Bangalore District Court
Sri. C.N.Dinesh Malavaiah vs Indiranagar Club (Regd) on 23 December, 2020
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-75)
Dated this 23rd Day of December, 2020
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. B.A. LL.B.
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 25642/2009
PLAINTIFF: SRI. C.N.DINESH MALAVAIAH
Son of Sri. Nagamalavaiah
Aged about 37 years
Residing at No.488, 3rd Cross
7th Main, HAL II Stage
BANGALORE-560 008.
(REP BY: SRI. HARISH V.S, ADVOCATE)
V/s
DEFENDANTS: 1 INDIRANAGAR CLUB (REGD)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
Represented by its Hon'y Secretary
2 SRI. MUNEGOWDA
President
Indiranagar Club (Regd.)
2
OS.25642/2009
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
3 SRI M. NAGENDRA
Honorary Secretary
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
4 SRI M.D. SRINIVASAN
Vice President
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
5 DR. M. R. RAMESH
Hon'y Treasurer
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
6 SRI. S. ASHOK
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
7 SRI. V.V. KRISHNA REDDY
3
OS.25642/2009
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
8 SRI. A.A. ANNAIAH
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
9 SRI. A.V.GOPAL
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
10 DR. L. CHANDRAMMA
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
11 SRI. M. K. KURIAKOSE
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
4
OS.25642/2009
12 DR. K.M. CHANDER
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
13 SRI. S. RAJKUMAR
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
14 SRI. V. SRIRAMA REDDY
Committee Member
Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
15 SRI. B.N.S.REDDY, I.P.S.
Son of late B.N.N. Reddy, major
Residing at D.20, J.B. Nagar
HAL III Stage
Bangalore-560 075.
AND GAINFULLY EMPLOYED AS:
Deputy Commissioner of Police
(South East)
Electronic City
Bangalore-560 010
5
OS.25642/2009
16 PROF S. NAGARAJA REDDY
Care: Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
17 SRI. P. MUNISWAMY IPS.,
Care: Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
18 SRI. H.C.THIMMAIAH
Care: Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
19 SRI. R.C.PUROHIT
Care: Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
20 SRI. K.L.APPI REDDY
Care: Indiranagar Club (Regd)
9th Main, 4th Cross
HAL II Stage
Bangalore-560 008.
(D1 to 3 REP BY - G.SUKUMARAN & ASSOCIATES)
(SUIT AGAINST D5 - DISMISSED)
(D4, 6 TO 20 - PLACED EXPARTE)
6
OS.25642/2009
Date of Institution of the suit 30/03/2009
Nature of the Suit (Suit on pro-note, suit for
DAMAGES &
declaration and possession, suit for injunction,
COMPENSATION
etc.)
Date of the commencement of recording of the
23/01/2015
Evidence.
Date of pronouncement of Judgment 23/12/2020
Year/s Month/ Day/s
Total duration
s
11 08 24
JUDGMENT
Plaintiff has filed the instant suit against defendants for the relief of declarations, injunctions, recovery of damages and cost.
FACTS OF THE CASE:
2. 1st defendant is a Registered Members Club. It is governed by rules, regulations and bylaws. Defendants 2 to 5 were the President, Vice President, Secretary and Treasurer and 7 OS.25642/2009 defendants 6 to 14 were the committee members of the 1 st defendant Club for the year 2008-09. Defendant No.15 is the former president of 1st defendant club. He is an IPS officer. He is having control over the managing committee. Defendants 16 to 20 are the members of 1st defendant club. Plaintiff contends that, he was the permanent member of the 1 st defendant club. He also served as Secretary of the 1st defendant club for the period 2006- 07 and 2007-08. He contends that, in the year 2005, there was a complaint against the members of the managing committee of the year 2004-05 regarding diversion and mis-utilization of funds. To conduct enquiry, a 5 Man Enquiry Committee was constituted. The said enquiry committee, after conducting enquiry submitted report inducting defendants 3 to 5. After submission of report by the 5 Man Enquiry Committee, in the General Body Meeting it was resolved to appoint a 3 Man Committee to recommend punishment to defendants 3 to 5. The said 3 Man Committee submitted report recommending some 8 OS.25642/2009 actions against defendants 3 to 5. Plaintiff contends that, in the year 2006 to 2008, when he was the Secretary of the 1 st defendant Club, defendants 3 to 5 approached him and requested to intercede on their behalf and do the favor by dropping the proceeding against them. Plaintiff contends that, he refused to do favor to defendants 3 to 5. Since then defendants 3 to 5 and their well-wishers i.e., defendants 6 to 20 turned hostile towards him. They were planning to take revenge against him. As per their strategy, they collected the signatures of 110 members of the 1st defendant Club and lodged a complaint dated:04/06/2008 before the Registrar of Societies against Managing committee of the year 2007-08. Defendant No.3, 4, 7, 9, 10 to 14, 16 & 17 are the signatories to the said complaint. The District Registrar of the Societies appointed one K.H.Thimmaiah the Joint Director and Internal Auditor, Karnataka State Co-operative APEX Bank Limited, as enquiry officer to conduct enquiry regarding the complaint given by 110 members of the 1st defendant Club against 9 OS.25642/2009 managing committee of the year 2007-08. K.H.Thimmaiah after conducting enquiry submitted report to the District Registrar.
Against the said report, the managing committee of the club filed appeal before Karnataka Appellate Tribunal. The District Registrar after going through the report submitted by K.H.Thimmaiah has issued show-cause notice to the managing committee of the 1st defendant club for the year 2007-08. After receipt of show-cause notice, the managing committee has given reply dated:20/08/2008. The District Registrar considering the reply dated:20/08/2008, in his order dated:26/08/2008 has opined that, the findings recorded by K.H.Thimmaiah in his report are not of serious nature and they are regarding procedural aspects, therefore there is no necessity to take any action against the members of the managing committee and by stating that, the term of the Managing committee for the year 2007-08 is coming to an end, directed the managing committee to hold the elections in time. Accordingly, the elections were 10 OS.25642/2009 conducted to elect the managing committee of the year 2008-09. In the elections, defendants 2 to 14 were elected as members of the managing committee for the year 2008-09. Plaintiff contends that, defendants 2 to 20 who are/were hostile towards him and hatching plan to take revenge, placing reliance on the report submitted by K.H.Thimmaiah against managing committee of the year 2007-08 has issued show-cause notice dated:22/08/2008 to him. After receipt of the said show-cause notice, he gave reply dated:06/11/2008 and the same was served to the 1 st defendant on 07/11/2008. He submits that, in addition to giving reply to the show-cause notice, he filed OS.No.7899/2008 in CCH-38, questioning the legality of the show-cause notice and sought the relief of injunction not to conduct any proceedings on the basis of the said show-cause notice. Plaintiff contends that, defendants 2 to 14 being the members of managing committee of the 1st defendant Club for the year 2008-09 constituted a 3 Man Enquiry Committee consisting of defendant No.16, 17 & 18 to 11 OS.25642/2009 conduct an enquiry regarding various charges of financial and administrative regularities during the year 2007-08. To assist the said committee, two more committees have been constituted namely Finance Committee comprising defendant No.19 & Technical Committee comprising defendant No.20 and others. Plaintiff contends that, defendants 16 & 17 are the signatories to the complaint dated:04/06/2008. The Managing committee of the 1st defendant Club has made two complainants i.e., defendant No.16 & 17 as members of 3 Man Enquiry Committee to conduct enquiry about the allegation made by them. Thus the managing committee of the 1st defendant club has made complainants as judges to decide their cause. Plaintiff contends that, the managing committee of the 1st defendant has no authority to constitute 3 Man Enquiry Committee to conduct enquiry against the members of the managing committee of the previous year. In addition to that, making complainants themselves as judges to decide their own cause is flattened transgression of fundamental 12 OS.25642/2009 principles of natural justice. Therefore constitution of 3 Man Enquiry Committee is illegal and the said committee has no power to conduct enquiry. Plaintiff contends that, on 10/04/2009, the 3 Man Enquiry Committee submitted report to 3 rd defendant - the Secretary of 1st defendant Club stating that, the President & Secretary (plaintiff) of the 1st defendant Club for the year 2006-07 & 2007-08 by violating the bylaws of the Club have made reclassification of membership of two members and advised to take action against them. Plaintiff contends that, 3 rd defendant acting on the instructions of defendants 2 & 4 to 15 issued another show-cause notice dated:30/11/2008 to him alleging that, in the year 2006-07 he has illegally given membership to two persons and called upon him to give reply within 3 days. Though the said notice is dated:30/11/2008 it was posted on 02/12/2008 and it was served to him on 06/12/2008. Therefore he was unable to give reply to the said notice within 3 days from 30/11/2008. plaintiff contends that, without giving an opportunity to him to 13 OS.25642/2009 give reply to the notice dated:30/11/2008 and before the service of said notice to him, on 04/12/2008 the managing committee of the 1st defendant Club has passed an order suspending him from the 1st defendant Club. In this regard, the 1 st defendant sent Letter dated:05/12/2008 to him. After receipt of the said letter, he filed OS.No.8376/2008 questioning the suspension order. Plaintiff contends that, the 3 Man Enquiry Committee has issued notice dated:06/01/2009, calling upon him to appear before it for enquiry relating to the purchase of projector, crackers and thambula. On 19/12/2008 he has given reply stating that, the District Registrar has already conducted enquiry in respect of purchase of above items, therefore the committee cannot once again conduct enquiry on the said aspect. The 3 Man Enquiry Committee has issued notices to him on 06/01/2009, 14/01/2009 & 23/01/2009 calling upon him to appear before it on 14/01/2009, 17/01/2009 & 03/02/2009 respectively. Plaintiff contends that, on 09/02/2009, the 3rd defendant has put up a notice in the notice 14 OS.25642/2009 board of the 1st defendant Club stating that, the managing committee in its meeting dated:07/02/2009 has resolved to terminate his (plaintiff) membership from the 1 st defendant Club with immediate effect. In the said notice, it is stated that, the managing committee has taken the said decision on the basis of the recommendations made by K.H.Thimmaiah committee report. Plaintiff contends that, the District Registrar in his final report dated:26/08/2008 has opined that, on the basis of observations made in K.H.Thimmaiah Committee Report, there is no necessity to take any action against any of the managing committee members of the 1st defendant for the year 2007-08. The managing committee of the 1st defendant for the year 2008-09 though knew about the observations made by District Registrar in his final report dated:26/08/2008 ignoring the final report has taken a decision to terminate his membership on the basis of K.H.Thimmaiah Committee report which is not in force in view of the final report of District Registrar dated:26/08/2008. 15
OS.25642/2009 Plaintiff contends that, the procedure adopted by the managing committee of the 1st defendant Club for the year 2008-09 in passing resolution to terminate his membership from the 1 st defendant Club is not in accordance with the bylaw of the 1 st defendant Club. The managing committee has no authority to terminate his membership. Therefore the resolution of the managing committee dated:07/02/2009 terminating his (plaintiff) membership from the 1 st defendant Club is dishonest, malafide, bias and violation of fundamental principle of natural justice. Therefore the said resolution is illegal. Plaintiff contends that, due to the said illegal resolution, he has undergone mental agony and sufferings. Therefore defendants 3 to 20 are liable to pay damages to him. Plaintiff contends that, in view of illegal termination of his membership from the 1 st defendant Club, OS.No.7899/2008 & OS.No.8376/2008 filed by him challenging show cause notice and order of suspension become infructuous. Therefore he withdrawn the above said 16 OS.25642/2009 suits. Plaintiff contends that, the cause of action for the suit arose on 20/02/2009 when he got the copy of the notice affixed to the notice board regarding passing of resolution by the managing committee of the 1st defendant Club on 07/02/2009 terminating his membership. He contends that, the resolution of the managing committee dated:07/02/2009 terminating his membership and the resolution to constitute 3 Man Enquiry Committee and all the proceedings of the said 3 Man Enquiry Committee are illegal, null and void, therefore they are to be declared accordingly. Plaintiff contends that, in view of illegal termination of his membership, he was put to mental agony, therefore defendants 3 & 15 are personally liable to pay damages of Rs.15,000/- each, defendants 4 to 14 are jointly and severally liable to pay damages of Rs.50,000/- and defendants 16 to 20 are jointly and severally liable to pay damages of Rs.50,000/-. Plaintiff has sought the relief of injunction restraining 1 st defendant from initiating any further action against him and 17 OS.25642/2009 defendants 2 to 14 from passing any further resolution relating to him, defendants 16 to 20 from holding further enquiry against him and defendant No.15 from interfering with day to day management and administration of the 1 st defendant Club. On these and other grounds stated in the plaint, plaintiff prays to decree the suit and to grant the reliefs prayed for.
