Calcutta High Court (Appellete Side)
Mr. Karan Singh Grewal vs The Secretary on 30 July, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.O 2822 of 2019
Mr. Karan Singh Grewal
-Vs-
The Secretary, Calcutta Cricket & Football Club & Ors.
For the petitioner: Mr. Joy Saha, Sr. Adv.,
Mr. Siddhartha Lahiri, Adv.,
Mr. Yash Vardhan Deora, Adv.,
Mr. Rachit Lakhmani, Adv.
For the OP No.1: Mr. Joydeep Kar, Sr. Adv.
For the OP No.4 to 12: Mr. Siddhartha Banerjee, Adv.,
Ms. Soni Ojha, Adv.,
Ms. Aishwarya Chatterjee, Adv.
For the OP No.14: Mr. S.P Mukherjee, Adv.
Heard on: March 11, 2020.
Judgment on: 30 July, 2020.
BIBEK CHAUDHURI, J. : -
1. The plaintiff of Title Suit No.782 of 2019 (hereafter described as the
petitioner) has challenged the legality, validity and propriety of an order dated
24th July, 2019 passed by the learned District Judge, South 24 Parganas at
Alipore in Miscellaneous Appeal No.161 of 2019 dismissing the said appeal
holding, inter alia, that the suit filed by the petitioner was not maintainable;
secondly, the Civil Court has no jurisdiction to try the suit in view of specific bar
under Section 430 of the Companies Act, 2013 (hereafter referred to as 'the said
Act'); and thirdly, question of granting ad-interim injunction in favour of the
petitioner does not arise at all in a suit which is not otherwise maintainable.
2. Shorn off unnecessary details, the following facts are necessary to be
recorded for proper adjudication of the instant application under Article 227 of
the Constitution of India:-
On 12th June, 2019, the Secretary of the Calcutta Cricket and
Football Club, opposite party No.1 herein served a notice to the petitioner
directing him to show cause within seven (7) days from the receipt of the
notice as to why he should not be held guilty for contracting an outstation
player to play cricket for the club in violation of the CAB Rules and thereby
causing financial loss to the club and violating Rule 5.2 of the
Memorandum of Association of the club.
The petitioner immediately on 18th June, 2019 filed Title suit No.749
of 2019 challenging the aforesaid show cause notice with a prayer for
declaration that the said notice was bad, illegal and inoperative and could
not be given effect to and permanent injunction.
However, during the pendency of the suit the petitioner was
suspended from his membership with effect from 19th June, 2019.
Since the club issued interim suspension order against the
petitioner, he withdrew Title Suit No.749 of 2019.
On the selfsame date, the petitioner instituted Title Suit No.781 of
2019 challenging the interim order of suspension dated 19th June, 2019
praying for following reliefs:
a. Leave under Order II Rule 2 of the Code of Civil Procedure,
1908;
b. Decree for declaration that the suspension order dated
June 19, 2019 is null and void and direction that the same
be delivered up and cancelled;
c. Decree for perpetual injunction restraining the defendant
No.1 from taking any steps or further steps on the basis of
or giving any effect or further effect to the suspension order
dated June, 19, 2019;
d. Decree for perpetual injunction restraining the defendants
from taking any other or further coercive steps against the
plaintiff pursuant to notice dated June 12, 2019 and
Suspension Order dated June 19, 2019;
e. Costs of this suit;
f. Any further or other reliefs to which the plaintiff may be
entitled to in law and in equity.
3. During the pendency of the suit, the Club issued permanent order of
suspension on 31st July, 2019. The petitioner has filed an application for
amendment of plaint of Title Suit No.781 of 2019 praying for incorporation of the
aforesaid subsequent event.
4. In Title Suit No.781 of 2019, the petitioner filed an application under Order
XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure
praying for temporary as well as ad-interim injunction restraining the opposite
parties from giving effect to the interim order of suspension dated 19th June,
2019.
