Delhi District Court
Jasjeet Singh Marwaha vs Sri Guru Nanak Satsang Sabha on 5 December, 2013
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM-GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
CS No. 529/11
UNIQUE ID NO. 02403C0281372009
JASJEET SINGH MARWAHA
S/o Daljit Singh Marwaha,
R/o A6/20, Vasant Vihar,
New Delhi-57.
........... Plaintiff.
Vs.
1. SRI GURU NANAK SATSANG SABHA
Vasant Vihar, New Delhi.
2. BRIG. HARJIT SINGH
D-6/7, G. F, Vasant Vihar,
New Delhi.
3. SDR. GAJINDER SINGH SAHNI
B-8/4, Vasant Vihar (G.F),
New Delhi.
4. SDR. O. S. PREM
135, Munirka Enclave,
New Delhi.
5. SDR. I. P. S. ANAND
A-9/14, Vasant Vihar,
New Delhi.
CS No. 529/11 Page No. 1 of 39
6. SH. A. S. BEDI
34, Poorvi Marg, Vasant Vihar,
New Delhi.
7. SDR. GURDARSHAN SINGH
142, Vasant Enclave,
New Delhi.
8. SDR. B. S. KAPUR
D-6/8, Vasant Vihar,
New Delhi.
9. MRS. RAJINDER KAUR JUNEJA
A-6/21, Vasant Vihar,
New Delhi.
10.SDR. SARABJEET SINGH
B-4/3, Vasant Vihar,
New Delhi.
11.SH. PRAKASH JAI SINGHANI
B-14, Vasant Marg,
New Delhi.
12.SDR. TRILOCHAN SINGH JOHAR
B-4/11, F. F, Vasant Vihar,
New Delhi. .........Defendants.
DATE OF INSTITUTION : 14.09.2009
DATE OF RESERVING JUDGMENT : 30.09.2013
DATE OF PRONOUNCEMENT : 05.12.2013
CS No. 529/11 Page No. 2 of 39
J U D G M E N T
(05.12.2013) Vide this judgment, I shall dispose of suit filed by plaintiff against defendants for declaration, permanent and mandatory injunction.
Relevant facts necessary for disposal of the present suit are as follows:-
1. In the suit, it is stated that plaintiff is life member of Sri Guru Nanak Satsang Sabha, Vasant Vihar, New Delhi (defendant no. 1). It is stated that defendant no. 1 is registered society registered with Registrar of Societies, Govt. of NCT of Delhi. It is stated that defendants no. 2 to 13 are persons who claim themselves to be executive committee of defendant no. 1 on the basis of illegal election held on 13.06.2009 which in fact was not an election but a selection in utter disregard to by-laws of defendant no. 1.
2. It is stated that as per by-laws of defendant no. 1, any person who has attained age of 18 years, is a resident of Vasant Vihar or in adjoining colony or owns a house/residential plot or shop/shop plot and has paid or donated minimum amount as prescribed in Rule 9 and has been duly approved for membership can be member of defendant no. 1. It is stated that CS No. 529/11 Page No. 3 of 39 such members are permitted to cast vote or contest election for executive committee of defendant no. 1.
3. It is stated that 30 bonafide members of defendant no. 1 sent notice dated 29.04.2009 for holding Special Body Meeting for discussing vital issues and specifically issue of proposed consideration of application for membership of 85 persons keeping in view shortcomings as pointed out by sub-committee appointed for scrutiny of all such applications for membership of defendant no. 1. It is stated that erstwhile Managing Committee did not reply to this notice.
4. It is stated that plaintiff who keeps on visiting defendant no. 1 came to know through Mrs. Darshan Brara i.e. one of life members of defendant no. 1 on 12.06.2009 that a General Body Meeting of defendant no. 1 would be held on 13.06.2009 instead of Special General Body Meeting as per notice circulated by outgoing President on 06.06.2009 wherein it was acknowledged by the then President that he received notice dated 29.04.2009 calling for holding of Special General Body Meeting. It is stated that plaintiff came to know about notice dated 06.06.2009 only through Mrs. Brara. It is stated that plaintiff also came to know that a meeting was held on 16.05.2009 wherein erstwhile Managing Committee was dissolved and it was decided to hold CS No. 529/11 Page No. 4 of 39 elections of Managing Committee of defendant no. 1 on 13.06.2009. It is stated that it further came to notice of plaintiff that instead of holding proper elections in terms of by-laws of defendant no. 1, defendant no. 2 alongwith Sdr. J. S. Oberoi was authorized to select office bearers and members of Managing Committee instead of holding proper elections. It is stated that this procedure of selection instead of election is/was against prescribed procedure of election as laid down in Memorandum of Association of defendant no. 1. It is stated that plaintiff did not receive any notice of General Body Meeting to be held on 13.06.2009 which is mandatory and that each and every life member is to be served with notice for holding of AGM.
It is stated that like plaintiff, many other bonafide members of defendant no. 1 did not receive any such notice.
5. It is stated that plaintiff was shocked to know that as per notice dated 06.06.2009, defendants adopted totally illegal procedure to constitute Managing Committee. It is stated that method adopted by defendants was against letter and spirit of rules governing working of defendant no. 1. It is stated that it restricted right of members to contest elections. It is stated that as per by-laws of defendant no. 1, plaintiff and other bonafide members have right to participate and cast their vote in the election.
CS No. 529/11 Page No. 5 of 396. It is stated that the manner in which selection took place was shocking. It is stated that defendant no. 2 proclaimed himself as President of defendant no. 1 and picked up other defendants as other office bearers and members of Executive of defendant no. 1. It is stated that defendant no. 2 is not even a bonafide member of defendant no. 1. It is stated that similarly other members of Managing Committee of defendant no. 1 namely Sdr. B. S. Kapoor who has been nominated as member is also not a member of defendant no. 1. It is stated that these two persons can in no circumstances be members of Executive Committee as they were not elegible to cast vote and contest elections.