3. Defendants 1 to 3 contested the suit by filing written statement. They admit that, 1st defendant is the Registered Members Club, it is governed by rules, regulations & bylaw, defendants 2 to 5 were the President, Vice President, Secretary & Treasurer & defendants 6 to 14 were the committee members of 1 st defendant club for the year 2008-09, defendant No.15 is the Former President and defendant No.16 to 20 are the members and plaintiff was the permanent member and also served as Secretary of 1st defendant Club. They denied that, defendant No.2 was the name sake president for the year 2008-09 and he 18 OS.25642/2009 and other office bearers of 1st defendant Club were beholden to the 15th defendant, defendants 2 to 20 were having grudge and ill-will against the plaintiff and they hatched plan to take revenge against him and to remove him from the membership of 1st defendant Club. Defendants 1 to 3 contend that, when the plaintiff was the Secretary of 1st defendant Club for the year 2006-07 and 2007-08, he mis-managed the affairs of 1 st defendant Club. When the other managing committee members were unable to restrain and refrain the plaintiff from mis- managing the affairs of 1st defendant Club, some of the elected members of the managing committee of 1 st defendant club submitted resignations. Some of the members of the 1 st defendant Club gave complaint dated:10.06.2008 to the Registrar of Societies of Bengaluru Urban District against the managing committee of the year 2007-08. The Registrar of Societies has constituted Sri.K.H.Thimmaiah, the Joint Director of Cooperative Societies as Enquiry Officer to conduct enquiry about the allegations made 19 OS.25642/2009 by the members in the complaint dated:10/06/2008 against Managing Committee of the year 2007-2008. K.H.Thimmaiah after conducting enquiry submitted the report stating that, plaintiff and some of the office bearers and managing committee members have taken wrong decisions in respect of property belongs to the 1st defendant worth of Rs.25 crores and mis-appropriated the funds of 1 st defendant to the tune of Rs.2 crores. Defendants 1 to 3 contend that, after submission of report by Enquiry Officer K.H.Thimmaiah, the District Registrar of Societies directed the 1st defendant to take action against the plaintiff and other inducted office bearers and managing committee members of 1st defendant Club for the year 2007-08. As per the orders of District Registrar, the Managing Committee of the 1st defendant Club for the year 2008-09 in its meeting dated:21/10/2008 has accepted K.H.Thimmaiah's report and unanimously resolved to issue show-cause notice to the plaintiff and other office bearers and Managing Committee members for 20 OS.25642/2009 the year 2007-08 who were inducted by Enquiry Officer K.H.Thimmaiah. As per the said resolution of the Managing Committee, the 3rd defendant as the Secretary of the 1st defendant-club issued show-cause notice dated:22/10/2008 to the plaintiff and others. After receipt of the said show-cause notice, plaintiff filed OS.No.7899/2008 seeking the relief of injunction. In the said suit plaintiff had filed application for temporary injunction. After hearing arguments, the application for temporary injunction was dismissed. Defendants 1 to 3 contend that, plaintiff in addition to filing OS.No.7899/2008 questioning the legality of the show-cause notice dated:22/08/2008 has also given reply dated:16.11.2008. After receipt of reply, the Managing Committee of the 1st defendant Club for the year 2008-09 was of the opinion that, an opportunity of personal hearing is to be given to the plaintiff. Therefore, on 26/11/2008 notice was issued to the plaintiff calling upon him to appear before the Managing Committee. After receipt of notice, plaintiff did not appear 21 OS.25642/2009 before the Managing Committee. Therefore, it was resolved to suspend plaintiff from the 1st defendant Club and same was intimated to him through letter dated:05/01/2008. After receipt of the said letter, plaintiff filed OS.No.8376/2008 questioning the order of suspension. In the said case also, plaintiff filed application seeking Temporary Injunction and the said application was dismissed. Defendants 1 to 3 contend that, the Managing Committee of the 1st defendant club for the year 2008- 09 has constituted 3 Man Enquiry Committee to conduct enquiry about the allegations made against office bearers and Managing Committee members of the year 2007-08. The said 3 Man Committee after conducting enquiry has submitted report inducting plaintiff, some office bearers and Managing Committee members of the year 2007-08. Defendants 1 to 3 contend that, having regard to the material available against the plaintiff and other inducted members, before taking any action against them, the Managing Committee has given sufficient 22 OS.25642/2009 opportunity to them by issuing notices dated:06.01.2009, 14.01.2004 and 23.01.2009 calling upon them to give reply and also to personally appear before the committee. After receipt of the said notices, plaintiff did not appear before the committee. Therefore, after giving sufficient opportunity to the plaintiff to put-forth his case and by following the rules and regulations of the bylaw, the Managing Committee of the 1st defendant Club for the year 2008- 09 has resolved to terminate membership of the plaintiff. Accordingly, termination notice dated:09.02.2008 was issued to plaintiff. Defendant No.1 to 3 contend that, the contention of the plaintiff that said termination notice was not served to him is false. Defendants 1 to 3 contended that, as per bylaw of the 1st defendant club after termination, the plaintiff is having an opportunity to file appeal before the General Body. The plaintiff without exhausting the said remedy has filed the instant suit. Therefore, the instant suit is not maintainable. On these and 23 OS.25642/2009 other grounds stated in the written statement, defendants 1 to 3 pray to dismiss the suit.
4. Hand summons served to defendants 4,6,7,9 to 11, 14 to 16 and 18 to 20. After service of hand-summons, they did not appear before the court in person or through the counsel. Therefore, on 15/09/2009 they were placed exparte. Suit summons served to defendants 8, 12, 13 and 17 by substitute service. After service of summons by substitute service, they did not appear before the court in person or through counsel. Therefore, on 07/07/2010 defendants 8, 12, 13 and 17 were placed exparte.
5. Suit summons not served to defendant No.5. On 7/3/2013 counsel for the plaintiff filed memo to dismiss the suit against defendant No.5 as not pressed. Accordingly the suit against defendant No.5 was dismissed as not pressed. 24
OS.25642/2009
6. On the basis of the above pleadings, on 08/02/2011 the then Presiding Officer framed the following:
ISSUES
1. Whether plaintiff proves that to enquire against him 3 members enquiry committee, finance committee, technical committee were framed by the defendants of the close confident of defendants 2 to 19?
2. Whether plaintiff proves that defendants without following principles of natural justice in collusion malafide intention dishonestly taken action against him?
3. Whether plaintiff proves that the termination of plaintiff as a member of defendant NO.1 is illegal?
4. Whether plaintiff proves that by the act of defendants he has sustained mental agony & entitled for damages of Rs.1,30,000/?
5. Whether suit of the plaintiff is maintainable?25
OS.25642/2009
6. Whether defendants proves that as per the provision of Karnataka Co operative Societies Act & Byelaws they have taken action?
7. Whether defendants prove that suit of the plaintiff is prematured without exhausting remedy available rules and bylaws?
8. Whether plaintiff sis entitled for the relief sought for?
9. What order or decree?
7. On 18/11/2017 the then presiding officer re-casted issue No.1 as under:
Whether the plaintiff proves
that the initiation of the enquiry
proceedings by the Managing
Committee against him is illegal
and ultravirus the rules?
8. In the instant case, only defendant No.1 to 3
contested the suit by filing written statement. But, in the issues burden was placed on all the defendants. Plaintiff claimed 26 OS.25642/2009 damages against the defendants 3 and 15 personally and against defendants 4 to 14 and 16 to 20 jointly and severally. But, an omnibus issue No.4 was framed regarding damages. Regarding contention of the plaintiff that his termination from the 1 st defendant-club is illegal, 2 issues ie., Issue No.2 and 3 were framed. I am of the opinion that one issue is sufficient to deal regarding illegal termination. Plaintiff has sought the relief of declaration to declare that the proceedings conducted by Three Man Enquiry Committee is null and void. There is no issue on this aspect. Therefore, having regard to the above technical and grammatical mistakes and apparent errors in the above issues without replacing the burden of proof, on 25-11-2020 the issues were recasted as under:
ISSUE
1.Whether plaintiff proves that termination of his membership from the 1st defendant is illegal?27
OS.25642/2009
2.Whether plaintiff proves that formation of 3 man enquiry committee by the 1st defendant to conduct enquiry about the various charges of financial and administrative irregularities during the year 200708 is illegal and without jurisdiction?
3.Whether plaintiff proves that all the proceedings of 3 man enquiry committee are null and void?
4.Whether defendants 1 to 3 prove
that they validly terminated the
membership of plaintiff by
following procedure contemplated
in the bylaws of 1st defendant
club?
5.Whether plaintiff proves that due
to (illegal) termination of his
membership from the 1st defendant
club he sustained mental agony?
6.Whether plaintiff proves that
defendants 3 and 15 are personally
28
OS.25642/2009
liable to pay damages of
Rs.15,000/ each to him?
7.Whether plaintiff proves that
defendants 4 to 16 and 16 to 20
are jointly and severally liable
to pay damages of Rs.50,000/ each
to him?
8.Whether defendants 1 to 3 prove
that the instant suit is
premature and it is not
maintainable in view of plaintiff
has not exhausted remedy available
to him as per bylaws of the 1st
defendantclub?
9.Whether plaintiff is entitled for
the reliefs prayed for?
10. What order or decree?
9. After recasting of the issues, when the case was posted for hearing on recasted issues, counsel on both side submitted written synopsis.
29
OS.25642/2009
10. The counsel for defendants 1 to 3 submits that, Issue No.1 & 4 are one and the same, therefore Issue No.4 is to be deleted. He submits that, due to want of pleadings, Issue No.5 is to be deleted.
11. In the instant case, plaintiff by raising so many contentions, contends that, the order of termination of his membership from the 1st defendant Club is illegal. Defendants 1 to 3 contend that, they validly terminated the membership of plaintiff by following the procedure contemplated in the Bylaw of the 1st defendant Club. A perusal of record would show that, in the instant case, Issues were formulated on 08/02/2011. Issue No.2, 3 & 6 were framed regarding termination of plaintiffs membership. After framing of issues, parties went for trial for about 9 years. Defendants 1 to 3 did not raise any objections regarding the issues framed. By noticing some grammatical and technical errors, on 10/12/2020 the Issues were recasted. 30
OS.25642/2009 Defendant No.1 is a Registered Club & defendant No.2 & 3 were the president and Secretary of the said club at the time of filing the instant suit. They contend that, they validly terminated the membership of plaintiff in accordance with bylaws. Therefore when the plaintiff submits that, the termination of his membership from the 1st defendant club is illegal, the burden would lie on defendants 1 to 3 to substantiate their contention, because proving that, the termination is legal is an assertive/positive burden. Whereas proving that, the termination is illegal is virtually a negative burden. When such is the case, the contention of defendants 1 to 3 that, despite they contend that, they validly terminated the membership of plaintiff by following the procedure in accordance with bylaws, burden cannot be placed on them to prove the said contention cannot be accepted. Therefore the contention of defendants 1 to 3 that, Issue No.4 is to be deleted, is not sustainable. For convenience Issue No.4 will be considered along with Issue No.1. 31
OS.25642/2009
12. Issue No.5 was framed having regard to the contention of the plaintiff that, in view of illegal termination of his membership from 1st defendant Club, he sustained mental agony. Therefore the contention of defendants 1 to 3 that, there is no pleading to frame Issue No.5 is not sustainable. But in view of plaintiff not pressed reliefs a to d, Issue No.5 to 7 will be answered as Would Not Survive for Consideration.
13. Plaintiff got examined himself as PW1 and produced documents marked at Ex.P.1 to Ex.P.11. On behalf of defendants 1 to 3, 3rd defendant was examined as DW1 and produced documents at Ex.D.1 & 35.
14. Heard the arguments on both side on merit and also on I.A.No.V. The counsel on both side have filed memo with rulings and synopsis.
32
OS.25642/2009
15. My findings on the above recasted Issues are as under:
ISSUE NO.1: In the Affirmative.
ISSUE NO.2: In the Affirmative.
ISSUE NO.3: In the Affirmative.
ISSUE NO.4: In the Negative.
ISSUE NO.5: Would not survive for consideration. ISSUE NO.6: Would not survive for consideration. ISSUE NO.7: Would not survive for consideration. ISSUE NO.8: In the Negative.
ISSUE NO.9: Partly in Affirmative.
ISSUE NO.10: As per the final order for the following:
REASONS
16. ISSUE NO.1 TO 4 : These 4 issues are interconnected and interlinked with each other. Therefore, they are taken together for discussion to avoid repetition of facts and evidence. 33
OS.25642/2009
17. The learned counsel for the plaintiff has strenuously contended that from the material on record, it is evident that on 10.06.2008 one Mr. Muralidhar, the member of the 1 st defendant- club has given Ex.D26 complaint to the District Registrar of Societies inter-alia alleging the mis-appropriation, mis-use of power, mis-conduct, financial irregularities by the Managing Committee of 1st defendant for the year 2007-08. After receipt of Ex.D 26 complaint, the District Registrar constituted a Committee of Mr. K.H.Thimmaiah to conduct enquiry about the allegations made in Ex.D.26 complaint against the entire managing committee for the year 2007-08. After conducting enquiry, the Enquiry officer namely K.H. Thimmaiah submitted Ex.D.33 report. Ex.D.33 is an interim report. After submission of Ex.D. 33 report, the District Registrar has passed Ex.P.3 order (final report) on 26/08/2008. In Ex.P.3 order/final report the District Registrar has opined that, K.H.Thimmiah, the Enquiry 34 OS.25642/2009 Officer has not conducted the enquiry properly. The opinion expressed by the Enquiry Officer in his report were regarding procedural lapses. There is no evidence for financial mismanagement. Therefore, in Ex.P.3 final report/order the District Registrar of Societies has opined that, there was no necessity to take any disciplinary action against the members of the managing committee of 1st defendant for the year 2007-08. The counsel for plaintiff submits that, though the 1 st defendant club has received Ex.P. 3 final report/order of District Registrar ignoring it defendants 2 to 14 - the Managing committee members of the 1st defendant for the year 2008-09 placing reliance on Ex.D.33 interim report of K.H.Thimmaiah which was set-aside/annulled by District Registrar in Ex.P.3 final report/order with a malafide intention initiated proceedings against the plaintiff and illegally terminated his membership from the 1st defendant-club. He submits that, as per Rule 20-A- 1(aa) of Bylaws of the 1st defendant club, when the allegation is 35 OS.25642/2009 made against more than 3 office bearers or committee members, a general body is to be convened to appoint 3 man enquiry committee to conduct enquiry. From Ex.D.26 complaint it is clear that, the allegation was made against the entire managing committee. Therefore, the general body of the 1 st defendant club is competent to take decision regarding constitution of 3 man committee to conduct an enquiry or to drop the proceedings. The managing committee has no authority to take a decision regarding initiation of disciplinary proceedings when the allegation is against more than 3 office bearers or managing committee members. From the material available on record would show that defendants 2 to 14 without placing Ex.D.33 Interim report of K.H.Thimmaiah or Ex.P.3 final report/order of District Registrar before the general body of the 1 st defendant club, has taken a decision to constitute 3 man enquiry committee to conduct enquiry about the financial and administrative mismanagement by the Managing Committee members of 1 st 36 OS.25642/2009 defendant club for the year 2007-08. He submits that, in view of the Managing committee has no jurisdiction to appoint enquiry committee to conduct enquiry about the allegations made against more than 3 members of managing committee/office bearers without placing it before general body, the constitution of 3 man enquiry committee by defendant 2 to 14 is illegal. The counsel for the plaintiff submits that from the material on record would show that, before the said 3 man enquiry committee submitted the report the managing committee has terminated the membership of plaintiff. He submits that, as per Rule 20A-1(aa) and (b) of Ex.D.1 Bylaw, the managing committee of the 1 st defendant has no authority to terminate the membership of plaintiff. Therefore, the order of termination of membership of the plaintiff from the 1st defendant club and the constitution of 3 man enquiry committee to submit report regarding financial irregularities and mismanagement by the Managing Committee of 1st defendant for the year 2007-08 and all the proceedings of 37 OS.25642/2009 the said 3 man committee are illegal and without jurisdiction. The learned counsel for the plaintiff submits that, the Civil Court is having jurisdiction to decide the legality and authority of managing committee to terminate the membership of plaintiff and constitution of 3 Man Enquiry Committee. In support of his arguments he placed reliance on the following judgments:
1. (1964)1 SCR 1(T.P.DAVER V/s.