5. By an order dated 21st June, 2019, the learned Trial Judge refused to grant
ad interim order of injunction on the following ground:-
"It appears from the office report that Caveat Case No.1456 of 2019
is pending against this suit. Learned Advocate for the plaintiff has
refused an order passed by the Hon'ble High Court at Bombay in
Suresh Seth & Ors. vs. the National Sports Club of India but it
appears that it is not applicable to this suit. Therefore, the interim
prayer for ad-interim injunction of the plaintiff is not considered."
6. The above order was assailed by the petitioner in Miscellaneous Appeal
No.161 of 2019 before the learned District Judge, South 24 Parganas at Alipore.
7. The impugned order was passed by the learned District Judge on 24th July,
2019 dismissing the appeal on the following reasons:-
1. On factual score, the case of the parties is based on several
documents and counter documents veracity of which can only be
considered during trial.
2. The plaintiff withdrew Title Suit No.749 of 2019 without leave of
the court to file a separate suit on selfsame cause of action.
Therefore Title Suit No.781 of 2019 is not maintainable being
barred by the provisions of Order 23 Rule 1 and Section 11 of the
Code of Civil Procedure.
3. The respondent club is a company governed by its Memorandum
of Association. Therefore the Civil Court's jurisdiction to adjudicate the issue upon a Title Suit is barred under the provisions of Section 430 read with Section 280 of the said Act.
8. I have heard learned Senior Counsels appearing on behalf of the petitioner and opposite parties. Written notes of argument have also been filed by both the petitioners and the opposite party No.1. I have carefully perused the notes of written arguments.
9. Mr. Joy Saha, Learned Senior Counsel for the petitioner submits at the outset that the leaned District Judge, South 24 Parganas by passing the impugned order held that the suit filed by the petitioner is prime facie not maintainable in view of the provision contained in Section 430 of the Companies Act, 2013 read with Section 241 of the said Act.
10. According to Mr. Saha, the dispute between the petitioner and the club arises out of a decision taken by the Disciplinary Committee set up by the Executive Committee of the club recommending the petitioner for suspension of his membership. The action taken by the club, according to the petitioner, was illegal and not maintainable in law. The petitioner claims that his primary membership was suspended by the club without proper disciplinary proceeding and the said order of suspension cannot stand. Therefore, the petitioner filed a suit for declaration and injunction against the opposite parties under Section 9 of the Code of Civil Procedure read with Section 34 of the Specific Relief Act.
11. It is submitted further by Mr. Saha that the Companies Act, 2013 has no member of application in the dispute arising between the parties. In order to substantiate his contention, Mr. Saha draws my attention to Section 241 of the said Act, Section 241 authorises any member of the company to file an application to Tribunal for relief where-
a) The affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interests of the company.
b) ... if it has no share capital, in its membership, or in any other manner whatsoever, and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to its interest or its members or any class or members.
12. According to the learned Senior Counsel on behalf of the petitioner, the suit filed by the petitioner concerns the suspension of the petitioner from the membership of the club. The petitioner never complained of any oppression or mismanagement of the club. He has raised the question as to the legality of the order of suspension issued against him. Therefore Section 241 of the said Act is not applicable under the facts and circumstances of the case.
13. Mr. Saha further submits that the suit filed by the petitioner concerns the suspension of an individual member from the club. The suit does not in any manner whatsoever involve the management, control, running of business and/or administration of the club and therefore, Section 241 of the said Act has no manner of application so far as it relates to mismanagement of the company.
14. Secondly, the suit is not a class action complaining of any oppression to any class or category of members. Suspension of the petitioner does not affect management of the club or that the said order is oppressive qua management of the club.
15. Therefore, it is submitted by Mr. Saha that a suit of civil nature is quite maintainable under the facts and circumstances of this case. In support of his contention, Mr. Saha refers to the following decisions:
1. Vijay Chhibber & Ors. vs. Delhi Gymkhana Club Ltd: (2019) SCC Online Del 9019 : Manu/DE/2100/2019
2. Delhi District Cricket Association vs. Vinod Tihara & Ors. :
(2018) SCC on line Del 11419.