7. It is stated that plaintiff got in touch with defendants about illegal procedure being adopted by them but they did not give any satisfactory reply and rather threatened and told plaintiff not to interfere.
8. It is stated that plaintiff raised issue of validity of holding of Annual General Meeting on 13.06.2009 wherein illegal selection/nomination rather than election was held. It is stated that plaintiff also sought clarification as to why Special General Body Meeting was not convened. It is stated that it was brought to notice of defendants that meeting was against by-laws of CS No. 529/11 Page No. 6 of 39 defendant no. 1 as Memorandum of Association of defendant no. 1 clearly defines procedure for holding Special General Body Meeting as per which when atleast 20 members or ¼ of total number of members whichever is less give in writing a notice for holding of a special meeting, notice of such meeting shall be issued by Managing Committee within 15 days from date of receipt of requisition and it will be mandatory to call special meeting within period of 4 weeks from date of notice by Managing Committee. It is stated that plaintiff was not given any answer as to why General Body Meeting was not convened and that decision of Managing Committee taken by them on 06.06.2009 was in complete violation of by-laws of defendant no. 1 and that Annual General Body Meeting held on 13.06.2009 was illegal and therefore any decision taken in such illegal meeting was illegal, null and void and non-est. It is stated that defendants did not listen to pleas of plaintiff as they were interested in usurping positions in Managing Committee illegally.
9. It is stated that on 19.06.2009, plaintiff came to know that illegally appointed Management Committee had issued circular dated 15.06.2009 indicating that Annual General Meeting of defendant no. 1 held on 13.06.2009 had elected office bearers and members of Managing Committee through consensus for the year 2009-10. It is stated that Sdr. C. S. Anand has been CS No. 529/11 Page No. 7 of 39 shown as internal auditor and also a member of Managing Committee which shows malafide intention of illegally self appointed Management/ Executive Committee.
10. It is stated that plaintiff sent notice dated 20.06.2009 to defendants in this regard but the notice has not been replied by defendants.
11. It is stated that plaintiff is bonafide member of defendant no. 1 and has right to participate in election process and cast his vote. It is stated that plaintiff alongwith other bonafide members of defendant no. 1 took up the matter with defendant no. 2 who assured to hold proper elections as per rules of defendant no.
1. It is stated that as defendant no. 2 was going abroad for some time, he assured plaintiff to hold elections immediately on return. It is stated that plaintiff kept on inquiring but defendants avoided meeting with plaintiff and delayed holding of proper elections. It is stated that though defendant no. 2 has come back from abroad, no steps have been taken to hold elections as per by- laws till date.
12. It is stated that entire proceedings which took place on 13.06.2009 are illegal and need to be declared as null and void. It is stated that defendants need to be restrained not to proceed CS No. 529/11 Page No. 8 of 39 with affairs of defendant no. 1 but defendants are not listening to plaintiff and other bonafide members of defendant no. 1.
13. Plaintiff has prayed for passing decree of declaration in favour of plaintiff and against defendants/ its office bearers and assignees etc. thereby declaring that meeting held on 13.06.2009 is illegal, null and void and that constitution of Managing Committee and selection/nomination of defendants to Managing Committee as illegal. Plaintiff has further prayed for passing decree of permanent injunction in favour of plaintiff and against defendants/their agents and assignees etc. thereby restraining them from conducting activities/affairs of defendant no. 1. Plaintiff has further prayed for passing decree of mandatory injunction in favour of plaintiff and against defendants thereby directing defendants to hold Special General Body Meeting as per by-laws of defendant no. 1 and hold elections in terms thereof.
14. Upon service of summons, defendants put up their appearance before Court through counsel. Defendant no. 7 was deleted from array of parties on account of factum of his death and on account of an application under Order 22 Rule 2 CPC being moved by plaintiff in this regard.
CS No. 529/11 Page No. 9 of 3915. WS was filed by defendants. In WS filed by defendants, defendants took certain preliminary objections. It is stated that plaintiff has not approached Court with clean hands and has concealed true and material facts from the Court. It is stated that suit filed by plaintiff is liable to be dismissed as plaintiff has no locus standi to file present suit. It is stated that suit of plaintiff is liable to be dismissed as he himself has mischievously taken membership of defendant no. 1 by giving false address in view of the fact that he is residing at Malcha Marg and as per Memorandum of Association, Rules and Regulations of defendant no. 1, plaintiff cannot become member of defendant no. 1. It is stated that plaintiff has taken membership of defendant no. 1 by mentioning his residential address which is residential address of his mother-in-law Mrs. D. S. Brara who has also falsely sponsored plaintiff as plaintiff is not residing at the said address. It is stated that suit of plaintiff is liable to be dismissed as the same is barred under Section 41 (h) of Specific Relief Act. It is stated that suit of plaintiff has become infructuous in view of fact that Managing Committee of defendant no. 1 has already been elected and the same has already been approved by General Body in AGM held on 13.06.2009 and is functioning to the satisfaction of General Body since 13.06.2009. It is stated that relief claimed by plaintiff if granted to plaintiff, the same would cause irreparable loss not only to defendants but CS No. 529/11 Page No. 10 of 39 public at large as defendants are running various charitable activities including running of Poly Clinic from premises of defendant no. 1 and are serving public at large.