LODGE VICTORIA)
2. (1984) 4 SCC 103(J. MOHAPATRA & CO. V/s. STATE OF ORISSA
3. 2009 SCC ONLINE DEL 989(DEEPAK R. MEHTA V/s. NATIONAL SPORTS CLUB OF INDIA)
4. RFA 1778/2012(CHEV K.M.JOSEPH V/s. INDIRANAGAR CLUB)
18. The learned counsel for defendants 1 to 3 has strenuously contended that, there was serious allegations of financial irregularities and mis-appropriation and also misuse of power against the plaintiff and other members of Managing 38 OS.25642/2009 Committee of 1st defendant club for the year 2007-08. Therefore, the District Registrar of Societies appointed Sri.K.H.Thimmaiah to conduct enquiry about the said allegations.
Sri.K.H.Thimmaiah after conducting enquiry has submitted Ex.D.33 report. In Ex.D.33 report, K.H.Thimmaiah has stated that, plaintiff has mis-managed the funds of 1 st defendant- club. After receipt of Ex.D.33 report, the Managing Committee of 1st defendant for the year 2008-09 i.e., defendant No.2 to 14 issued notices to plaintiff and also given him an opportunity of personal hearing. The plaintiff did not personally appear before the Committee. Therefore, placing reliance on observations made by K.H.Thimmaiah in his report about mis-management of funds of 1st defendant-club by the plaintiff, the Managing Committee resolved to terminate his membership. He submits that, at the time of termination of plaintiff's membership, he was not the member of the Managing Committee of the 1 st defendant-club. Therefore, Rule 20-A-1 of bylaw would not 39 OS.25642/2009 apply. The counsel for defendants 1 to 3 submits that, the membership of plaintiff was terminated in accordance with the bylaw of 1st defendant club. He submits that, the 1 st defendant Club has taken action againt the plaintiff as per Ex.D.1 Bylaw. Therefore the Civil Court is not having jurisdiction to decide legality or otherwise of the decision taken by the members of the Managing Committee of the 1st defendant Club. On these and other grounds, the learned Counsel for defendants 1 to 3 pray to answer issue No.1 to 4 against the plaintiff. He placed reliance on the following judgments:
1. 1958 ILR AND 1962 SC NO.363 (APPELLATE CIVIL) T.P.DAVAR V/s.
VICTORIA AND OTHERS.
2. ILR 1995 KAR 1566 SECRETARY, BANGALORE TURF CLUB V/s. PRAKASH SRIVATSAVA.
3. AIR 1969 MADRAS 42 S.KRISHNASWAMY AND OTHERS V/s. SOUTH INDIA FILM CHAMBER OF COMMERCE AND OTHERS.40
OS.25642/2009
4. AIR 1994 KAR 195 SADASHIVANAGAR CLUB, BANGALORE V/s. NATARAJ.
5. AIR 2004 SC 2093 SHIPPING CORPORATION OF INDIA LTD., V/s.
MACHADO BROTEHRS AND OTHERS.
6. I.L.R. 1995 KAR 1584 PARTHASARATHY V/s. SRINIVASA RAO.
7. JUDGMENT IN MFA NO.1034/1996 A.S.RAO V/s. THE INDIRANAGAR CLUB.
8. JUDGMENT & DECREE IN O.S.NO.15731/2004 MRS.CHENNAMMA PRAKASH V/s. INDIRANAGAR CLUB.
9. JUDGMENT DT: 30.05.2005 IN O.S.NO.26312/2009 M. SHANTHA KUMAR V/s. INDIRANAGAR CLUB.
10. JUDGMENT DATED: 25.03.2011 IN O,S.NO.6478/2010 S.C.BURMAN V/s.
INDIRANAGAR CLUB.
11. ORDER ON I.A.NO.1 IN O.S.NO.15927/2006 K.LAKSHMANRAJU V/s. THE INDIRANAGAR CLUB AND ANOTHER.
41
OS.25642/2009
12. ORDER SHEET IN O.S.NO.8382/2010 JOSEPH K.M. V/s. THE INDIRANAGAR CLUB.
13. ORDER ON I.A.NO.1 & 2 IN O.S.NO.2717/2009 CHEV K.M.JOSEPH V/s. SRI.M.NAGENDRA AND THE INDIRANAGAR CLUB.
14. W.P.NO.15069/2015 DR.B.K.RAI V/s. THE BANGALORE CLUB & OTHERS.
15. JUDGMENT IN OS.25234/2012 SRI.K.JAYANNA V/s. M/S BOWRING INSTITUTE AND OTHERS.
16. PRIVY COUNCIL APPEAL NO.96/1946 LENNOX ARTHUR PATRCK O'REILLY AND OTHERS V/s. CYRIL CUTHBERT GITTENS.
17. W.P.NO.(C) NO.3685/2015 AMR DEV PRABHA V/s. THE UNION OF INDIA.
18. CIVIL APPEAL NO.5239/2002 DILIP SINGH V/s. STATE OF U.P & OTHERS.
19. AIR 1996 KAR 306 - SECRETARY BENGALURU TURFS CLUB V/. KISHAN SRIVASTAVA & OTHERS.
42
OS.25642/2009
20. (2011) 6 SC 617 - A.C.MUTHAIAH V/s. BOARD OF CONTROL FOR CRICKET IN INDIA.
21. MFA.No.1208/2010(WC).
22. AIR 1994 SC 853 -
S.P.CHENGALVARAYA NAIDU (DEAD) BY LRS. V/s. JAGANNATH (DEAD) BY LRS.
19. I went through the judgments cited by the learned counsel on both side regarding the jurisdiction of the Civil Court to decide the legality or otherwise of the termination of membership of a member of a Club. The learned counsel for the defendants 1 to 3 cited judgments/orders passed on the applications filed U/O.39 Rule 1 & 2 of CPC and O.7 Rule 11 of CPC. The said judgments and orders are of no assistance for deciding the instant suit on merit. The counsel on both side placed reliance on the judgment of Hon'ble Supreme Court of India in the case of "T.P.DAVER V/s. LODGE VICTORIA (1964) 1 SCR 1". In the above judgment, the Hon'ble 43 OS.25642/2009 Supreme Court of India after considering the arguments advanced by the counsel on both side and placing reliance on the dictum laid down in the earlier judgments, in para No.8 of the judgment has made the following observations:
"8. The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a Civil Court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; It can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra."
20. As per the ratio laid down in the above cited judgment relied upon by the counsel on both side, this Court cannot give finding regarding whether the plaintiff has misappropriated the funds of 1st defendant Club, by misusing his power as Secretary of the 1st defendant Club, taken wrong 44 OS.25642/2009 decisions, committed financial irregularities or otherwise and this Court can also cannot give finding regarding factual correctness or otherwise of the opinions expressed by defendants 2 to 14 regarding misappropriation of funds, misusing of power and financial irregularities by plaintiff and other Managing Committee members of the 1st defendant Club for the year 2007-
08. This court also cannot give finding regarding, whether defendants have ill-will or grudge against plaintiff and also about their bonafidiness or malafidiness in initiating disciplinary proceedings against plaintiff and other members of the managing committee for the year 2007-08. All those contentions would not fall within the scope and ambit of the Civil Court. But as per the ratio laid down in the above cited judgment, the Civil Court is having authority to give finding, whether the defendants 1 to 14 followed the rules of Ex.D.1 Bylaw before terminating the membership of the plaintiff and also to constitute 3 Man Enquiry Committee. Keeping in mind the 45 OS.25642/2009 limited jurisdiction of Civil Court, in the matter of termination of membership of a member of a Club, let us examine the evidence on record to appreciate the contentions raised by the counsel on both side.
21. Having regard to the contentions raised by the learned Counsel on both side, in the instant case, the court has to decide whether the 1st defendant-club terminated the membership of the plaintiff by following procedure contemplated in the byelaws of 1st defendant-club and further whether the managing committee of the 1st defendant was having authority to terminate the membership of plaintiff and to appoint 3 man enquiry committee to conduct enquiry about the allegations made against the plaintiff and other Managing Committee members of 1 st defendant-club for the year 2007-08.
22. The counsel for the plaintiff submits that from the material on record it is evident that for the first time Ex.D.26 46 OS.25642/2009 complaint dated:26/02/2008 was lodged against the entire managing committee members of the 1st defendant club. He submits that, in view of the complaint was lodged against the entire managing committee of 1st defendant club, disciplinary action is to be taken by following procedure contemplated in Rule 20-A-1 of rules of 1st defendant club. On the other hand, the learned Counsel for the defendants 1 to 3 contended that, at the time of termination of plaintiff's membership from the 1 st defendant club he was not the member of the Managing committee. Therefore, disciplinary action was taken as per Rule 20-A of the bylaws. To appreciate the rival contentions, it would be useful to extract Rules 20-A and 20-A-1 of Ex.D. 1, Rules of Indiranagar Club.
20-A: DISPLINARY ACTION A member/associate may be censured or suspended or removed from membership/associateship or disqualify the member from contesting the elections for a period not exceeding five years.
(a) Is found to have conducted himself or behaved, while in the premises of the Club, in a manner adversely 47 OS.25642/2009 affecting the decency, decorum, peace and order or harmony of the Club.
(b) Is found guilty of breach of any rule or regulation of the Club.
(c) Does any act which is injurious to the discipline, reputation or interest of the Club.
(d) Provided when there is allegation of misconduct as referred in Rule 20 A-1(aa) against more than three office bearers/Managing Committee Members, the general body shall be the competent authority to decide the discipline action.
(e) If any Member/Associate/Dependent found to be forging the signature of the other member:
PROVIDED
(i) No member/associate shall be censured or suspended unless allegations against him are brought to his notice in writing and had been given an opportunity to show cause why he shall not be censured or suspended from membership
(ii) Notwithstanding the provisio(i) the Managing Committee may,suspend the membership/ associateship of a Member/associate where such action is prima facie is warranted,after giving an opportunity of personal hearing, pending enquiry.
(iii) During suspension, a member/associate, his spouse and dependents shall not be elegible to use the club even as a guest.
(iv) An order of censure or suspension issued by the Managing Committee shall be final.
(v) No member/associate shall be removed from membership/associateship under this rule unless the conduct, behaviour or offence alleged to against him has been enquired into by a committee appointed by the Managing Committee consisting of more than one person among the voting members of the club, however, at any given point of time, if the enquiry committee has any office bearer/Managing Committee Member;such person shall not participate in the deliberations when action/decision is 48 OS.25642/2009 contemplated in the Managing Committee Meeting. Also, the Managing Committee before handing over to enquiry committee shall frame the charges pertaining to the allegations against the member/associate and fix the time frame for completion of enquiry.
(vi) An order of the Managing Committee removing a member/ associate from membership/ associateship shall be open to review by the ensuing/forthcoming Annual General Body as provided under Rule 30(1).
When a review under this clause is requested by the person concerned within the stipulated period as above the Managing Committee shall place the request on the agenda of the ensuing/forthcoming Annual General Body Meeting and give the person concerned an opportunity to be heard in person by the General Body.
(vii) A member/associate whose membership/associateship was terminated under this Rule shall not be enrolled as member/associate again without the approval of the Annual General Body.
20-A-1: DISPLINARY ACTION
(a) Impeachment proceedings can be initiated against the President for allegations of gross mismanagement, willful abuse of power, misconduct, misappropriation, receiving kickbacks and gross financial irregularity, on a requisition in writing by not less than 10% of members eligible to vote or by 10 of the 13 members of the M.C. In such an event an extra ordinary general body meeting shall be convened after giving 7 days clear notice to all the resident members. This general body shall nominate a chairman for the meeting from among the members present, the quorum for such a meeting will be 10% of the members eligible to vote. If there is no quorum then a fresh meeting be convened under this rule.
(aa) Disciplinary proceedings can be initiated for gross mismanagement, willful abuse of power, misconduct, misappropriation, receiving kickbacks and gross financial irregularity, by any of the Office Bearers/Committee 49 OS.25642/2009 Members or arbitrariness, acting against the Rules of the Club or decisions of Managing Committee not discharging the duties and responsibilities cast on them, causing loss to or injury to the reputation of the club and generally acting against the interest of the club.