16. It is further contended by Mr. Saha, learned Senior Counsel on behalf of the petitioner that the proviso to Section 244 states that the tribunal may, on an application made to in this behalf, waive of any of the requirements specified in Clause (a) or (b) so as to enable the members to apply under Section 241 of the said Act. It is needless to say that Section 244 prescribes the minimum number of members of a company who shall have the right to apply under Section 241 of the said Act. According to Mr. Saha the provision contained in the proviso to Section 244 does not prescribe for natural forum to obtain any declaration against the company. It says about a special leave which may or may not be granted by the NCLT. Where the statute provides two forums, viz, (1) natural forum and (2) another forum by special leave which is fully dependent upon the decision of the tribunal, civil courts jurisdiction cannot be held to be exclusively barred.
17. The next limb of argument advanced by Mr. Saha on behalf of the petitioner is that the Board of the Cricket and Football Club passed an order of suspension on 19th June, 2019. The plaintiff instituted a suit challenging the said order of suspension on 21st June, 2019. The application for injunction was not actually heard by the learned trial court. From the order passed by the learned trial court it is ascertained that a caveat was lodged on behalf of the defendants and the petitioner was directed to serve copy of the application for temporary injunction upon them and at the same time the petitioner refused to grant ad-interim injunction prayed by the petitioner. The law relating to caveat says that before any order be passed, the opposite party must be given opportunity to be heard. Prayer for ad-interim injunction cannot be refused on the ground of lodging of caveat.
18. Learned District Judge in the impugned order failed to consider the said provision of the Code of Civil Procedure. On the other hand, she went further to hold that the suit is not maintainable on the ground that the civil court allegedly lacks jurisdiction over the dispute and directed trial court to dispose of the application for temporary injunction on the basis of the observation made by her.
19. It is strenuously urged by Mr. Saha that the impugned order passed by the learned District Judge, South 24 Parganas practically made the petitioner non- suited when it is held by the learned District Judge that the suit is not maintainable, how can there be a direction for hearing of the temporary injunction by the learned trial court.
20. Thus, Mr. Saha concludes that the suit for declaration that the order of suspension against the plaintiff/petitioner by the club is illegal, invalid and not in accordance with the memorandum of articles of the club is valid and legally maintainable before the civil court. The principle of granting ad-interim injunction is to see as to whether the plaintiff has been able to make out an arguable case. In other words presentation of a strong arguable case is the prima facie case which, if established by the plaintiff/petitioner, at the initial hearing, entitle him to get an order of ad-interim injunction because his cause would be frustrated if no injunction is granted and the order challenged by him remains operative. Therefore Mr. saha submits that the impugned order cannot stand and should be set aside.
21. Mr. Joydeep Kar, learned Senior Counsel on behalf of the opposite party No.1 on the other hand argues that the petitioner had instituted Title Suit No.781 of 2019 assailing an order of suspension passed on 19th June, 2019 suspending him from the membership of the defendant No.1 club in contemplation of disciplinary proceeding for alleged gross misconduct by him. In the said suit the petitioner filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an ad-interim order of stay of operation of the order of suspension it was challenged by him. On refusal of such prayer, the petitioner moved the learned District Judge, South 24 Parganas in miscellaneous appeal. The appeal being dismissed holding the suit not maintainable, the instant revision was filed by the petitioner.
22. At the outset it is contended by Mr. Kar that prior to the institution of Title Suit No.781 of 2019, the petitioner instituted Title Suit No.749 of 2019 challenging the legality and validity of a notice to show cause as to why a disciplinary proceeding would not be initiated against him for violation of the memorandum of articles of defendant No.1 club. In the said suit also the petitioner failed to get an order of injunction and the notice to show cause ultimately culminated into the order of suspension passed in contemplation of disciplinary proceeding. After the order of suspension being passed the petitioner abandoned Title Suit No.749 of 2019 and withdrew the said suit without any leave to file a fresh suit. Then he filed Title Suit No.781 of 2019 against the opposite parties. The first and foremost objection raised by Mr. Kar is that the subsequent suit is not maintainable after withdrawal of the earlier suit without the leave of the court. The petitioner was debarred from challenging the notice to show cause under the provision of order 23 Rule 1 of the Code of Civil Procedure.