16. On reply on merits, It is stated that defendant no. 1 reserves its right to take action against plaintiff on account of wrong mentioning of residential address of plaintiff by plaintiff. It has been admitted that defendant no. 1 is registered society and that defendants no. 2 to 13 were elected as members of Managing Committee of defendant no. 1 in election held on 13.06.2009 as per Rule 4(b) of Memorandum of Association and Rules and Regulations of defendant no. 1. It has been denied that elections were held illegally or that there was no election and election of members of Executive Committee was in disregard of rules of defendant no. 1 as alleged. It is stated that elections were conducted following rules, regulations and by- laws of defendant no. 1 and that General Body has full and final authority under Rule 3 of Rules and Regulations of defendant no. 1 and General Body approved selection of members of Managing Committee in AGM held on 13.06.2009 and members of Manging Committee were elected as unopposed. It is stated that not even a single member including plaintiff raised any objection pertaining to appointment of members of Managing Committee of defendant no. 1. It is stated that plaintiff has filed CS No. 529/11 Page No. 11 of 39 present suit in order to creat nuisance and spoil peaceful atmosphere of defendant no. 1. It is stated that defendants have no concern with notice issued on 06.06.2009 as earlier Managing Committee has already been dissolved. It is stated that Mrs. D. S. Brara is none else but mother-in-law of plaintiff and plaintiff has not disclosed his relationship with her intentionally. It has been denied that many members of defendant no. 1 did not receive notice of General Body Meeting. It is stated that as plaintiff is not residing in Vasant Vihar and is residing at Malcha Marg, therefore he did not receive notice but that notice was circulated at all addresses of members and largest number of members were present in AGM held on 13.06.2009. It is stated that date of 13.06.2009 for AGM was fixed as per by-laws of defendant no. 1 and in consonance with Rule 4(B) of provisions of by-laws as it was mandatory to held elections on Second Saturday of June i.e. 13.06.2009. It is stated that present suit has been filed by plaintiff as he could not become member of Managing Committee of defendant no. 1 for which he repeatedly approached defendants himself as well as through his mother-in-law. It is stated that all the members who were present in AGM held on 13.06.2009 overwhelmingly approved procedure adopted in the same and members of Managing Committee were declared elected. It is stated that defendant no. 2 and B. S. Kapoor are members of defendant no.
CS No. 529/11 Page No. 12 of 391 and were eligible to cast their votes and to contest elections of defendant no. 1. Allegations of threatening to plaintiff have been denied. It is stated that members of Managing Committee were duly elected as per rules and that plaintiff who himself was present in AGM held on 13.06.2009 did not object to the procedure. It is stated that Mr. C. S. Anand has already expired and that there is no rule prohibiting member of Managing Committee to function as internal auditor.
17. Defendants have prayed for dismissal of suit of plaintiff with heavy costs.
18. No replication to WS of defendants was filed by plaintiff.
19. After completion of pleadings, following issues were framed on 22.12.2010:
(1) Whether the plaintiff has obtained membership of Sri Guru Nanak Satsang Sabha by giving his false address?OPD (2) Whether the procedure by which defendant no. 2 to 13 were elected as members of the Managing Committee of Guru Nanak Satsang Sabha was an CS No. 529/11 Page No. 13 of 39 election or selection?OPP (3) Whether the notice of General Body Meeting to be held on 13.06.2009 was duly received by the plaintiff and other members of Guru Nanak Satsang Sabha?OPP (4) Whether the defendant no. 2 Brig. Harjit Singh and Mr. B. S. Kapoor are not the members of Guru Nanak Satsang Sabha and are ill-legible to cast vote and contest the election as per Rules and Regulations of by-laws of the Guru Nanak Satsang Sabha? OPP (5) Whether the manner in which the Managing Committee of the Guru Nanak Satsang Sabha has been elected was never objected to at any stage by the plaintiff or any member of the Guru Nanak Satsang Sabha?OPD (6) Whether the plaintiff is entitled to the relief of declaration, permanent and mandatory injunction as claimed in the plaint?OPP CS No. 529/11 Page No. 14 of 39 (7) Relief.
No other issue was pressed for by the parties.
20. Plaintiff examined himself as PW-1 and Smt. Kimmi Brara Marwaha as PW-2 in PE and PE was closed on submissions made by counsel for plaintiff before Court on 07.05.2012. PW-1 in his evidence relied upon his affidavit in evidence vide Ex. P-1, copy of notice dated 29.04.2009 vide Ex. PW-1/A, copy of annual report of defendant no. 1 vide Ex. PW-1/B. Certain documents were admitted on behalf of defendants during A/D of documents. PW-1 has relied upon them being Ex. D-1 which is copy of Agenda for Annual General Body Meeting, Ex. D-2 which is copy of notice dated 17.05.2010, Ex. D-3 which is copy of annual report for year 2009-10 of defendant no. 1, Ex. D-4 which is copy of notice dated 01.10.2009, Ex. D-5 which is copy of letter dated 05.05.2009, Ex. D-6 which is copy of list of life members of defendant no. 1 as on 30.06.2008, Ex. D-7 which is copy of Memorandum of Association of defendant no. 1, Ex. D-8 which is copy of notice dated 06.06.2009, Ex. D-9 which is copy of minutes of meeting dated 21.05.2009 in respect of meeting of defendant no. 1 held on 16.05.2009, Ex. D-10 which is copy of resolution dated 16.05.2009, Ex. D-12 which is copy of circular dated 15.06.2009, Ex. D-13 which is copy of notice dated CS No. 529/11 Page No. 15 of 39 20.06.2009. PW1 further relied upon documents discovered on oath by defendants after plaintiff moved an application U/o 11 Rule 12 r/w Sec. 151 CPC. These documents are Ex. P1/D1 which is list of life members and ordinary members of defendant no. 1 as on 31.03.2006, Ex. P1/D2 to Ex. P1/D7 which are membership forms of Sardarni Jasleen H. Singh, Brig. Harjeet Singh and B. S. Kapoor alongwith their membership fee- receipts, Ex. P1/D8 which is copy of minute book of defendant no. 1 for period from December, 2008 to 10.06.2009 and Ex. P1/D9 which is copy of minute book of defendant no. 1 for period from 13.06.2009 to 10.12.2011. Photographs Ex. PW-1/D1 to Ex. PW-1/D4 were exhibited in cross examination of PW-1. Copy of minutes of Annual General Body Meeting of defendant no. 1 held on 13.06.2009 was also exhibited in cross examination of PW-1 vide Ex. PW-1/D5. Copy of minutes of meeting of Managing Committee held on 17.01.2009 was also exhibited in cross examination of PW-1 vide Ex. PW-1/D6. PW-2 in her evidence relied upon her evidence by way of affidavit vide Ex. P-2. She has not exhibited or proved any other document on court record.