The managing Committee shall constitute three member enquiry committee to go into the details of such allegation and submit its report within 30 days in case such allegation do not involve more than three Office Bearers/Committee Members.
In the event of the allegations being made against more than three Office Bearers/Committee Members, the provisions of rule 20(A-1-b) shall apply.
(b) The general body convened under rule above shall appoint an enquiry committee of three members present at the meeting excluding the M.C member/office bearer to enquiry into the allegations and to submit its report within 30 days from the date of such meeting.
(c) On receipt of the report of the enquiry committee, the managing committee shall convene an extra ordinary general body meeting after giving 7 days clear notice to the members eligible to vote. The general body shall nominate a chairman from amongst the members present and decide upon the report submitted by the enquiry committee. However before taking any decision on such report, the general body shall give an opportunity to the President of being heard, if he so desires.
(d) The quorum for such meeting shall be 50. In the event there being no quorum a fresh meeting shall be conveyed under this rule.
(e) In the event of removal of the President under this rule, the Vice-President discharge the functions of the President specified under rule 23 of these rules a new MC is elected.
(UNDERLINING IS MINE) 50 OS.25642/2009
23. A bare reading of Rule 20A-1(aa),(b),(c) and (d), it is clear that when the allegations of gross mis-management, will- full abuse of power, mis-appropriation were made against more than 3 office bearers/committee members of 1 st defendant Club, Rule 20A-1(b) would apply and as per the said rule, general body is to be convened to appoint 3 man enquiry committee to submit report within 30 days and after enquiry committee submitted report, an extra-ordinary general body meeting is to be convened by giving 7 days prior notice to the members eligible to vote and the minimum quorum in the said extra ordinary meeting should be 50% and if there is no quorum, fresh meeting is to be convened and in the said extra ordinary general body meeting, decision regarding disciplinary action is to be taken.
24. Plaintiff who was examined as PW1 in his examination in chief has reiterated and re-affirmed the plaint averments. He stated that, the District Registrar of Societies 51 OS.25642/2009 after receipt of Ex.D.26 complaint given by Muralidhara, the member of the 1st defendant Club against the entire Managing Committee of the year 2007-08 has constituted a committee of Mr.K.H.Thimmaiah to conduct enquiry. Ex.D.33 the report submitted by K.G.Thimmaiah is a fact finding report. He has no authority to give direction to initiate disciplinary action on the basis of his report. PW1 has stated that, on the basis of Ex.D.33 report submitted by K.H.Thimmaiah, if the managing committee of the 1st defendant Club decided to initiate disciplinary action against the members of the managing committee of the year 2007-08, the report is to be placed in General Body Meeting. Without placing the enquiry report in the General Body Meeting, the managing committee has no authority to initiate disciplinary action. He stated that, after receipt of Ex.D.2 show- cause notice dated:22/10/2008, he has given Ex.D.3 Reply stating that, on the basis of Ex.D.33 Report of K.H.Thimmaiah the Managing Committee has no authority to initiate disciplinary 52 OS.25642/2009 action against him and other members of the Managing Committee of the year 2007-08 PW1 has further stated that, in Ex.D.3 Reply, he has also stated about the Ex.P.3 Final report of the District Registrar in which report the District Registrar has opined that, K.H.Thimmaiah has not properly conducted the enquiry and on the basis of findings recorded by him, there is no necessity of initiating disciplinary action. PW1 has stated that, despite defendants 2 to 14 knew about Ex.P.3 Final report of District Registrar, with a malafide intention to take revenge against him, terminated his membership of 1 st defendant Club on the basis of Ex.D.33 Interim Report of K.H.Thimmaiah. He stated that, defendants 2 to 14, the members of Managing Committee of the 1st defendant Club for the year 2008-09 have no authority to appoint 3 Man Enquiry Committee to conduct enquiry about the allegations made against him and other managing committee members of the year 2007-08. PW1 to support his case has produced Ex.P.1 Certified copy of the Report 53 OS.25642/2009 submitted by K.H.Thimmaiah, Ex.P.2 Notice dated:06/08/2008 issued by District Registrar to the Secretary of the 1 st defendant Indiranagar Club, Ex.P.3 Certified copy of the Final Report of District Registrar, Ex.P.4 Letter dated:18/12/2008 by Registrar of Societies addressed to plaintiff, Ex.P.5 Endorsement dated:20/03/2014, Ex.P.7 Copy of letter dated:03/03/2009 issued by 3rd defendant to plaintiff, Ex.P.8 print out of photo of notice dated:09/02/2009 affixed on the notice board of 1 st defendant Club, Ex.P.9 Print out of photo of notice dated:31/10/2008 affixed on the notice board of 1st defendant Club and Ex.P.10 CD pertaining to Ex.P.8 & 9 photos.
25. On behalf of defendants 1 to 3, defendant No.3 M.Nagendra the Secretary of the 1st defendant Club has led evidence and he was examined as DW1. In his examination in chief, has reiterated and re-affirmed the contentions taken in the written statement. He stated that, after receipt of Ex.D.33 Report 54 OS.25642/2009 submitted by K.H.Thimmaiah, the members of the Managing Committee after discussion has resolved to initiate disciplinary action against plaintiff and other members who were found guilty in the report. DW1 has stated that, the managing committee has issued Ex.D.2, 4 to 6 show-cause notices to plaintiff. The plaintiff after receipt of Ex.D.2 Notice, has issued Ex.D.3 Reply. After receipt of Ex.D.3 Reply, notice was issued to plaintiff to personally appear before the Managing Committee to put forth his contention. Despite sufficient opportunity was given, the plaintiff did not appear before the Managing Committee and put forth his contention. Therefore in meeting dated:07/02/2019 the members of the Managing Committee have unanimously resolved to terminate the membership of plaintiff. DW1 has stated that, the membership of the plaintiff was terminated in accordance with law and after giving sufficient opportunity to him to put forth his case. Therefore the contention of the plaintiff that, the Managing Committee with a malafide 55 OS.25642/2009 intention, without following the principles of natural justice dishonestly taken action against him, is false. DW1 in support of his contention has produced Ex.D.1 Bylaws of the Club, Ex.D.2 Show cause notice dated:22/10/2008, Ex.D.3 Reply to Ex.D.2 Show cause notice, Ex.D.4 show-cause notice dated:26/11/2008, Ex.D.5 show-cause notice dated:13/11/2008, Ex.D.6 show-cause notice dated:06/12/2008, Ex.D.10 Copy of disciplinary action dated:03/03/2009, Ex.D.11 Postal receipt, Ex.D.12 Certificate of post, Ex.D.13 Request letter dated:14/06/2009, Ex.D.14 Request withdrawal dated:15/06/2009, Ex.D.15 Copy of charge sheet, Ex.D.16 Copy of FIR appended with complaint, Ex.D.17 Enquiry committee report dated:10/04/2009, Ex.D.18 Enquiry report dated:17/06/2009, Ex.D.19 Annual report and accounts for the year of 2008-09, Ex.D.20 Order of District Registrar dated:14/05/2009, Ex.D.21 Notice dated:29/03/2010 issued by District Registrar appended with copy of order dated:23/12/2009 with report, Ex.D.22 Notice dated:07/07/2018 issued by District 56 OS.25642/2009 Registrar appended with order dated:04/05/2019, Ex.D.23 Certified copy of Order in MFA.1208/2010, Ex.D.24 Certified copy of Order in Crl.P.4169/2016, Ex.D.25 Certified copy of Ordersheet in OS.8376/2008, Ex.D.26 Certified coy of complaint dated:10/06/2008, Ex.D.27 Certified copy of order dated:16/06/2008 passed by District Registrar of Society, Ex.D.28 Register of managing committee meetings and proceedings from September 2008 to June 2009, Ex.D.28(a) & (b) Minutes of meeting dated:21/10/2008 & 13/02/2009.
26. From the facts stated by PW1 & DW1 and from the material available on record, it is crystal clear that, on the basis of Ex.D.26 Complaint dated:10/06/2008 given by Mr.Muralidhara, the member of 1 st defendant Club, the District Registrar has constituted One Man Enquiry Committee of K.H.Thimmaiah to conduct enquiry about the allegations made in the said complaint against the entire managing committee. 57
OS.25642/2009 For convenience, Ex.D.26 complaint on the basis of which complaint, K.H.Thimmaiah committee was constituted and the report submitted by him was the trump card for the Managing Committee to terminate the membership of plaintiff is extracted below.
BENGALURU DATED:.10-06-2008 To:
The District Registrar Bengaluru Urban District Office of the Registrar of Co-operative Societies Ali Askar Road, Bengaluru.
Sir, Sub: Mis-appropriation Mis-use of power, mis- conduct Financial irregularities.
***** We the undersigned the members of Indiranagar club request your good self to lock into the below mentioned irregularities.
1. Building bar in park area and thereby loosing valuable land i.e. Bellivana to the B.D.A. and committing fraud on the Govt. and Members of the club.
2. Giving computers to interested persons without having authority under the bylaw.
3. Service Tax is not remitted to the concerned authorities.
4. Termination of B.N.R. Redddy, un-laqfully inspite of production of all required documents due to political vendetta.58
OS.25642/2009
5. Mis-appropriation of funds i.e. by depositing money/cheques given to the club in accounts of office bearers.
6. Lot of works have been carried without budget approval.
7. Spending of more than 50 lakhs on miscellaneous expenditure.
8. Creating Bogus companies and awarding work to them. Many more misdeeds have been committed by the present Managing Committee members. Kindly order of an enquiry and take necessary action immediately.
Your's faithfully, Members of Indiranagar Club.
27. From the above extracted recitals of Ex.D.26 Complaint it is clear that, the said complaint was not given against any of the members of the Managing Committee. On the other hand, it was given against all the members of the managing committee of the 1st defendant Club for the year 2007-
08. In Ex.D.26 complaint, the complainant has stated about financial irregularities, creation of false documents, misappropriation of money, committing fraud on Government and members of the 1st defendant Club by the members of managing committee. After receipt of Ex.D.26 Complaint, the 59 OS.25642/2009 District Registrar of Societies has passed Ex.D.27 Order and appointed One Man Enquiry Committee of K.H.Thimmaiah to conduct enquiry as per Sec.25(2) of Societies Registration Act and to submit report. Sri.K.H.Thimmaiah, the enquiry officer after conducting enquiry has submitted Ex.D.33 Report dated:01/08/2008 to the Registrar of Societies. As rightly submitted by the learned counsel for plaintiff, Ex.D.33 is a fact finding report. The enquiry officer namely K.H.Thimmaiah has no authority to recommend for initiation of disciplinary action against the members inducted by him in the report. A perusal of Ex.P.3 report would show that, after receipt of Ex.D.33 a fact finding report of K.H.Thimmaiah, the District Registrar of Societies has passed final order. In page No.2, 3 & 4 of the final report, the District Registrar has made the following observations.
"ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರ ವಿರರುದದ್ಧ ಹಹಹೊರಿಸಲಕಾಗಿರರುವ ಆರಹಹೊರೋಪಗಳಳು ಸಕಾಬರೋತಕಾಗಿರರುವುದಕಾಗಿ ವಿಚಕಾರಣಕಾಧಿಕಕಾರಿಗಳಳು 60 OS.25642/2009 ಉಲಹಲರೋಖ(2) ರ ವರದಿರಲಲ ತಿಳಿಸಿರರುತಕಾತ್ತಾರಹ. ವರದಿರಲಲರರುವ ಅಅಂಶಗಳನರುನ್ನು ಹಕಾಗಹೊ ಅಭಿಪಕಾಪ್ರಾರಗಳನರುನ್ನು ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರರು ನರೋಡಿರರುವ ವಿವರಣಹರ ಹಿನಹನ್ನುಲಹರಲಲ ಕರುಕಾಲಅಂಕಷವಕಾಗಿ ಪರಿಶರೋಲಸಿಲಕಾಗಿದಹ. ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರ ವಿರರುದದ್ಧ ಹಹಹೊರಿಸಲಕಾದ ಆಪಕಾದನಹಗಳ ಕರುರಿತರು ವಿಚಕಾರಣಕಾಧಿಕಕಾರಿಗಳಳು ನರೋಡಿರರುವ ಅಭಿಪಕಾಪ್ರಾರಗಳನರುನ್ನು (findings) ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿಗಹ ತಿಳಿಸಲಕಾಗಿ ಉಲಹಲರೋಖ(4)ರಲಲ ತಹಹೊರೋರಿಸಲಕಾದ ದಿದ22-08-2008 ರ ಪತಪ್ರಾದಲಲ ಕಲಬಬ್ಬಿನ ಕಕಾರರ್ಯದ ಶರ್ಯ ರವರರು ಸರುಧಿರೋರರ್ಯ ವಿವರಣಹ ನರೋಡಿರರುತಕಾತ್ತಾ ರಹ . ಉದಕಾಹರಣಹಗಹದ ಕಹಅಂದಪ್ರಾ ಸಕಕಾರ್ಯರಕಹಕ್ಕೆ ನರೋಡಬಹರೋಕಕಾದ ಸಹರೋವಕಾ ಶರುಲಕ್ಕೆಲ್ಕ್ಕ ವನರುನ್ನು ಕಲಬಬ್ಬಿನ ಸದಸಸ್ಯರರುಗಳಿಅಂದ ವಸಹೊಲ ಮಕಾಡರುವ ಮೊದಲರು ಕಲಬಬ್ಬಿನ ಹಣದಿಅಂದ ಅದನರುನ್ನು ಪಕಾವತಿ ಮಕಾಡಿರರುವುದರು ತಪಪ್ಪು ಎಅಂದರು ಆಪಕಾದನಹ ಇದರುದ್ದು ಇದರು ಸಕಾಬರೋತಕಾಗಿದಹ ಎಅಂದರು ವಿಚಕಾರಣಕಾಧಿಕಕಾರಿ ಅಭಿಪಕಾಪ್ರಾರ ಪಟಟ್ಟಿರರುವುದರು ಸರಿರಲಲವಹಅಂದರು ಅನಸರುತತ್ತಾದಹ. ಕಹರೋಅಂದಪ್ರಾ ಸಕಕಾರ್ಯರದ ಒಅಂದರು ಇಲಕಾಖಹಯಅಂದ ಸಹರೋವಕಾ ಶರುಲಕ್ಕೆದ ಪಕಾವತಿ ಆಗವಹರೋಕಹಅಂದರು ಬಹರೋಡಿಕಹ ಬಅಂದಕಾಗ ಅದನರುನ್ನು ನಗಧಿತ ಅವಧಿಯೊಳಗಹ ಪಕಾವತಿ ಮಕಾಡರುವುದರು ಕಲಬಬ್ಬಿ ನ ಕತರ್ಯವಸ್ಯವಕಾರಿರರುತತ್ತಾದಹ . ಆಪಕಾದನಹ 4 ಕಹಕ್ಕೆ ಸಅಂಬಅಂಧಿಸಿದಅಂತಹ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರರು ನರೋಡಿರರುವ ಹಹರೋಳಿಕಹರನರುನ್ನು ಪರಿಶರೋಲಸಲಕಾಗಿ ಅದರು ನರಮಕಾನರುಸಕಾರಿ ಇರರುವುದರಿಅಂದ ಸದರಿ ವಿವರಣಹರನರುನ್ನು ಒಪಪ್ಪುಬಹರೋಕಕಾಗರುತತ್ತಾದಹ. ಆಪದನಹ 2 ರಲಲ ಉಲಹಲರೋಖಿಸಿರರುವ ಒಅಂದರು ಕಅಂಪಸ್ಯ ಟಗಹರ್ಯ ಸಅಂಬಅಂಧಿಸಿದ ವಿಚಕಾರದಲಲ ಸದರಿ ಹಣವನರುನ್ನು ಕಲಬರುಬ್ಬಿ ಈಗಕಾಗಲಹರೋ ಕಟಟ್ಟಿಸಿಕಹಹೊಅಂಡಿರರುತಕಾತ್ತಾರಹ . ಆದಕಕಾರಣ ಈ ವಿಷರವನರುನ್ನು ಕಹೊಡ ಬಹಳ ಸಸ್ವರಹೊಪದ ಉಲಲಅಂರನಹಯಅಂದರು ಗಅಂಭಿರೋರವಕಾಗಿ ಪರಿಗಣಿಸರುವುದರು ಸಹೊಕತ್ತಾವಹಅಂದರು ಕಕಾಣರುವುದಿಲಲ.