23. It is further pointed out by Mr. Kar that during pendency of Title Suit No.781 of 2019, the disciplinary proceeding was concluded and a penalty was inflicted upon the petitioner suspending him for one year. The said final order passed by the appropriate authority inflicting penalty upon the petitioner having not been made subject matter of challenge in Title Suit No.781 of 2019. The framing of suit was bad and not entertainable under the law.
24. Secondly, it is urged by Mr. Kar that the petitioner instituted Title Suit No.781 of 2019 on the allegation that the order of suspension was issued in derogation of the memorandum of articles of the company causing thereby infringed the legal rights of the petitioner. The framing of suit clearly shows that it was barred under Section 430 of Companies Act. The jurisdiction of the civil court was expressly barred under Section 430 of the Companies Act which the learned National Company Law Tribunal (NCLT) is empowered to entertain. Since the suit is not maintainable question of granting interim order temporary injunction does not arise at all.
25. Mr. Kar next draws my attention to Section 280 of the Companies Act, 2013.
"Section 280 of the Companies Act, 2013 reads as follows:-
280. Jurisdiction of Tribunal.- The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of,-
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company, including claims by or against any of its branches in India;
(c) any application made under section 233;
(d) any question of priorities or any other question whatsoever, whether of law of facts, including those relating to assets, business, actions, rights, entitlements, privileges, benefits, duties, responsibilities, obligations or in any matter arising out of, or in relation to winding up of the company, Whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made or such scheme has been submitted, or is submitted, before or after the order for the winding up of the company is made."
26. Title Suit No.781 of 2019 was instituted by the petitioner against a company. Therefore NCLT is the only forum to entertain such suit under Section 280 of the said Act. According to Mr. Kar the learned Appellate Court below committed no jurisdictional error in observing that the remedy of the petitioner could have been available only before the tribunal. The learned Appellate Court below, therefore rightly dismissed the miscellaneous appeal filed by the petitioner and refused to grant interim protection in his favour. Furthermore, during the pendency of the suit the disciplinary proceeding was concluded and final order suspending the petitioner's membership for one year was passed therefore the suit filed by the petitioner was infructuous. It is also submitted by Mr. Kar that no challenge was thrown to the final order of penalty inflicted by the opposite party No.1 upon the petitioner. So, there was no occasion for the learned courts below to reinstate the petitioner as a member of the company. In support of his contention Mr. Kar refers to a decision of the Hon'ble Supreme Court in Shree Jain Setambar Terapanthi Vid(s) vs. Phundan Singh & Ors. reported in (1999) 2 SCC 377. On the selfsame point he also relies upon a Division Bench judgment of the Madras High Court in K.P.M Aboobuckeh vs. K. Kunhamoo & Ors. reported in AIR 1958 Mad 287.
27. Mr. Siddhartha Banerjee, learned Advocate for the opposite party Nos.4 to 12 has strongly criticized the argument advanced on behalf of the petitioner placing reliance of different provisions of the Companies Act, 2013. According to Mr. Banerjee contention of the petitioner to the effect that Section 241 and 242 of the said Act permit only a class action and not redressal of personal grievances of an individual is fully misconceived. It is also misconceived to submit that Section 244 (1)(b) of the Companies Act provides that only 1/5th of the total members of the company or a larger group of members can invoke the jurisdiction of NCLT. As the petitioner does not represent 1/5th of the total number of members of the company, he had no access to the tribunal. Mr. Baneerjee further refers to the provisions laid down under Section 397, 398 and 399 of the Companies Act to enable the NCLT to entertain an individual action and to give an access to every individual member to the tribunal for redressal of his or her grievances. Under Section 397 of the said Act, a member of a company could approach the NCLT complaining of an action oppressive to any member or members of the company. Section 241 of the said Act enables a member to approach the tribunal complaining of an action prejudicial or oppressive not only to any other member or members but also to him individually. Section 241 of the Companies Act thus permits an individual grievance of a member to be agitated before by the tribunal. According to Mr. Banerjee proviso to Section 244(1)(b) of the said Act does not debar an individual member of the company to agitate his grievance before the tribunal and the tribunal has only jurisdiction to decide the issue. In support of his contention Mr. Banerjee refers to an unreported judgment delivered by the Hon'ble National Company Law Appellate Tribunal in company appeals (AT) No.133 and 139 of 2017 (Cyrus Investments Pvt. Ltd & Ors. vs. Tata Sons Private Limited and Ors).