21. Defendant in defence evidence examined Brig. Harjit Singh as DW-1 and DE was closed on submissions of counsel for defendant made before Court on 04.06.2012. DW-1 in his CS No. 529/11 Page No. 16 of 39 evidence has relied upon his affidavit in evidence which is Ex. DW-1/A. Ex. D-1/X which is copy of circular dated 01.01.2011 was exhibited in cross examination of DW-1.
22. I have heard arguments addressed by respective counsels and perused the record including written arguments filed by both plaintiff and defendants.
23. My issue-wise finding is as below: -
ISSUE NO.1 Burden of proving this issue was upon defendants. During course of final arguments, membership form of plaintiff was called from defendant no. 1 and copy of membership form of plaintiff was filed by counsel for defendants before Court on 14.05.2013. Original of this membership form was shown to the Court as well as to plaintiff and his counsel. Plaintiff/counsel for plaintiff when shown original membership form of plaintiff by counsel for defendants did not dispute its authenticity. In membership form of plaintiff, while obtaining membership of defendant no. 1, plaintiff has mentioned his office, permanent residence address and permanent address to be A-6/20, Vasant Vihar, New Delhi. Plaintiff in his evidence by way of affidavit as well as plaint filed by him has mentioned his address to be A-6/20, Vasant Vihar, New Delhi. Plaintiff in his cross CS No. 529/11 Page No. 17 of 39 examination has stated that he is residing at the address mentioned in the affidavit filed in examination-in-chief and as mentioned while recording his evidence since 2005. He has further stated that House bearing No. A-6/20, Vasant Vihar is owned by Smt. Darshan Brara who is his mother-in-law. He has further stated that he does not have any documentary proof either ration card, voter card, driving licence, passport or any other document to show that his address to be A-6/20, Vasant Vihar. He in his cross examination has further stated that he has mentioned his residential address as A-6/20, Vasant Vihar, New Delhi in application form for obtaining membership of the Sabha. He in his cross examination has admitted four photographs shown to him in his cross examination Ex.
PW-1/D1 to Ex. PW-1/D4 to be photographs of his address at 4, Rajdoot Marg, Diplomatic Enclave, Chanakyapuri, New Delhi. He has volunteered that this house is of his parents and his second house. He has further stated that his voter card and passport have been prepared from this very address since he is residing at this address i.e. 4, Rajdoot Marg, Diplomatic Enclave, Chanakyapuri, New Delhi since 1985. He has further stated that he had not disclosed this address in the membership form at the time of obtaining membership of the Sabha. He has denied the suggestion that a person who is residing at Rajdoot Marg cannot become life member of the Sabha. PW-2 who is CS No. 529/11 Page No. 18 of 39 wife of plaintiff in her cross examination has stated that Property bearing No. A-6/20, Vasant Vihar, New Delhi is owned by her mother Smt. Darshan Brara and that her in-laws are residing at 4, Rajdoot Marg, Chankyapuri and that it is her matrimonial home. She in her cross examination has further stated that she is permanently residing at her matrimonial home at Chankyapuri. She has admitted that her husband is permanently residing at 4, Rajdoot Marg, Chankyapuri. From cross examination of plaintiff and his wife as mentioned above, it is clear that plaintiff and his wife are permanent residents of House No. 4, Rajdoot Marg, Diplomatic Enclave, Chankyapuri, New Delhi. Plaintiff in his cross examination has admitted to have mentioned his address while obtaining membership of defendant no. 1 to be A-6/20, Vasant Vihar, New Delhi. Counsel for plaintiff during course of arguments submitted that mentioning of address of plaintiff's mother-in-law cannot be said to be mentioning of false address by plaintiff while obtaining membership of defendant no. 1. Technically speaking, a person can be said to be permanent resident of a house where he is residing permanently and has relevant identity documents of this address. Plaintiff in his cross examination has admitted that his voter card and passport have been prepared from his address of 4, Rajdoot Marg, Diplomatic Enclave, Chanakyapuri, New Delhi and has further stated that he is residing at this address since CS No. 529/11 Page No. 19 of 39 1985 meaning thereby that plaintiff is permanent resident of House No. 4, Rajdoot Marg, Diplomatic Enclave, Chanakyapuri, New Delhi and not of House No. A-6/20, Vasant Vihar, New Delhi. So in these circumstances, it can be said that defendants have been able to discharge their burden qua this Issue and this Issue is accordingly decided in favour of defendants and against plaintiff. It is held that plaintiff has obtained membership of defendant no. 1 by giving his false/incorrect address.
ISSUES NO. 2 & 3.