ಆಪಕಾದನಹ ಸಅಂಖಹಸ್ಯ-1 ರ ಪಪ್ರಾಕಕಾರ ಬಹಅಂಗಳಳೂರರು ಅಭಿವವೃದಿದ್ಧ ಪಕಾಪ್ರಾಧಿಕಕಾರವು ಕಲಬಬ್ಬಿಗಹ ಮಅಂಜಹೊರರು ಮಕಾಡಿದ ನವಹರೋಶನದ ಒಅಂದರು ಸಣಣ 61 OS.25642/2009 ಭಕಾಗದಲಲ ಬಕಾರನರುನ್ನು(Bar) ನಮಿರ್ಯಸಿರರುವುದರು, ಪಕಾಪ್ರಾಧಿಕಕಾರದ ಹಅಂಚಿಕಹ ನರಮಗಳಿಗಹ ವಿರರುದದ್ಧವಕಾಗಿದಹ ಎನರುನ್ನುವ ವಿಷರವು ಸಸ್ವಲಪ್ಪು ಮಟಟ್ಟಿಗಹ ಗಅಂಭಿರೋರ ಸಸ್ವರಹೊಪದಕಾದ್ದುಗಿದಹ. ಆದಕಾಗಹೊಸ್ಯ ಬಕಾರನರುನ್ನು ನಮಿರ್ಯಸಿರರುವ ಕಪ್ರಾಮವು ಕಲಬಬ್ಬಿನ ಸದಸಟ್ಟಿರರುಗಳ ಅನರುಕಹೊಲಕಕಾಕ್ಕೆಗಿ ಹಕಾಗಹೊ ಅವರ ಹಿತದವೃಷಟ್ಟಿಯಅಂದ ತಹಗಹದರುಕಹಹೊಳಳ್ಳಲಕಾಗಿದಹಯಅಂದಹೊ, ಈ ಹಿನಹನ್ನುಲಹರಲಲ ದನವಹರೋಶನದ ಮಅಂಜಹೊರಕಾತಿ ರದರುದ್ದುಗಹಹೊಳಿಸರುವ ನರಕಾರ್ಯರ ವನರುನ್ನು ಕಹಕೈ ಬಟರುಟ್ಟಿ ನವಹರೋಶನವನರುನ್ನು ಕಲಬಬ್ಬಿಗಹ ಮರಳಿಸಬಹರೋಕಹಅಂದರು ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರವರರು ಬಹಅಂಗಳಳೂರರು ಅಭಿವವೃದಿದ್ದು ಪಕಾಪ್ರಾಧಿಕಕಾರಕಹಕ್ಕೆ ಮನವಿ ಮಕಾಡಿಕಹಹೊಅಂಡರರುವ ವಿಷರವನರುನ್ನು ಕಹೊಡ ಇಲಲ ಗಣನಹಗಹ ತಹಗಹದರುಕಹಹೊಳಳ್ಳಬಹರೋಕಕಾಗರುತತ್ತಾದಹಅಂದರು ಭಕಾವಿಸಲಕಾಗಿದಹ. ಮನವಿರ ಮರೋಲಹ ಬಹಅಂಗಳಳೂರರು ಅಭಿವವೃದಿದ್ದು ಪಕಾಪ್ರಾಧಿಕಕಾರವು ತಹಗಹದರುಕಹಹೊಳಳುಳ್ಳವ ನಲರುವನರುನ್ನು ನಹಹೊರೋಡಿಕಹಹೊಅಂಡರು ಮರುಅಂದರುವರಿರರುವುದರು ಯೊರೋಗಸ್ಯವಹಅಂದರು ಕಕಾಣರುತತ್ತಾದಹ.
ಇನರುನ್ನುಳಿದ ಆಪಕಾದನಹಗಳಳು ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರರು ಸರಿರದ ಕಕಾರರ್ಯವಿರಕಾನ (procedure) ಪಕಾಲಸಿಲಲ ಎಅಂಬರುದಕಹಕ್ಕೆ ಸಅಂಬಅಂದಪಟಟ್ಟಿದಕಾದ್ದುಗಿರರುತತ್ತಾದಹ. ಈ ಹಿನಹನ್ನುಲಹರಲಲ ಆಪಕಾದನಹಗಳ ಬಗಹಗ್ಗೆ ಸಮಗಪ್ರಾ ದವೃಷಟ್ಟಿ ಯಅಂದ ಅವಲಹಹೊರೋಕಿಸಿದಕಾಗ ಕಲಬಬ್ಬಿನ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರರು ನಡಹದರುಕಹಹೊಅಂಡ ರಿರೋತಿನರೋತಿಗಳಳು ಕಹಲವು ಕಡಹಗಳಲಲ ನರಮಗಳ ಪಕಾಲನಹ ದವೃಷಟ್ಟಿಯಅಂದ ದಹಹೊರೋಷ ಪರಿತವಕಾಗಿದದ್ದುರಹೊ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರನರುನ್ನು ರದರುದ್ದುಗಹಹೊಳಿಸರುವ (supercession) ದಅಂಡನಹ ವಿಧಿಸರುವುದಷರುಟ್ಟಿ ಗಅಂಭಿರೋರ ಸಸ್ವರಹೊಪದ ಉಲಲಅಂರನಹಗಳಲಲವಹಅಂದರು ಅನಸರುತತ್ತಾದಹ.
ಆದಕಾಗಹೊಸ್ಯ ಇಅಂದಿರಕಾನಗರ ಕಲಬಬ್ಬಿನ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರ ಕಕಾರರ್ಯವಧಿರ ಜಹೊನ್ 2008 ರ ಅಅಂತಸ್ಯಕಹಕ್ಕೆ ಮರುಗಿದಿರರುವುದರಿಅಂದ ಹಕಾಗಹೊ ಕಲಬಬ್ಬಿನ ವಿಶಹರೋಷ ಮಹಕಾಸಭಹರರು ಬಹಕೈಲಕಾ ತಿದರುದ್ದುಪಡಿ ಮಕಾಡಲರು ಅವಕಕಾಶ ನರೋಡದಹರೋ ಇರರುವುದರಿಅಂದ ಕಲಬಬ್ಬಿನ ವಸ್ಯವಹಕಾರಗಳನರುನ್ನು 62 OS.25642/2009 ಸರುಸಹೊತಪ್ರಾವಕಾಗಿ ನಹಹೊರೋಡಿಕಹಹೊಅಂಡರು ಹಹಹೊರೋಗರುವಲಲ ಒಅಂದರು ರಿರೋತಿರ ಗಹಹೊಅಂದಲದ ವಕಾತಕಾವರಣ ಉಅಂಟಕಾಗಿರರುತತ್ತಾದಹ. ಇಅಂದಿರಕಾನಗರ ಕಲಬಬ್ಬಿನ ಬಹಕೈಲಕಾಗಳನರುನ್ನು ಉಚಚ್ಚ ನಕಾಸ್ಯಯಕಾಲರದ ನದಹರೋರ್ಯಶನದ ಅನರುಸಕಾರ ತಿದರುದ್ದುಪಡಿ ಮಕಾಡದಹ ಚರುನಕಾವಣಹ ನಡಹಸಿದಲಲ ನಕಾಸ್ಯಯಕಾಲರದ ನಅಂದನಹಯಕಾಗರುವ ಸಕಾಧಸ್ಯತಹ ಇದಹ. ಆದ ಕಕಾರಣ ಇಅಂದಿರಕಾನಗರ ಕಲಬಬ್ಬಿನ ಮಹಕಾಸಭಹರಲಲ ನಣರ್ಯಯಸಿರರುವ ಪಪ್ರಾಕಕಾರ ಏಕಸದಸಸ್ಯ ನಕಾಸ್ಯಯಕಾಧಿರೋಶ ಪರೋಠವು ನರೋಡಿರರುವ ಆದಹರೋಶದವಿರರುದದ್ಧ ವಿಭಕಾಗಿರೋರ ಪರೋಠದ ಮರುಅಂದಹ ಹಹಹೊರೋಗಿರರುವ/ಹಹಹೊರೋಗಲರರುವ ಮರೋಲಲ್ಮನವಿರಲಲ ನಕಾಸ್ಯಯಕಾಲರವು ಆದಹರೋಶವನರುನ್ನು ನರೋಡರುವವರಹಗಹ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿಗಹ ಚರುನಕಾವಣಹರನರುನ್ನು ನಡಹಸದಹರೋ ಇರರುವುದರು ಹಹಚರುಚ್ಚ ಸಹೊಕತ್ತಾವಕಾಗಿರರುತತ್ತಾದಹ . ಈ ಮಧಸ್ಯಅಂತರ ಅವಧಿರಲಲ ಇಅಂದಿನ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರರು ಅಧಿಕಕಾರ ಅವಧಿರನರುನ್ನು ಅನಧಿರ್ಯಷಟ್ಟಿ ಕಕಾಲ ಮರುಅಂದರುವರಹಸರುವುದರಿಅಂದ ಟರೋಕಹಗಳಿಗಹ ಆಸಪ್ಪುದ ನರೋಡಿದಅಂತಕಾಗರುತತ್ತಾದಹ. ಆದಕಕಾರಣ ಸಮಿತಿರ ಅಧಿಕಕಾರಕಾವಧಿರನರುನ್ನು ಮರುಅಂದರುವರಹಸರುವುದರು ಯೊರೋಗಸ್ಯವಲಲವಹಅಂದರು ಅಭಿಪಕಾಪ್ರಾಯಸಿದಹ.
ಮರೋಲಹ ವಿವರಿಸಲಕಾದ ಹಿನಹನ್ನುಲಹರಲಲ ಹಕಾಲ ಇರರುವ ಕಕಾರರ್ಯಕಕಾರಿ ಸಮಿತಿರರು ಅವಧಿ ಮರುಗಿದಿದಹ ಎಅಂದರು ಘಹಹೊರೋಷಸಿ, ಹಕಾಗಹೊ ಸದರಿ ನರಕಾರ್ಯರದಿಅಂದ ಉದದ್ಭವಿಸರುವ ತಹರವಕಾಗರುವ ಸಕಾಸ್ಥಾನದಲಲ ಸಹೊಕತ್ತಾ ಆಡಳಿತಕಾಧಿಕಕಾರಿಯಕಾಬಬ್ಬಿರನರುನ್ನು ಮರುಅಂದಿನ ಆದಹರೋಶದವರಹಗಹ ನಹರೋಮಿಸರುವುದರು ಉಚಿತವಹಅಂದರು ಅಭಿಪಕಾಪ್ರಾರ ಪಡಲಕಾಗಿದಹ.
