly, because the cited case is in respect of a commercial suit and not an originating summons suit and secondly, in the said case no application under Order I Rule 10 was filed rather an application under Order VII Rule 11 was filed. On the face of it the said judgment has no manner of 19 application in the present case. I fully agree with said submission of learned counsel that the cited decision is not apposite to the fact of the instant case because provision of Order VII Rule 11 relates to rejection of plaint.
Now, it is pertinent to narrate the questions raised by the plaintiff for determination in the Originating Summons Suit as under :
I. Are the defendants, particularly the Defendant no. 1, not bound or obliged to effect forthwith repairs to the existing structures in the market premises of the Trust at 9/4, Beadon Street, Kolkata-700 006, starting with the structures in immediate need of repair, in terms of the said Scheme?
II. Are the defendants, particularly the Defendant no. 1, not bound at all material times to offer to inspection of the accounts, books papers and documents of the trust estate to the plaintiff and/or his agents which have been refused?
III. Are the defendants, particularly the Defendant no. 1, not obliged to furnish true, full and faithful accounts of the income from the trust estate and its disbursements to the plaintiff when demanded by him?20
IV. Is the Defendant no. 1 not obliged to supply (at copy cost) xerox copies of statements detailing the income and expenditure of the trust estate or of any other papers or records thereof to the plaintiff, if so requested? V. Is the Defendant no. 1, not obliged to decide important matters relating to the trust estate such as transfer and assignment of tenancies and premium offered therefor and emergent or urgent repairs to the said trust properties at 9/4, Beadon Street and 81A, Beadon Street in the meetings of the Board of trustees convened by the Defendant no.1?
VI. Is the Defendant no. 1 not obliged to keep all the trustees including the plaintiff informed in writing of each and all of the current affairs of the trust estate?
VII. Is the Defendant no. 1 not obliged to call meetings of the Board of trustees at least once a month upon the notice of such meetings served on all trustees including the plaintiff incorporating or listing all current and/or emergent matters in the Agenda for such meetings?
VIII. Are any of the two defendants trustee not obliged to call a meeting of the Board of trustees with proper notice and with the Agenda therein listing all important and/or emergent matters to be considered or discussed in such 21 meetings in the event of the failure of the Defendant no. 1 to do so?
IX. Is the Defendant no. 1 not obliged and bound to totally and faithfully record proceedings of the meetings of the Board of trustees in the Minute Book of the trust maintained for the purpose inter alia by engaging a competent stenographer?
X(a) Is the Defendant no. 1 or are the other defendants entitled to disburse income or funds of the said public trust in excess of or in contravention to what has been provided for in Article 9 of the said Scheme?
X(b) Is the Defendant no. 1 and are the other defendants entitled to disburse trust funds or rents, profits and income of the said public trust or any part thereof for prosecuting their private defence in the said CSOS 5 of 2008?
X(c) Are the Defendants not liable to refund and/or repay all such amounts disbursed for prosecuting their private legal defendant in the said CSOS 5 of 2008 to the trust upon furnishing true and faithful account of the same? XI. Are the trustees not obliged to offer food and help to poor students receiving education to the full extent of the funds available therefor in terms of Article 6 of the said Scheme? 22 XII. Are the defendants, particularly the defendant no. 1, not obliged to distribute clothes among the poor, indigent and needy persons in terms of Article 10(g) of the said Scheme?
XIII. Are the defendants, particularly the defendant no. 1, not obliged to allow and abstain from interfering with the full participation of the plaintiff in the various traditional religious rites and customary observances of the trust and distribution of Bhog in terms of Article 12 of the said Scheme?
A bare reading of the affidavit filed in support of the Originating Summons Suit would reveal that the questions raised for determination relates to management, administration and function of Anath Nath Deb Trust Estate. It would appear that the plaintiff has also prayed for determination of question relating to reconstruction/renovation of Bazaar premises being Chhatu Babu Bazaar situated at 9/4, Beadon Street, Kolkata-700006 as also premises no. 81A, Beadon Street, Kolkata-700006 and also prayed for determination of the questions whether there was at all any legal necessity for reconstruction/renovation or development of the said two properties.
The defendant no. 4 resigned as Trustee on 19th January, 2018 and appointed his uncle Mr. Shyamal Kumar Deb as new Trustee in 23 his place and stead and his resignation has been accepted by the Board of Trustees appointing Mr. Shyamal Kumar Deb as new trustee who has been acting as Trustee of the Anath Nath Deb Trust Estate since then.
The defendant no. 1 also resigned as trustee on 29th November, 2018 appointing his cousin Subhodeep Deb as new Trustee in his place and instead after acceptance of his resignation by the Board of Trustees and Sri Subhodeep Deb has been functioning as new Trustee.
It is pointed out that the defendant no. 2 had passed away and in his place and instead, Mr. Debaditya Deb was appointed as the new Trustee as desired by the defendant no. 2 when he was a minor and he is being represented by his mother as his natural guardian.
Therefore, upon appointment of new trustee, the petitioners' involvement into the affairs of the said Trust is not at all necessary for adjudication of the disputes raised by the plaintiff for the aforesaid questions to be answered because the allegations raised are all qua trustees of the trust estate and not against them.
It would not be out of the context to take notice of a letter dated 27th August, 2008 of the plaintiff addressed to the then Secretary of the Trust advising the Secretary to carry out the valuation of the premises 81/A, Beadon Street, Kolkata-700 006 by M/s. Talbot and Company to determine current market value in order to ensure that 24 the price fetched by developer closely adheres to and approximates such value. It would be evident that plaintiff was well in the knowledge of the affairs of the trust estate and proposed development of the property of trust being a signatory to the agreement. Be that as it may, allegations averred in the summary facts of the case in the background of trust scheme and the questions raised by the plaintiff can be heard and answered in presence of the newly appointed trustees who have jolly well stepped into the shoes of the outgoing trustees. Ergo, I am of the opinion and hold that presence of petitioners is not necessary for the answers to be given against the questions raised by the plaintiff in the Originating Summons Suit. Accordingly, names of the outgoing trustees being defendant Nos. 1, 2 and 4 be struck off from the cause title and in their place the names of the newly appointed trustees be impleaded in the cause title of the Originating Summons Suits.
Having argued to the rival contentions, I am of the view that the allegations are qua trustees which can be decided while answering the questions mentioned in paragraph 9 of the application being GA No. 351 of 2019 and GA No. 350 of 2019, however, the petitioners prayer for expunging the allegations contained in the affidavits in support of the summons in the above suit is not countenance to, as those allegations are common in nature qua the trustees but, the names of petitioners be struck off from the array of 25 defendants in view of the provision of Section 71 of Indian Trust Act, 1882 which clearly spells out that once a new trustee is appointed in place of the existing trustee, the existing trustee may be discharged because the petitioners are no longer the Trustee of the said Trust Estate and can no longer be a party relating to dispute in connection with Anath Nath Deb Trust Estate.
In the context of what has been discussed above the GA applications being IA GA 6 of 2019 (GA No. 351 of 2019) in CSOS No. 5 of 2008 and IA GA 3 of 2019 (GA No. 350 of 2019) in CSOS No. 4 of 2010 are disposed of.
Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)