28. On factual aspect of the matter it is submitted by Mr. Banerjee that the petitioner had unlawfully engaged an outstation player to play for the club in violation of the extant rules framed by the Cricket Association of Bengal and had thus posed the club to a risk of loss of its goodwill and reputation. The petitioner has also siphoned out fund from the company's exchequer by forging and fabricating several documents. There were several other serious allegations against him. The company could not ignore such gross misconduct on the part of the petitioner and initiated disciplinary proceeding upon him after issuing a notice to show cause. According to the opposite parties the action taken by the club and its Board of Directors was a part of indoor management of the club and the learned courts below were fully justified by not interfering with the internal matters of body corporate. In support of his contention Mr. Banerjee refers to a decision of this Court in the case of the Institute of Indian Foundryman & Anr. vs. Dr. Navojit Basu and Ors reported in (2014) SCC online Cal 19639.
29. In reply Mr. Saha, learned Counsel on behalf of the petitioner submits that Title Suit No.781 of 2019 cannot said to be barred under the provision of Order 23 Rule 1 of the Code of Civil Procedure on the ground that in the previous suit being Title Suit No.749 of 2019 the petitioner challenged a notice to show cause as to why disciplinary proceeding would not be initiated against him for alleged gross misconduct committed by him against the interest of the club. Subsequently, during the pendency of Title Suit No.749 of 2019 the petitioner was suspended. Again during the pendency of the subsequent suit the opposite parties concluded a sham disciplinary proceeding and passed final order of suspension of membership of the petitioner for one year. The subsequent event was not in existence at the time of filing of the first suit. Therefore it is not at all required to obtain leave of the court before filing Title Suit No.781 of 2019 in support of his contention Mr. Saha refers to a decision of the Hon'ble Supreme Court in the case of Union of India vs. H.K Dhruv reported in (2005) 10 SCC
218.
30. On perusal of the said judgment it is found that the decision relates to applicability of the provision of Order 2 Rule 2 of the Code of Civil Procedure and it is held by the Hon'ble Supreme Court that in order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before the court. On the facts found and as recorded in the judgment of the High Court and with which we find no reason to defer the second demand raised by the respondent was not available to be made a part of the claim made in the first application the power enacted Order 2 Rule 2 CPC is clearly not attracted.
31. Order 23 Rule 1 of the CPC speaks of withdrawal of suit or abandonment of part of claim. Rule 1 of Order XXIII covers two types of cases (i) where the plaintiff withdraws a suit or part of a claim with the permission of the court to bring a fresh suit on the same subject matter. (ii) where the plaintiff withdraws a suit without permission of the court.
32. Order XXIII Rule 1 sub-rule (3) runs as follows:
(3) Where the court is satisfied-
(a) that the suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or such suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
33. It is well settled that cause of action and relief claimed in the first suit must be identical with those in the second suit in order to bar the latter in the instant case in am in agreement with the learned Senior Counsel on behalf of the petitioner that the suit is not barred under Order XXIII Rule 1 sub-rule (3) CPC. When the previous suit was filed, the petitioner was not suspended. During the pendency of the said suit the petitioner was suspended therefore the cause of action to challenge an order of suspension arise after institution of Title Suit No.749 of 2019. As the said cause of action arise subsequently the petitioner had every right to institute a fresh suit challenging the order of suspension.
34. It is contended by Mr. Kar, learned Senior Counsel on behalf of the opposite party No.1 that during pendency of the suit disciplinary proceeding was concluded by defendant No.1 club and final order suspending the petitioner was passed for a period of one year. In reply Mr. Saha submits that the petitioner has already filed an application under Order VI Rule 17 of the Code of Civil Procedure praying for amendment of plaint in inserting culmination of disciplinary proceeding and punishment inflicted upon the petitioner. The said application is pending before the trial court.