Both issues No. 2 and 3 are being taken up together as they are interlinked and Issue No. 3 has bearing upon issue No. 2. Burden of proving Issues No. 2 and 3 was upon plaintiff. Plaintiff in his pleadings has stated that defendants no. 2 to 13 were elected as members of Managing Committee of defendant no. 1 through selection and not through election. Plaintiff in his affidavit has deposed that he was shocked to know that as per notice dated 06.06.2009, defendants adopted totally illegal procedure to constitute Managing Committee. He deposed that in no case selection can replace election. He deposed that method adopted by defendants was against letter and spirit of rules governing working of the Sabha. He deposed that it also restricted right of members to contest elections. Plaintiff has been given various suggestions in his cross-examination by CS No. 529/11 Page No. 20 of 39 defendant in which word 'formation/selection' has been extensively used which suggests that even defendants are agreeing to the fact that Managing Committee elected on 13.06.2009 was by way of selection/imposition and not by way of election. Some of the suggestions given on behalf of defendants to plaintiff in this regard are as follows:
"It is correct that no nomination form was filled by any of the members of the Sabha for being elected in the Managing Committee of the Sabha for which the present managing committee was formulated. It is wrong to suggest that new managing Committee was properly selected as per rules, regulations and bye-laws of the Sabha. It is wrong to suggest that all rules, regulations and bye-laws of the Sabha were followed while selection/formation of the new managing committee."
No suggestion has been given to plaintiff in his cross- examination to counter deposition of plaintiff that the manner in which managing committee was selected restricted right of members to contest elections which in law means implied admission on part of defendants to the fact that the manner in which managing committee was selected on 13.06.2009 restricted right of other members of Sabha to contest elections.
CS No. 529/11 Page No. 21 of 39As per rules and regulations of defendant No.1 (Admitted document), one of function of General Body is to elect members of Managing Committee and office bearers annually at a meeting duly convened according to rules. Rules further provide that General Body meetings will be held in the month of May and in the event of the meeting not being held in May, for any reason whatsoever, it will be held automatically at 9:00 AM on the Second Saturday of the following month or June. Rules further provide that atleast 21 days notice shall be given to call the General Body Meeting. Rules provide that Managing Committee shall be elected by the General Body.
Vide Ex. PW-1/A proved on record by plaintiff, plaintiff has brought on record letter dated 29.04.2009 purportedly written by 30/31 members of defendant no. 1 to President of defendant no. 1 in which it has been stated that we understand that about 85 persons are being considered for new membership and many applications have discrepancies and shortcomings as found therein. It is further stated that it is on record that a sub- committee appointed for examining the applications for new membership has also pointed such discrepancies. The secretary has not been given any opportunity to scrutinize the 85 applications as statutorily required. It is further stated that hence without vetting of applications by the secretary in terms of Rule 4 CS No. 529/11 Page No. 22 of 39 and 9 of Rules and Regulations and about bonafides of the applicants and their submissions before the Managing Committee with his remarks/recommendations for approval, no membership status can be granted to the said persons. It is further stated that it is also on record that the President, Joint Secretary and some office-bearers have tried to rush through with the approval of applications in a clandestine manner, in contravention of the Rules and Regulations of the Sabha...... It is further stated that we therefore earnestly appeal to you that such divergence of opinion among members of the Managing Committee on the vital issue of Life membership has far reaching ramifications and the same, therefore,needs to be put on hold and the Special General Body Meeting be convened immediately to discuss and debate the matter regarding applications for membership. It is further stated that in view of the facts and the circumstances of the case mentioned above, it is proposed to move the following Resolution at the Special General Body Meeting: "Resolved that the present Managing Committee be dissolved and an ad-hoc Committee comprising five upright members be set up to look-after the affairs of the Sabha pending elections at the annual General Body Meeting which may be deferred to a later date."
CS No. 529/11 Page No. 23 of 39Minutes book of defendant no.1 has been proved on record by plaintiff vide Ex. P1/D8. In minutes of meeting dated 16.05.2009 signed and approved on 21.05.2009 (Ex.D9- Admitted document) while dealing with letter/notice dated 29.04.2009 at Agenda point No.5 it has been recorded as below:
"Agenda Point No.5: Issue of Notice for Special General Body meeting by the Managing Committee as Mandatory requirement of the NOTICE dt. 29 April by 31 members of the Sabha to the President for calling such a meeting.
President informed the members that in view of the present circumstances Sdr. J. S. Oberoi, prominent member of the Sabha, has been making efforts for forming a totally new Managing Committee of upright members through consensus. The new proposed Managing Committee will exclude all members of the present Managing Committee and even those who have been members of the Managing Committee during the last five years.
In this connection Sdr. J. S. Oberoi has been in touch with the President and some other Managing Committee members. After brief discussion all members agreed that Sdr. J. S. Oberoi should be given full co-operation and encouragement as CS No. 529/11 Page No. 24 of 39 coordinator for formation of such a committee. The members were informed that Sdr. J. S. Oberoi has already requested Brig. Harjeet Singh of D-6/7, Vasant Vihar to head such a Committee. He would be at liberty to choose his own team of upright members on merit. The formation of the proposed Managing Committee will be through Consensus and will be got approved in annual General Body Meeting which may be held on 27.06.2009. Till then, the present Committee will continue to function. Consequently, a Resolution was passed and duly signed by all the members as at Annexure. It was also decided that in view of the Resolution passed by the Managing Committee the 31 members who had called for the Special General Body Meeting will be suitably informed by the President through a letter."