ವಿಚಕಾರಣಕಾ ವರದಿರನರುನ್ನು ಮತರುತ್ತಾ ಸಅಂಬಅಂಧಪಟಟ್ಟಿ ಅಡಕಗಳನರುನ್ನು ಮತರುತ್ತಾ ಕಲ ಬ್ ನ ಗಗೌರವ ಕಕಾರರ್ಯದಶರ್ಯರವರರು ನರೋಡಿರರುವ ದಿನಕಾಅಂಕದ 20-8-2008 ಮತರುತ್ತಾ 22-8-2008 ರ ಪತಪ್ರಾಗಳ ಪಪ್ರಾತಿಗಳನರುನ್ನು ಈ ಪತಪ್ರಾದಹಹೊಅಂದಿಗಹ ಲಗತಿತ್ತಾಸಿ ಗಗೌರವ ಪವರ್ಯಕವಕಾಗಿ ಸಲಲಸಲಕಾಗಿದಹ." 63
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28. From the above extracted observations made the District Registrar of Societies, it is clear that, on going through the fact finding report of K.H.Thimmaiah, the District Registrar of Societies has opined that, the findings given by the enquiry officer are more in the nature of procedural aspects and there is no clear finding regarding monetary loss to the 1 st defendant Club. Therefore there is no necessity to impose punishment or to dissolve the managing committee. In view of the above findings of District Registrar of societies in Ex.P.3 Report, the findings recorded by Sri.K.H.Thimmaiah in Ex.D.33 report would not remain in force and the said report would loses its independent status and significance. Therefore Ex.D.33 report cannot be taken in isolation without considering Ex.P.3 Final report.
29. From the material on record would show that, the tenure of the managing committee of the 1st defendant Club for the year 2007-08 would come to an end on 30/09/2008. The newly 64 OS.25642/2009 elected managing committee of the 1st defendant Club for the year 2008-09, consisting of defendants 2 to 4 convened 5 th managing committee meeting on 21/10/2008. Defendants 1 to 3 have produced the minutes of 5th managing committee meeting and it is marked at Ex.D.28(a). A perusal of Ex.D.2 show-cause notice would show that, it was issued on the basis of the resolution passed by the members of the managing committee in the 5th managing committee meeting dated:21/10/2008. After receipt of Ex.D.2 show-cause notice, plaintiff has given Ex.D.3 Reply on 06/11/2008. In Ex.D.3 Reply, the plaintiff has stated about Ex.P.3 Final report of the District Registrar of Societies. In Ex.D.3 Reply, plaintiff has clearly stated that, in view of District Registrar of Societies has not accepted the findings recorded by K.H.Thimmaiah in Ex.D.33 Report, on the basis of the said report, proceedings cannot be initiated against him. Therefore the plaintiff requested to drop the proceedings. 65
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30. Admittedly, after the receipt of Ex.D.2 show-cause notice, plaintiff has filed OS.NO.7899/2008. Ex.D.7 is the order dated:05/12/2008 dismissing the application filed by plaintiff in OS.7899/2000 seeking temporary injunction. A perusal of Ex.D.7 order would show that, plaintiff placing reliance on Ex.P.3 final report of the District Registrar of Societies, has contended that, having regard to the observations made in Ex.P.3 Final report, the 1st defendant Club cannot initiate proceedings against him on the basis of Ex.D.33 interim report of K.H.Thimmaiah. Plaintiff sought the relief of temporary injunction restraining defendants 1 to 14 from conducting proceedings against him solely on the basis of Ex.D.2 show-cause notice. The said application of the plaintiff was dismissed. Be that as it may, from the observations made in Ex.D.7 Order it is clear that, plaintiff has produced Ex.P.3 Final report of District Registrar of Societies in OS.No.7899/2008 and the members of the managing committee knew about the said report. When such is the case, the statement 66 OS.25642/2009 of DW1 that, he do not know about Ex.P.3 Report, before termination of membership of plaintiff on the basis of Ex.D.33 report per se appears to be not true.
31. On evaluation of oral and documentary evidence on record, it is crystal clear that, Sri.K.H.Thimmaiah has submitted Ex.D.33 report by conducting enquiry on allegations made by complainant Muralidhara against all the members of managing committee of the 1st defendant Club for the year 2007-08. when such is the case, as rightly submitted by the learned counsel for the plaintiff, if the managing committee of the 1 st defendant Club for the year 2008-09 consisting of defendants 2 to 14 resolved to take disciplinary action against the members of the managing committee of the 1st defendant Club for the year 2007- 08, as per Rule 20-A-1 (aa), the report is to be placed in the General Body Meeting. DW1 in his evidence has admitted that, before termination of membership of plaintiff from the 1 st 67 OS.25642/2009 defendant Club, Ex.D.33 report was not placed in the General Body Meeting. Thus, from the very admission of DW1 & from the documentary evidence produced by defendants 1 to 3, it is clear that, the procedure contemplated in Rule 20-1-A of the bylaw is not followed by defendants 1 to 14 to initiate disciplinary proceedings against the members of managing committee of the 1st defendant Club for the year 2007-08.
32. DW1 in his evidence has stated that, Rule 20-1-A would apply if the disciplinary proceedings is initiated against the sitting members of the managing committee. He stated that, at the time of initiation of disciplinary proceedings against plaintiff and other members of the managing committee of the 1st defendant Club for the year 2007-08, the managing committee of the year 2008-09 was in force. None of the members of the managing committee of 2007-08 were re-elected as members of 68 OS.25642/2009 managing committee of 2008-09. Therefore, rule 20-1-A of Ex.D.1 Bylaw of 1st defendant Club would not apply.
33. A perusal of Ex.D.1 Rules of the 1 st defendant Club would show that, Rule 20-A & 20-A-1 deals regarding Disciplinary Action. Except the above rules, there is no any other rule regarding disciplinary action. In Rule 20-A-1, differentiate was not made regarding initiation of disciplinary action against sitting managing committee members and the previous managing committee members. Therefore the contention of defendants 1 to 3 that, at the time of initiation of disciplinary action against plaintiff and other members of the managing committee of the 1st defendant Club for the year 2007-08 on the basis of Ex.D.33 report, plaintiff & other members of the managing committee inducted in the said report were not re-elected for the managing committee of the year 2008-09, hence Rule 20-A-1 of Ex.D.1 Bylaws would not apply, does not hold water. In view of my 69 OS.25642/2009 afore said findings, I hold that, having regard to the allegations made in Ex.D.26 complaint and the observations made by Sri.K.H.Thimmaiah in Ex.D.33 report, it is crystal clear that, in Ex.D.26 complaint, allegation was made against all the sitting members of the managing committee of the 1 st defendant Club for the year 2007-08 and Ex.D.33 report and Ex.P.3 Final report were submitted, when the said committee was in force. Therefore, if the managing committee of the year 2008-09 resolved to initiate disciplinary action against more than3 members of the managing committee of the year 2007-08, they have to follow the procedure contemplated in Rule 20-A-1 of Ex.D.1 Bylaws. Admittedly, in the instant case, defendants 1 to 14 have not followed the procedure contemplated in Rule 20-A-1 of Ex.D.1 Bylaws to terminate the membership of the plaintiff from the 1 st defendant Club. Therefore, without any difficulty it can be said that, defendants 1 to 14 illegally terminated the membership of 70 OS.25642/2009 the plaintiff from 1st defendant Club in contravention of Rules of Ex.D.1 Bylaws of the Club.
34. Defendants 1 to 3 contend that, the membership of the plaintiff was terminated as per Rule 20-A of Indiranagar Club. As per Rule 20-A(v), before terminating the membership of a member, the committee is to be appointed by the managing committee consisting of more than one person among the voting members of the Club. A perusal of Ex.D.28 (a) Resolution would show that, on 21/10/2008 the managing committee has constituted a 3 Man Enqiury Committee to conduct enquiry regarding financial and other irregularities including misappropriation of funds, administrative major and minor work irregularities. A perusal of Ex.D.17 Report of 3 Man Enquiry Committee would show that, it was submitted on 10/04/2009. The membership of the plaintiff was terminated on 07/02/2009 i.e., before the submission of Ex.D.17 report by 3 Man 71 OS.25642/2009 Enquiry Committee. DW1 in the cross examination has admitted that, the membership of the plaintiff was terminated on the basis of Ex.P.33 report of K.H.Thimmaiah. The report of K.H.Thimmaiah a one Man Enquiry committee constituted by Registrar of Societies, cannot be equated with a committee consisting of more than one member having voting power to be constituted as per Rule 20-A(v) of Rules of Indiranagar Club. Therefore from the material available on record would show that, before terminating the membership of the plaintiff, the procedure contemplated in Rule 20-A(v) is not followed. When such is the case, even if the contention of defendants 1 to 3 that, at the time of termination of the plaintiff's membership, he was not the member of the Managing Committee, therefore Rule 20- A-1 would not apply and Rule 20-A would apply is accepted for a while, in view of my afore said findings, I hold that, defendants 1 to 3 failed to prove that, they terminated the membership of the 72 OS.25642/2009 plaintiff by following the procedure contemplated in Rule 20-A of Ex.D.1 Bylaws.
35. Defendants 1 to 3 contend that, before termination of plaintiff's membership of the first defendant club the managing committee has issued Ex.D2, D4, D5 and D6 notices to plaintiff and called upon him to submit his explanation and also to personally appear before the committee and put forth his contention. Therefore the contention of the plaintiff that, his membership from the first defendant club was terminated without giving audience to him therefore the termination is against to the principle of natural justice is not sustainable.
36. In the instant case, there is no dispute that, before termination of plaintiff's membership from the first defendant club the managing committee has issued notices to him. After receipt of Ex.D.2 notice dated:22/10/2008. Plaintiff has given Ex.D.3 reply dated:06/11/2008. In the reply he has stated that, 73 OS.25642/2009 managing committee has no authority to initiate disciplinary action against him and other members of the managing committee for the year 2007-08, if the managing committee of the first defendant club for the year 2008-09 wants to initiate disciplinary action against the members of managing committee of the year 2007-08 the report is to be placed in the general body meeting. Defendants 1 to 3 did not give clarification or reply to plaintiff in that regard in subsequent notices i.e., Ex.D4, 5 and 6. Therefore from the material available on record to show that the managing committee of 1st defendant for the year 2008-09 without taking into consideration the points urge by the plaintiff in Ex.D3 reply and the rules of Ex.D.1 Bylaws, proceeded to take disciplinary action against plaintiff and other members of the managing committee of the 1st defendant club for the year 2007-
08. Therefore issuance of several notices by the managing committee having no authority to initiate disciplinary action against more than 3 members of the managing committee of the 74 OS.25642/2009 year 2007-08 and without constituting enquiry committee as contemplated either under 20-A(v) or under rule 20-A-(1)(b) of Ex.D1 rules of 1st defendant club would not amount to following the principle of natural justice.
37. The learned counsel for the defendants 1 to 3 contend that, the district registrar of societies issued Ex.D.34 Letter to the 1st defendant with a direction to take steps as per Ex.D.33 Report of K.H.Thimmaiah. After receipt of Ex.D.34 Letter, the Managing Committee has initiated proceedings to take necessary action against plaintiff and other members of the managing committee of 1st defendant Club for the year 2007-08 who were inducted in Ex.D.33 Report. Therefore the managing committee has terminated the membership of plaintiff in accordance with law.
38. Ex.D.34 Letter reads thus:
ಮಕಾನಸ್ಯರಹರೋ, 75 OS.25642/2009 ವಿಷರದ ಇಅಂದಿರಕಾನಗರ ಕಲಬ್ ಇದರಲಲ ನಡಹದಿರರುವ ಅವಸ್ಯವಹಕಾರದ ಬಗಹಗ್ಗೆ ಕನಕಾರ್ಯಟಕ ಸಅಂರಗಳ ನಹಹೊರೋಅಂದಣಿ ಕಕಾಯದ್ದು 1960 ರಡಿರಲಲ ಆದಹರೋಶಸಿರರುವ ವಿಚಕಾರಣಹ ಬಗಹಗ್ಗೆ.
ಉಲಹಲರೋಖದ ಸಅಂರದ ಗಗೌರವ ಕಕಾರರ್ಯದಶರ್ಯ ರವರ ದಿನಕಾಅಂಕ 14-10-2008 ರ ಮನವಿ ಪತಪ್ರಾ.
********* ಮರೋಲಕ್ಕೆಅಂಡ ವಿಷರಕಹಕ್ಕೆ ಸಅಂಬಅಂಧಿಸಿದಅಂತಹ ಇಅಂದಿರಕಾನಗರ ಕಲಬ್ ಬಹಅಂಗಳಳೂರರು ಇದರಲಲ ನಡಹದ ಅವಸ್ಯವಹಕಾರಗಳ ಬಗಹಗ್ಗೆ ಕನಕಾರ್ಯಟಕ ಸಅಂರಗಳ ನಹಹೊರೋಅಂದಣಿ ಕಕಾಯದ್ದು 1960 ಕಲಅಂ 25 ರ ಪಪ್ರಾಕಕಾರ ವಿಚಕಾರಣಹರನರುನ್ನು ನಡಹಸಲರು ಆದಹರೋಶಸಿದರುದ್ದು, ವಿಚಕಾರಣಕಾ ವರದಿರ ಪಪ್ರಾತಿರನರುನ್ನು ಸಲಲಸಲರು ಕಹಹೊರೋರಿರರುತಿತ್ತಾರೋರಿ.
ವಿಚಕಾರಣಕಾ ವರದಿರ ಪಪ್ರಾತಿರನರುನ್ನು ಮರುಅಂದಿನ ಕಪ್ರಾಮಕಕಾಕ್ಕೆಗಿ ಕಳಳುಹಿಸಲಕಾಗಿದಹ.
ತಮಲ್ಮ ವಿಶಕಾಸ್ವಸಿ, ಸಅಂರಗಳ ಜಿಲಕಾಲ ನಹಹೊರೋಅಂದಣಕಾಧಿಕಕಾರಿಗಳಳು ಬಹಅಂಗಳಳೂರರು ನಗರ ಜಿಲಹಲ ಬಹಅಂಗಳಳೂರರು.