Vide Ex. PW-1/A, 30/31 members of defendant no. 1 requested for dissolving present Managing Committee and further requested for setting up ad-hoc Committee comprising 5 upright members to took after affairs of defendant no. 1 pending elections at AGM which may be deferred to a later date. Vide Ex. PW-1/A request was made to constitute ad-hoc Committee till elections for Managing Committee of defendant no. 1 are held and not to select new Managing Committee which was factually done by outgoing Managing Committee. From CS No. 529/11 Page No. 25 of 39 language as used in Ex. D-9 as mentioned above, it is clear that outgoing Managing Committee imposed new Managing Committee upon members of defendant no. 1 by officially recording in Ex. D-9 that formation of the proposed Managing Committee will be through consensus and will be got approved in Annual General Body Meeting which may be held on 27.06.2009. In Ex. D-10 i.e rough draft of resolution passed by Managing Committee at its meeting held on 16.05.2009, the version is a bit different. In it, it has been recorded as below:-
"We the undermentioned office bearers and members of the Managing Committee of Sri Guru Nanak Satsang Sabha Vasant Vihar New Delhi do hereby resolved that in the wider interest of the Sabha and for maintenance of harmonious relations amongst the members the present Managing Committee be dissolved and instead to upright and revered members of the Sabha namely Sdr. J. S. Oberoi and Brig. (Retd.) Harjeet Singh the unanimously authorized to constitute a new Managing Committee and that their names be got approved by consensus at the next AGM of the Sabha".
In Ex. D-9, it has been mentioned that Sdr. J. S. Oberoi has requested Brig. Harjeet Singh to head such a committee whereas in Ex. D-10, it has been mentioned that Sdr. J. S. CS No. 529/11 Page No. 26 of 39 Oberoi and Brig. (retd.) Harjeet Singh be unanimously authorized to constitute a new Managing Committee.
Difference in Ex. D-9 and Ex. D-10 shows that new Managing Committee comprising of defendants no. 2 to 13 was somehow imposed and no election was indeed conducted on 13.06.2009 while electing new Managing Committee. Further the fact that new Managing Committee selected on 13.06.2009 was imposed upon members of defendant No. 1 becomes further clear in view of rules and regulations of defendant no. 1. Rule 4 C (ii) of Rules and Regulations of defendant no. 1 provides that "when atleast 20 members or 1/4th of the total number of members whichever is less, give in writing a notice for holding of a special meeting, notice of such meeting shall be issued by the Managing Committee within 15 days from the date of receipt of the requisition. It will be mandatory to call the special meeting within a period of 4 weeks from the date of notice by the Managing Committee". Vide Ex. PW-1/A, 30/31 members of defendant no. 1 called for calling Special General Meeting on 29.04.2009. Number of persons who asked for calling Special General Body Meeting meets number of members criteria as laid down in rule 4 C (ii) of Rules and Regulations of defendant no. 1. As per Rule 4 C (ii) calling of Special Meeting within a period of 4 weeks from date of notice CS No. 529/11 Page No. 27 of 39 by the Managing Committee is mandatory. Receipt of Ex. PW-1/A as such has not been disputed by defendants as the same finds mentions in Ex. D-9 and other exhibits. Why Special General Body Meeting was not called by the then Managing Committee in terms of Rule 4 C (ii) of Rules and Regulations of defendant No. 1 has not been explained by defendants (though in Ex. D-8, an attempt has been made by earlier Managing Committee to explain the same but the same is not convincable and smacks foul). All this implies that an attempt was made by outgoing Managing Committee to install people of their choice in new Managing Committee for which right to contest was open to all the eligible members of defendant no. 1 but they could not exercise because of selection of new Managing Committee by outgoing Managing Committee.
Plaintiff in his affidavit has deposed that like him, many other bonafide members of the Sabha also did not receive any such notice (plaintiff in his affidavit is referring specifically notice Ex. D-8). Why plaintiff did not receive Ex. D-8 need not to be dealt with in view of my finding with regard to issue No. 1 but whether other members of defendant no. 1 received the same has to be seen. There is no cross-examination of plaintiff with regard to his deposition to the effect that like him, many other bonafide members of the Sabha also did not receive any such CS No. 529/11 Page No. 28 of 39 notice which implies admission of this fact in law. No suggestion has been given to plaintiff in his cross-examination controverting this part of his deposition. List of life members of defendant no.1 as on 30.06.2008 has been proved on record by plaintiff vide Ex. D-6. As per Ex. D-6, there were about 240 life members of defendant no.1 on 30.06.2008 (some members have noting of expired in front of their name). As per Ex. PW-1/D-5 put to plaintiff in his cross-examination by defendants themselves, Annual General Body Meeting on 13.06.2009 was attended by 58 members. Only 58 members attended AGM held on 13.06.2009 despite number of life members being about 240/more than 240 if later admission of life members before 13.06.2009 is taken into account, then attending of AGM by 58 members only on 13.06.2009 in the circumstances of present case as discussed above smacks foul on part of outgoing Managing Committee/ present defendants.
Further plaintiff has proved on record Ex. D-1 and Ex. D-2 in order to show manner of election of defendant no.1 and in election/selection held on 13.06.2009 the procedure for elections as reflected from Ex. D-1 and Ex. D-2 has not been followed.
CS No. 529/11 Page No. 29 of 39In view of my aforesaid discussion, it is clear that plaintiff has been able to discharge his burden qua issues no. 2 and 3 beyond preponderance of probabilities. Accordingly issues no. 2 and 3 are decided in favour of plaintiff and against defendants.