39. A bear reading of the above letter it is clear that, as per the request of Managing committee of the 1 st defendant Club for the year 2008-09, the District Registrar of Societies furnished the copy of Ex.D.33 Report of K.H.Thimmaiah to take necessary 76 OS.25642/2009 steps. In Ex.D.34 Letter, the District Registrar has not directed the managing committee to initiate disciplinary action against the Managing committee members of the year 2007-08. Ex.P.4 is the Letter dated:18/12/2008 issued by District Registrar of Societies. In Ex.P.4 Letter it is stated that, the District Registrar has not directed the managing committee of 1 st defendant club for the year 2008-09 to initiate disciplinary proceedings against the members of the managing committee of the 1 st defendant club for the year 2007-08 on the basis of Ex.D.33 Enquiry Report. In Ex.P.5 Endorsement dated:20/03/2014, the District Registrar has stated that, after addressing Ex.P.4 Letter to plaintiff, the District Registrar has not given any direction or clarification to the managing committee of the 1st defendant club regarding taking steps against the members of the managing committee of the year 2007-08 who were inducted in Ex.D.33 Report. Thus from the material on record would show that, there is no direction from the competent authority to initiate disciplinary action 77 OS.25642/2009 against plaintiff and other members of the managing committee of the year 2007-08 on the basis of Ex.D.33 Report. In addition to the above, Ex.D.1 the Bylaws of the 1 st defendant Club will not permit the managing committee to initiate disciplinary proceedings on the basis of enquiry report of a person who is not a member of 1st defendant Club. As per Rule 20-A-(v) before terminating the membership of a member of 1st defendant Club, committee of more than one member having voting power is to be constituted and as per Rule 20-A-1 to initiate disciplinary proceedings against more than 3 members of the Managing committee or office bearers of 1st defendant Club, a 3 Man committee is to be constituted to conduct enquiry about the allegations made against the member or more than 3 members of the managing committee as the case may be. After the committee submitted report, the managing committee or in the General Body Meeting, has to take a decision regarding, what action is to be taken. Therefore Ex.D.1 Bylaw will not permit the managing 78 OS.25642/2009 committee to initiate disciplinary proceedings on the basis of report of a 3rd person who is not a member of the 1 st defendant Club having voting power. Therefore the contention of the defendants 1 to 3 that, as per the direction given by the District Registrar of societies in Ex.D.34 Letter, disciplinary proceedings was validly initiated and by giving sufficient opportunity to the plaintiff by issuing notices, his membership was terminated in accordance with law, does not hold water.
40. Defendants 1 to 3 have produced Ex.D.16 FIR and Ex.D.15 charge sheet. A perusal of the same would show that, FIR was registered on 21/12/2012 & the charge sheet was levied on 15/01/2016. Admittedly the criminal case is still pending for consideration. The above criminal case was registered after the termination of membership of plaintiff from the 1 st defendant Club. Therefore Ex.D.15 & 16 would not help the defendants 1 to 3 to substantiate their contention that, plaintiff is guilty of 79 OS.25642/2009 misappropriation, therefore his membership was validly terminated as per Rule 20-A or 20-A-1 of the Ex.D.1 Bylaws.
41. Ex.D.17 is the 3 Man Enquiry Committee report. DW1 in the cross examination at page No.25 & 26 has stated that, for the constitution of 3 Man Enquiry Committee, resolution was not passed in the General Body Meeting. DW1 voluntarily stated that, for the constitution of Enquiry committee, there is no necessity to pass resolution in General Body Meeting and the members of the managing committee are having power to constitute such a committee. From the facts stated by DW1 and from Ex.D.28(a) Resolution it is clear that, the managing committee in its meeting dated:21/10/2008 has resolved to constitute a 3 Man Enquiry Committee. In Ex.D.28(a) Resolution it is stated that, the manging committee has constituted the 3 Man Enquiry Committee on the basis of the proceedings of the Annual General Meeting dated:28/09/2008. Defendants have not 80 OS.25642/2009 produced the proceedings of Annual General Body Meeting dated:28/09/2008. From the statement of DW1 & from the language of a resolution dated:21/10/2008 it is clear that, in the General Body Meeting dated:28/09/2008, it was not resolved to constitute a 3 Man Enquiry Committee to conduct enquiry about the allegations of various financial irregularities including misappropriation of funds by the members of the managing committee of the year 2007-08. In the foregoing paras, I have opined that, to initiate a disciplinary action against more than 3 members of a managing committee on the count of financial irregularities and misappropriation, as per Rule 20-A-1(b) of Ex.D.1 Bylaws, a decision is to be taken in the General Body Meeting. Admittedly, decision was not taken in the General Body Meeting dated:28/09/2008 either regarding constitution of enquiry committee or for initiation of disciplinary proceedings on the basis of Ex.D.33 Report. A perusal of Ex.D.17 Three Man Enquiry Report would show that, it is in respect of financial 81 OS.25642/2009 irregularities including mis-appropriation by the members of managing committee of the year 2007-08. Therefore, as rightly submitted by the learned counsel for the plaintiff, as per Rule 20-A-1 (b) of Ex.D.1 Bylaw, the managing committee has no authority to appoint 3 Man Enquiry committee to conduct enquiry about the financial irregularities, misappropriation and misuse of powers by more than 3 members of the Managing Committee or office bearers of the 1 st defendant Club. Therefore the constitution of the 3 Man Enquiry Committee by the Managing Committee of 1st defendant Club by passing Ex.D.28(a) resolution without the approval of General Body is illegal and without jurisdiction. Therefore, all the proceedings of the said managing committee including Ex.D.17 Report are illegal. In view of my aforesaid findings, I answer Issue No.1 to 3 in the AFFIRMATIVE & Issue No.4 in the NEGATIVE. 82
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42. ISSUE NO.5 TO 7: On 14/07/2020 plaintiff filed memo stating that, he is not pressing reliefs a to d i.e., in respect of damages. As per the said memo, Issues 5 to 7 would not survive for consideration. Therefore, issues No.5 to 7 is answered as WOULD NOT SURVIVE FOR CONSIDERATION.
43. ISSUE NO.8: Defendants 1 to 3 contend that, as per Rule 30(1) of Ex.D.1 Bylaw, after termination of the membership from the 1st defendant Club, plaintiff is having an efficacious remedy of filing Review before the General Body. Plaintiff has not exhausted the said remedy. Therefore the instant suit is premature.
44. Plaintiff has produced Ex.P.11 Letter dated:24/06/2011 issued by 3rd defendant, the Secretary of 1st defendant Club. In Ex.P.11 Letter it is stated that, plaintiff had given requisition on 09/06/2011 to review the decision of termination of his membership and the same was not taken into consideration in 83 OS.25642/2009 the Annual General Body Meeting of 2011 because, the meeting agenda for the said meeting was circulated to the members on 02/06/2011. Further in the said letter it is stated that, in view of the instant suit filed by plaintiff questioning the termination of his membership is pending, his application for review cannot be considered.
\
45. The learned counsel for the plaintiff placed reliance on the judgment of Hon'ble High Court of Karnataka in "RFA.1778/2012 CHEV K.M.JOSEPH V/s.
INDIRANAGAR CLUB". In the said case, a member of 1 st defendant Club has filed the suit questioning the legality of the order of termination of his membership. The 1 st defendant Club inter-alia raised a contention that, the plaintiff is having a remedy under Rule 30(1) to request the General Body Committee to review the order of termination of membership, therefore the suit is not maintainable, hence the plaint is to be rejected. The 84 OS.25642/2009 Hon'ble High Court of Karnataka taken into consideration the judgment in the case of "T.P.DAVER" has held that, in Ex.D.1 Bylaw, there is no specific provision for appeal or revision, it only provides review, which is having limited scope. Therefore the said limited powers of review by the General Body would not take away the powers of the Civil Court to try the case of Civil nature as per Sec.9 of CPC. In view of the above judgment of Hon'ble High Court of Karnataka, the contention of the defendants 1 to 3 that, the instant suit by plaintiff without exhausting the remedy of review available to him under Rule 30(1) of Ex.D.1 Bylaws is premature and hence it is not maintainable, is not sustainable.
46. The learned counsel for defendants 1 to 3 has strenuously contended that, before filing of the instant suit plaintiff has filed OS.No.7899/2008 challenging the legality of Ex.D.2 show-cause notice dated:22/10/2008 issued to him and OS.No.8376/2008 challenging the order of suspension. During the 85 OS.25642/2009 pendency of the said suits, plaintiff has filed the instant suit, therefore the instant suit is barred U/O.2 Rule 2 of CPC.
47. The learned counsel for the plaintiff has strenuously contended that, the cause of action referred to in the above said suits and the cause of action to file the instant suit are different. The above 2 suits were filed before the termination of plaintiff's membership from the 1st defendant Club. After termination of plaintiff from the 1st defendant Club, the cause of action for the above said suits would not survive, therefore the plaintiff filed memos to withdraw the said suits and filed the instant suit. Therefore the contention of defendants 1to 3 that, the suit is barred U/O.2 Rule 2 of CPC is not sustainable. In addition to that, the learned counsel for the plaintiff contends that, defendants 1 to 3 in their written statement have not raised the said contention. In view of defendants 1 to 3 have not raised the said contention, issue was not framed regarding 86 OS.25642/2009 maintainability of suit U/O.2 Rule 2 of CPC. Therefore the contention of defendants 1 to 3 for the 1 st time, at the time of arguments on merit that, the suit is barred U/O.2 Rule 2 of CPC, is not sustainable. In support of his arguments, he placed reliance on the following judgments:
1. (2010) 10 SCC 141 ALKA GUPTA V/s.
NARENDER KUMAR GUPTA.
In the said judgment, The Hon'ble Supreme Court of India has held as under:
"A. Civil Procedure Code, 1908 - Or. 2 R. 2, S. 11 and Or.6 R.2 - Dismissal of suit as barred under Or.2 R. 2 - Condition precedent for - Unless plea of such bar is raised by defendant and issue is framed thereon, held, court cannot dismiss suit as so barred."
2. (1980) 1 SCC 290 - KEWAL SINGH V/S. LAJWANTI.
In the said judgment, The Hon'ble Supreme Court of India has held as under:
"(1) Order 2, Rule 2, CPC applies to cases where plaintiff omits to sue on a portion of the cause of action on which the suit is based either by relinquishing the cause of action or omitting a part of it. The provision has no application to cases where the plaintiff bases hit suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In 87 OS.25642/2009 such cases, it is always open to the plaintiff to file a fresh suit on the basis of distinct cause of action which he may have relinquished."
3. (1997) 1 SCC 99 M/S BENGAL WATERPROOF LIMITED V/S. M/S.BOMBAY WATERPROOF MANUFACTURINGCOMPANY & ANOTHER.
In the said judgment, The Hon'ble Supreme Court of India has held as under:
"Held, maintainable only if defendant files in evidence before trial Court pleadings in the previous suit to prove identity of cause of action in the two suits."
48. Admittedly, defendants 1 to 3 in their written statement have not raised the contention that, the instant suit is barred U/O.2 Rule 2 of CPC. Due to want of pleadings, Issue was not framed. When such is the case, as per the ratio laid down by Hon'ble Supreme Court of India in the case of Alka Gupta, cited supra, the contention of the defendants 1 to 3 that, the instant suit is barred U/O.2 Rule 2 of CPC is to be dismissed in limine.
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49. In OS.7899/2008 plaintiff challenged the legality of Ex.D.2 show-cause notice dated:22/10/2008 and in OS.No.8376/2008 he has challenged the legality of order of his suspension from 1st defendant Club. Admittedly as on the date of filing of the above suits, the cause of action to file a suit challenging the legality of termination of his membership from the 1st defendant Club was not yet arose. Therefore the question of plaintiff omitting to seek the relief of declaration to declare that, the termination of his membership from the 1 st defendant Club is illegal in the said suits would not arise. Having regard to the reliefs sought in the above 2 suits and in the instant suit, it is clear that, the cause of action for the above suits and the instant suit are different and distinct & the cause of action to file the instant suit has not arisen at the time of filing the above suits. Therefore the contention of defendants 1 to 3 that, the instant suit is barred U/O.2 Rule 2 of CPC is not sustainable. In 89 OS.25642/2009 view of the above, I hold that, defendants failed to prove that, the instant suit is premature and it is not maintainable. Accordingly, I answer Issue No.8 in the NEGATIVE.
50. ISSUE NO.9: Plaintiff has produced Ex.P.9 Notice dated:31/10/2008 & Ex.P.8 Notice dated:09/02/2009 affixed to the notice board of the 1st defendant Club regarding constitution of 3 Man Enquiry Committee as per Ex.D.28(a) Resolution dated:21/10/2008 and termination of his membership from 1 st defendant Club as per Ex.D.28(b) resolution dated:07/02/2009. In the instant case, defendants 1 to 3 have admitted Ex.D.28(a) & (b) resolutions dated:21/10/2008 & 07/02/2009. Plaintiff contends that, he came to know about Ex.D.28(a) & (b) resolutions, when he got the photocopy of Ex.P.8 & 9 notices affixed to the notice board of the 1 st defendant Club. Defendants 1 to 3 contend that, they issued Ex.D.10 Termination Notice to plaintiff through post and informed him about termination of 90 OS.25642/2009 his membership from 1st defendant Club. Ex.D.11 is the postal receipt and Ex.D.12 is the certificate of posting. Defendants have not produced postal acknowledgment to prove that, Ex.D.10 notice was served to plaintiff. In view of defendants 1 to 3 admitted constitution of 3 Man Enquiry Committee by passing Ex.D.28(a) resolution and termination of plaintiff's membership from 1st defendant Club by passing Ex.D.28(b) resolution dated:07/02/2009 which were indicated in Ex.P.8 & 9 Notice, there is no necessity for this Court to discuss more regarding service of Ex.D.10 notice to plaintiff.