ISSUE NO. 4Burden of proving this issue was upon plaintiff. Plaintiff in his affidavit has deposed that defendant no.2 is not even a bonafide member of the Sabha. He has further deposed that similarly another member of the Managing Committee namely Sdr. B. S. Kapoor who has been nominated as member is also not member of the Sabha. He has deposed that these two persons can in no circumstances be the members of the Executive Committee, as they were not eligible to cast vote and contest election. He further deposed that list dated 30.06.2008 (Ex. D-6) does not reflect name of these persons. Plaintiff has further deposed that membership register as well as membership has been tempered with. Plaintiff in his cross- examination was put document Ex. PW-1/D-6 and plaintiff after seeing the same stated that the same may be correct but list of life member Mark X is wrong. Plaintiff further stated that as per Mark X, life membership no. L-254 is of Brig. Harjeet Singh and L-255 is of B.S. Kapoor. Further specific question was put to plaintiff as to whose membership no. is L-254 and L-255 to CS No. 529/11 Page No. 30 of 39 which plaintiff answered that he can not say.
By whatever has been stated by plaintiff in his cross- examination as mentioned in last para, it becomes clear that plaintiff has not disputed genuineness of Ex. PW-1/D-6. Ex. PW-1/D-6 is minutes of meeting of Managing Committee of defendant no.1 held on 17.01.2009. Plaintiff in cross- examination of DW-1 has asked question regarding date mentioned on top of Ex. PW-1/D-6 (though in cross-examination of DW-1, he has instead of referring to Ex. PW-1/D-6 directly has referred the same document as part of Ex. P-1/D-8- Both the documents are same) to which DW-1 has stated that the said document was issued on 17.01.2009 and again said that it may not have been issued on 17.01.2009. To further question asked in this regard, DW-1 has stated that the question asked has to be answered by previous Managing Committee who conducted the meeting. He further stated that he took over Managing Committee in June, 2009 and the document pertain to December, 2008 / January, 2009. He further stated that since the minutes dated 24.12.2008 were not brought to his notice, there was no need to make any correction. No suggestion has been given on behalf of plaintiff to DW-1 that document Ex. PW-1/D-6 (part of Ex. P-1/D-8) is a false/manufactured document. Ex. PW-1/D-6 (part of Ex. P-1/D-8) is minutes of CS No. 529/11 Page No. 31 of 39 meeting of Managing Committee of defendant no. 1 held on 17.01.2009. It bears date 24.12.2008 on top of it. During course of arguments, it was argued on behalf of plaintiff that this document is a manufactured one but no suggestion in this regard has been given to DW-1 as mentioned by me earlier. Further plaintiff in his cross-examination has not disputed genuineness of this document as noted by me earlier. On account of what has been stated by DW-1 in his cross- examination as recorded by me while discussing his cross- examination, plaintiff if wanted authenticity of this document to be challenged, should have called any member of earlier Managing Committee by moving appropriate application in this regard and asked from him regarding veracity of this document but by not doing so and in circumstances as mentioned above, I am of the view that date of 24.12.2008 as mentioned on top of Ex. PW-1/D-6 may be result of typographical mistake and it can not be said that plaintiff proved this document to be false/manufactured. In Ex. PW-1/D-6, at Sr. No. F, it has been clearly mentioned that new applicants as in annexure were approved for the Sabha membership meaning thereby that new members were added in list of members of defendant no.1 after 30.06.2008(Ex. D-6).
CS No. 529/11 Page No. 32 of 39Plaintiff has further tried to cast doubt on membership of defendant no.2 and Sdr. B.S. Kapoor by asking from DW-1 in his cross-examination regarding document at Point V of Ex. P-1/D-1. Ex. P-1/D-1 is list of life members and ordinary members of defendant no.1. DW-1 in his cross-examination has stated that he is not aware that on 17.01.2009, how many applicants were approved and how many were pending. He further stated that note written by Dr. O.S. Prem (Secretary at that time) dated 30.08.2009 was on instructions of Sub- committee appointed by him to go into the detail of the pending applications. He has further stated that it is correct that as per note at Point B of Ex. P-1/D-9, 85 applications were pending before we took over the Managing Committee.
Counsel for plaintiff during course of arguments argued that note at Point V of Ex. P-1/D-1 initially mentions that sanction for life membership of applicants from Sr. No. 252 to 333 is on hold through relevant minutes of the Managing Committee and the Annual Report for the year 2008-2009 and that in a later note on same page dated 30.08.2009 mentions that Managing Committee at its meeting held on 23.12.2008 decided to approve the application of 25 applicants. It further says that subsequently the minutes of this meeting were duly confirmed. It further says that under the circumstances the CS No. 529/11 Page No. 33 of 39 above note of Secretary is not factually correct as the membership of 25 applicants from Sr. No. 253 to 277 stands already approved. Counsel for plaintiff argued that starting Sr. No. of membership in both these two notings is different i.e. first noting says No. to start from 252 and second noting says No. to start from 253 which shows clear manipulation by defendants with regard to number of members approved/kept on hold for membership of defendant no. 1. He further argued that rather Sr. No. in noting dated 30.08.2009 has been tempered from 252 to 253 as number of 25 applicants ends on 277 if number starts from 253. DW-1 in his cross-examination to a question asked from him has replied that Managing Committee has not approved membership of L-252. In case first noting at point V of Ex. P-1/D-1 by Secretary of earlier Managing Committee is taken to be correct, then in case if Managing Committee has not approved membership of L-252 (as stated by DW-1 in his cross- examination), earlier noting becomes factually incorrect and rather noting dated 30.08.2009 becomes factually correct. Further as mentioned earlier, plaintiff in his cross-examination has not doubted authenticity of Ex. PW-1/D-6 which records approval of applications for Life/Annual memberships and earlier minutes of meeting of Managing Committee of defendant no.1 dated 23.12.2008 (part of Ex. P-1/D-8) clearly mentioning approval of 25 applications for Life/Annual memberships getting CS No. 529/11 Page No. 34 of 39 approved, averments of plaintiff in this regard appears to be baseless. Plaintiff in his cross-examination on a question put to him has responded that he can not say whose membership No. is L-254 and L-255. Plaintiff in answer to this question has not stated that infact membership No. L-254 and L-255 do not exist. This fact further disproves contention of plaintiff in this regard.