51. Order 7 Rule 7 deals regarding molding of reliefs by the Court. A perusal of Ex.P.8 & 9 notices would show that, plaintiff is seeking the relief of declaration to declare that, Ex.D.28(a) & (b) resolutions are illegal and without jurisdiction. Therefore though the plaintiff has sought the relief of declaration to declare that, the termination of his membership 91 OS.25642/2009 as indicated in Ex.P.8 notice dated:09/02/2009 & formation of enquiry committee as indicated in Ex.P.9 notice dated:31/10/2008, having regard to the material available on record and in view of my findings in the foregoing paras, the Court can grant the relief of declarations by molding the reliefs. In view of the above, I hold that, In view of my findings on Issues 1 to 4, plaintiff is entitled for the relief of declaration to declare that, Ex.D.28(b) the resolution dated:07/02/2009 passed by the Managing committee of 1st defendant Club terminating plaintiff's membership from the 1 st defendant Club & the constitution of 3 Man Enquiry Committee by passing Ex.D.28(a) resolution dated:21/10/2008 are illegal & without jurisdiction and all the proceedings of the said 3 Man Enquiry Committee including Ex.D.17 Report are illegal and without jurisdiction.
52. Plaintiff in the memo dated:14/07/2020 has stated that, he will not press reliefs F, G, J & K i.e., reliefs of Perpetual 92 OS.25642/2009 Prohibitory Injunction. In view of the said memo, plaintiff is not entitled for the relief of Perpetual prohibitory injunctions. Accordingly I answer Issue No.9 PARTLY IN AFFIRMATIVE.
53. IA.NO.5: Defendants 1 to 3 have filed IA.No.5 U/Sec. 195(i)(b) and 340 of Cr.P.C. R/w Sec.151 of CPC and requested the Court to file a complaint against plaintiff in the 10th Addl. Chief Metropolitan Magistrate Court, Bengaluru for the offences punishable U/Sec.463, 471 & 474 of IPC by contending that, plaintiff by forging and fabricating the documents referred to in para No.24 and 55 of the plaint produced to the court to prove his case. Therefore he has to be prosecuted for the above said offences.
54. The learned counsel for the defendants 1 to 3 has strenuously contended that, defendants 1 to 3 have produced Ex.D.35 the original complaint dated:06/06/2008 signed by 110 members of the club to the Secretary of the Club. From this it is 93 OS.25642/2009 evident that, the 110 members of the Club have not given complaint to Registrar of Societies. Plaintiff has created the complaint referred to in para No.24 of the plaint. Therefore he has to be prosecuted for the offences punishable U/Sec.463, 471 & 474 of IPC. Therefore the Court has to file a complaint against plaintiff in the jurisdictional metropolitan magistrate. In support of his arguments, th learned counsel for the defendants 1 to 3 placed reliance on the following judgments:
1.2006 Crl.L.J. 4109 - Dr.SUBIR KUMAR V/s. PRASAR BHARATI BROADCASTING CORPORATION OF INDIA.
2.1982 Crl.L.J. 2079 - GEEJ RAJ
V/s. STATE OF RAJASTHAN &
ANOTHER.
3.1987 Crl.L.J. 1994 - VITTAPPAN
V/s. STATE.
4.AIR 1978 SC 290 - K.KARUNAKARAN
V/s. T.V.EACHARA WARRIER &
ANOTHER.
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5. 2007 Crl.L.J.2339 - COURT ON ITS
OWN MOTION V/s. KANWALJIT
S.SAREEN.
55. The learned counsel for plaintiff has strenuously contended that, plaintiff has produced the certified copy of the complaint given by 110 members of the 1 st defendant Club to the Registrar of Societies. The Registrar of Societies has produced the copy of the said complaint to the Court. He submit that, the documents referred by plaintiff in para No.55 are the certified copies of the court records. There is zero evidence to prove that, the said certified copies are not genuine and they were created.
He submits that, plaintiff to state the facts and events occurred before termination of his membership from 1 st defendant Club has stated about documents referred to in para No.24 & 55 of the plaint. Those documents are not relevant to prove plaintiff's case. Therefore the plaintiff did not mark them as exhibits. Therefore the plaintiff is not placing reliance on those documents to prove 95 OS.25642/2009 his case. He submits that, the documents which are not produced in the evidence, cannot be a basis for referring a complaint U/Sec.195(i)(b) and/or Sec.340 of Cr.P.C. In support of his arguments he placed reliance on the judgment reported in (1981) 2 SCC 185 - "STATE OF KARNATAKA V/S HEMA REDDY @ VEMA REDDY AND ANOTHER" In this case, the Hon'ble Supreme Court of India has held as under:
"The legislature did not intend to extend the prohibition contained in Section 195(1), Cr.P.C to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party. Section 195(1)(b) requires that the offence under Section 193, IPC should be alleged to have been committed in or in relation to, any proceeding in any Court. Since the forged sale deed was not produced in evidence in any stage of the redemption suit, Section 195(1) (b), Cr.P.C is not attracted."
56. I went through the rulings cited supra. To initiate proceedings U/Sec.195(i)(b) and/or Sec.340 of Cr.P.C, the Court in addition to viewing the magnitude of injury suffered by a person effected by a forged document has also to consider the effect or impact of producing such a document upon the administration 96 OS.25642/2009 of justice and taken into consideration the facts and circumstances of the case, if the Court is of the opinion that, it is expedient in the interest of justice to make a complaint, then the Court can either conduct enquiry U/Sec.340 of Cr.P.C or refer the complaint to the jurisdictional magistrate U/Sec.195(i)(b) of Cr.PC. Keeping in mind the ratio laid down in the above cited judgments, let us consider about the documents which the plaintiff referred to in para No.24 & 55 of the plaint and its effect on defendants 1 to 3 and administration of justice.
57. In para No.24 of the plaint, plaintiff has stated that, to take revenge against him, defendants 3 to 20 and other members of the 1st defendant Club who were not in good terms with him collected signatures of about 110 members of the Indiranagara club and lodged complaint dated:04/06/2008 to the Registrar of Societies.
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OS.25642/2009
58. In para No.55 of the plaint, plaintiff has stated that, he has filed suits in OS.No.7899/2008 & 8376/2008 questioning the legality of Ex.D.2 show-cause notice dated:22/10/2008 and suspension of his membership from 1 st defendant Club. Plaintiff contends that, after he came to know about termination of his membership from the 1st defendant Club, he withdrawn the above suits and filed the instant suit.
59. A perusal of record would show that, on 13/07/2018 summons was issued to the Registrar of societies to produce the complaint dated:04/06/2008 given by 110 members of Indiranagara club. On 23/08/2018, the Official Registrar of Societies appeared before the court and filed memo with copy of the complaint dated:04/06/2008 given by 110 members of the Indiranagara club along with Covering letter. In the covering letter the Registrar of Societies has stated that, the original is not available in the file and only the copy is available. On 98 OS.25642/2009 20/01/2009, plaintiff has produced the certified copy of the said complaint issued by Registrar of societies.
60. The plaintiff has also produced the certified copies of the memos filed by him in OS.No.7899/2008 & 8376/2008. The learned counsel for the plaintiff placed reliance on the judgment of Hon'ble Supreme Court of India in the case of "STATE OF KARNATAKA V/S HEMA REDDY @ VEMA REDDY AND ANOTHER" reported in (1981) 2 SUPREME COURT CASES
185. In the said case, it is stated that, when the document alleged to have been forged not produced in evidence by marking as exhibit to prove the case by the party who produced it, Sec.195(i)(b) of Cr.P.C. is not attracted. A perusal of record would show that, plaintiff has not marked the complaint dated:04/06/2008 alleged to have been given by 110 members of 1 st defendant Club against the managing committee of the 1 st defendant Club for the year 2007-08 and he has also not marked 99 OS.25642/2009 the memos filed by him in OS.No.7899/2008 & 8376/2008. Therefore plaintiff is not placing reliance on those documents to prove his case. In the instant case, plaintiff is seeking the relief of declarations to declare that, the termination of his membership from 1st defendant Club and the constitution of 3 Man Enquiry Committee to conduct enquiry as per Ex.D.28(a) &
(b) Resolutions are illegal and without jurisdiction. To substantiate the said contention, the above 3 documents referred to in para No.24 & 55 of the plaint are neither material nor relevant. While drafting the plaint, the plaintiff to state the facts & events took place before termination of his membership from 1st defendant Club in chronological order, has stated about the above 3 documents. At the time of trial, he by realizing that, those documents are not required to prove his case, did not mark them as exhibits. Therefore the plaintiff is not placing reliance on those documents to prove his case. In addition to that, plaintiff has produced the certified copy of the complaint 100 OS.25642/2009 dated:04/06/2008 signed by 110 members of the 1 st defendant Club issued by the Registrar of Societies. The Registrar of Societies appeared before the Court and produced the photocopy of the very same document. From this it is evident that, the plaintiff by placing reliance on certified copy issued by Registrar of Societies about giving complaint against him and other members of managing committee for the year 2007-08, has stated about it in the plaint. No man of prudence, will create a complaint making so many allegations against himself which defendant alleged against him in the written statement to produce in a case filed by him. Creation of such a complaint will not in any way help the plaintiff to substantiate his case. Regarding memos filed in OS.No.7899/2008 & OS.No.8376/2008 plaintiff has produced the certified copies issued by the Court. Defendants 1 to 3 have not examined the Court official in charge of copying branch or produced any document of a Court to substantiate their contention that, certified copies of the 101 OS.25642/2009 documents produced by the plaintiff are not the genuine certified copies and the plaintiff created those certified copies. In view of my aforesaid findings, I hold that, there is no cogent and convincing material to hold that, plaintiff created the above documents. In addition to that, in view of plaintiff has not relied upon those documents to prove his case, as per the ratio laid down in the case of "HEMA REDDY" cited supra, absolutely there is no necessity to register a complaint against the plaintiff for the offences punishable U/Sec.463, 471 & 474 of IPC In view of my afore said findings, IA.No.5 filed by defendants 1 to 3 is deserve for dismissal.
61. ISSUE NO.10: In view of my reasons and findings on above issues, I pass the following:
ORDER Plaintiff's suit is partly decreed with costs.
102
OS.25642/2009 The termination of the plaintiff's membership from the 1st defendant Club as per Resolution dated:07/02/2009 and the constitution of 3 Man Enquiry Committee as per Resolution dated:21/10/2008 passed by Managing Committee of the 1st defendant Club for the year 2008-09 are declared as illegal and without jurisdiction.
All the proceedings of 3 Man Enquiry Committee and its Report dated:10/04/2009 are declared as Null and Void.I.A.No.5 filed by defendants 1 to 3
U/Sec. 195(i)(b) and 340 of Cr.P.C. R/w Sec.151 of CPC is dismissed.
************** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 23 rd day of December 2020) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 103 OS.25642/2009 ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 SRI. C. N. DINESH MALAVAIAH LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Copy of the interim enquiry report of K.H.Thimmaiah dated: 6.8.2008 Ex.P.2 Copy of the show-cause notice issued by the District Registrar dated: 6.8.2020 Ex.P.3 Copy of the District Registrars Final report dated:
26.8.2008 Ex.P.4 Certified copy of the letter from District Registrars dated: 18.12.2008 addressed to plaintiff.
Ex.P.5 Certified copy of letter from District Registrars dated:20.03.2014 addressed to the plaintiff. Ex.P.6 Copy of the bylaw of the defendant No.1 Club Ex.P.7 Termination order dated: 07.02.2009 passed by the Managing Committee of defendant No.1 club terminating the plaintiff from the membership of the defendant No.1 club Ex.P.8 Certified copy of Notice dated: 9.2.2009 Ex.P.9 Certified copy of Notice dated:31.10.2008 Ex.P.10 C.D. pertaining to Ex.P. 8 & 9 photos Ex.P.11 Reply dated: 24.06.2011 104 OS.25642/2009 LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW.1 SRI. NAGENDRA LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D 1 Certified copy of the Bylaws of the 1st defendant Club Ex.D 2 Show cause notice dated: 22.10.2008 Ex.D.3 Reply to Ex.D. 2 Ex.D.4-6 Show-cause notices Ex.D. 7 Certified copy of the order on I.A.No.1 in O.S. No. 7899/2008 Ex.D. 8 Certified copy of the order on I.A. No.1 in O.S. No. 8376/2008 Ex.D. 9 Certified copy of the order on I.A. No.2 in O.S. No. 8376/2008 Ex.D. 10 Termination notice dated:3.3.2009 Ex.D.11&12 Postal receipts Ex.D. 13&14 Letters Ex.D. 15 Certified copy of charge sheet in C.C.No.6810/2017 Ex.D. 16 Certified copy of FIR in Cr.No.509/2012 Ex.D. 17 Three man Enquiry Committee report Ex.D. 18 Enquiry report dated: 17.06.2009 Ex.D. 19 Annual report and accounts for the year 2008-09 Ex.D. 20 Order of District Registrar dated: 14.05.2019 Ex.D. 21 Notice dated: 29.03.2010 105 OS.25642/2009 Ex.D. 22 Notice dated:07.07.2018 Ex.D. 23 Certified copy of order in MFA 1208/2010 Ex.D. 24 Certified copy of chief of DW.1 Ex.D. 25 Certified copy of order sheet in O.S. No. 8376/2008 Ex.D. 26 Certified copy of complaint dated: 10.06.2008 Ex.D 27 Certified copy of the order dated: 16.06.2008 passed by District Registrar of Society Ex.D 28 Register of Managing committee meetings and proceedings from September 2008 to June 2008 28(a)&(b) Minutes of meeting dated: 21.10.2008 & 13.02.2008 Ex.D 29 Photocopy of order sheet of Appeal 511/2008 Ex.D 30 Certified copy of order sheet in O.S.No.7899/2008 Ex.D 31 &32 Memos Ex.D 33to 35 Certified copies of the letters (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)