One more objection was taken on behalf of plaintiff during course of final arguments that Sdr. B. S. Kaoor has sponsored defendant no. 2 whereas his Life membership No. is after defendant no. 2 i.e. membership no. of defendant no. 2 is L-254 whereas membership no. of B. S. Kapoor is L-255 which fact shows clear manipulation on part of defendants. No doudt factually this contention of plaintiff is correct but that if one sees receipt date of deposit of amount for life membership as mentioned in front of names of defendant no. 2 and B. S. Kapoor in Ex. P-1/D-1, it becomes evident that payment of life membership fee was made by Mr. B. S. Kapoor on 13.04.2008 whereas defendant no. 2 paid membership fee on 13.07.2008 i.e. much later than B. S. Kapoor. Technically life membership number of defendant no. 1 should have been allotted to Mr. B. S. Kapoor first and thereafter number should have been allotted to defendant no. 2 but not doing of the same does not prove that some sort of tempering has been done by defendants/Managing CS No. 529/11 Page No. 35 of 39 Committee Members of earlier Managing Committee. On perusal of Ex. P-1/D-1, it transpires that similar mistake has been done in case of members bearing membership number 246 and 247. It may be a clerical mistake. From perusal of Ex. P-1/D-1, it is clear that Mr. B. S. Kapoor deposited membership fee much earlier than defendant no. 2. Rule 4 of Rules and Regulations of defendant no. 1 provide that a person shall be eligible to become a member of General Body if he has attained age of 18 years, is a resident of Vastan Vihar or adjoining colonies or owns a house/residential plot or a shop or shop plot therein and is of sound mind and has not been guilty of offence involving moral turpitude and is solvent and who has paid or donated minimum amount prescribed in Rule 9 and has been approved for membership. Perusal of Ex. P-1/D-1 shows that address of both defendant no. 2 and Mr. B. S. Kapoor is of Vastan Vihar. No issue regarding their age has been raised by plaintiff. Nothing has been brought on record by the plaintiff to show that both these persons are not of sound mind or have been guilty of an offence involving moral turpitude. It has also not been proved on record by plaintiff that both these persons are insolvent or that both of them have not made payment of amount as prescribed under Rule 9 of Rules and Regulations of defendant no. 1. Only objection to their membership appears to be that of approval of their membership by Managing Committee CS No. 529/11 Page No. 36 of 39 of defendant no. 1 which aspect has already been dealt with by me.
In view of my discussion with regard to this issue, I am of the view that plaintiff has failed to discharge his burden qua this issue and accordingly this issue is decided in favour of defendants and against plaintiff.
ISSUE NO. 5Burden of proving this issue was upon defendants. DW-1 in his affidavit has deposed that new Managing Committee was elected in the AGM held on 13.06.2009 as unopposed without any hindrance or obstruction from any corner. Nothing has been asked from DW-1 in his cross examination in this regard by or on behalf of plaintiff which in law implies admission of this averment of DW-1 as mentioned in his affidavit. Plaintiff in his cross examination to a question asked from him in this regard has stated that he cannot show any document to show that he or his wife had raised objection in the General Body Meeting held on 13.06.2009 regarding formation of the new Managing Committee. He has volunteered that they raised verbal objection. Suggestion to this effect has been denied by plaintiff in his cross examination. Plaintiff has denied the suggestion that no member of the Sabha raised any objection regarding for CS No. 529/11 Page No. 37 of 39 formation/selection of the new Managing Committee. Minutes of AGM held on 13.06.2009 have been exhibited and proved on record vide Ex. PW-1/D-5. In Ex. PW-1/D-5, there is no mention of any protest by any of the member to the selection of Managing Committee of defendant no. 1. Though formal protest in this regard has been proved on record by plaintiff vide Ex. D-13 but Ex. D-13 is dated 20.06.2009 and no objection of any sort from any quarter while selection of Managing Committee was being done on 13.06.2009 by AGM has been proved on record by plaintiff. Ex. D-13 is a subsequent document and it cannot be said that election/selection of Managing Committee of defendant no. 1 was objected to by plaintiff or any other member of defendant no. 1 at any stage of election/selection. In these circumstances, it can be said that defendants have been able to discharge their burden qua this issue beyond preponderance of probabilities. Accordingly this issue is decided in favour of defendants and against plaintiff.
ISSUE NO. 6Burden of proving this issue was upon plaintiff. In view of my finding with regard to Issues No. 2 and 3, I am of the view that plaintiff has been able to discharge his burden qua this issue and it is therefore held that meeting held on 13.06.2009 was illegal, null and void and constitution of Managing CS No. 529/11 Page No. 38 of 39 Committee and selection/nomination of defendants to Managing Committee is illegal.
ISSUE NO. 7/RELIEF In view of my findings with regard to Issues No. 2, 3 and 6, I hereby decree suit of plaintiff. AGM of defendant no. 1 as held on 13.06.2009 is declared to be illegal, null and void and constitution of Managing Committee and selection/nomination of defendants to the Managing Committee is declared to be illegal. Defendants, their agents and their assignees etc. are permanently restrained from conducting activities/affairs of defendant no. 1. Defendants are directed to hold Special General Body Meeting as per by-laws of the Sabha/defendant no. 1 and hold elections in terms thereof. No cost is being awarded in favour of plaintiff because of my finding with regard to Issue No. 1.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court on 05.12.2013 Sonu Agnihotri JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
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