35. Be that as it may, the main question that falls for adjudication is as to whether Title Suit No.781 of 2019 is maintainable under the facts and circumstances of this case or that under various provisions of the Companies Act 2013 Civil Court's jurisdiction is barred to entertain such suit.
36. Chapter 16 of the Companies Act starts with the heading "prevention of oppression and mismanagement". Section 241 of the said Act authorizes any member of the company to apply to the tribunal complaining that - (a) the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interest of company; or (b) the material change, not being a change brought about by, or in the interest of any creditors, including debenture holders or any class of shareholders of the company, has taken place in the management or control of the company, whether by an alteration in the Board of Directors, or manager, or in the ownership of the company's shares, or if it has no share capital, in its membership or any other manner whatsoever, and that by reason by such change, it is likely that the affairs of the companies will be conducted in a manner prejudicial to its interest or its members in any class of members. However, such application shall be made by the member/members as stated in Section 244 of the said Act. I have already stated that the proviso to Section 244 gives discretionary power to the tribunal to permit an individual member to make his grievance against the affairs of the company being conducted in a manner prejudicial to public interest or prejudicial or oppressive to him. Section 245 of the said Act clearly describes the action taken by a member or group of members under Section 244 of the said Act as "class action". Clauses A-H of Section 245(1) describes the nature of breach by the company which may be agitated before the tribunal. It clearly reveals that where the affairs of the company is being conducted without following the memorandum of articles or that a resolution is taken violating the memorandum of articles of the company, or similar other provisions prejudicial to the class of members of the company, the same is void being violative of 'class action'. In the instant case the petitioner never agitated any provision of the Companies Act as prejudicial to its members or oppressive in nature. He has challenged the action of the Board of Directors suspending him from the membership of the club. Such action, in my considered view does not follow within the jurisdiction of NCLT.
37. Section 9 CPC gives jurisdiction to try all suits of civil nature excepting those which are expressly or impliedly barred by any other law. A bar to file a civil suit may be expressed or implied. An express bar is whether statue it is contain a provision that the jurisdiction of a civil court is barred, as for example Section 430 of the Companies Act. An implied power may rise when a statue provides a special remedy to an aggrieve party like a right of appeal. In Sri Ramendra Kishore Biswas vs State Of Tripura And Ors. reported in AIR 1999 SC 294 it is held by the Hon'ble Supreme Court that it is appropriate to relegate a person to exhaust Departmental remedies when he approaches the Court without exhausting departmental remedies under the service rules but to hold that the civil court had no jurisdiction while hearing a second appeal, after the matter has been litigated in civil court for more than five years was to say the least, not proper. Exclusion of civil court jurisdiction cannot be readily inferred on the ground of availability of remedy and forum under Special Act when the action in question was taken without complying with the provisions of the Act. The decision of the Hon'ble Supreme Court in M.P. Electricity Board, Jabalpur vs. M/S. Vijaya Timber Co. reported in 1997 (1) SCC 68 may also be relied on in this regard. Even assuming that NCLT has the jurisdiction to decide the question in hand, civil courts jurisdiction cannot be said to be barred as the power of NCLT under the proviso is discretionary in as much as NCLT may allow or disallow the petitioner to place his grievance before the tribunal. Under such circumstances, civil court's jurisdiction cannot be said to be barred under the Law. Before I conclude, let me state few words about the nature of the dispute between the parties. Allegation against the petitioner is that the petitioner allowed an outstation cricketer to play second division cab league for defendant No.1 club though according to the rules of CAB no outstation player is permitted to take part in cricket during tournament on behalf of any club registered under CAB. It is also alleged that by engaging the said outstation cricketer the petitioner compelled the club to spent huge sum of money towards conveyance charges and stay of the said outstation cricketer.
38. Importantly enough, till date CAB did not raise any allegation against defendant No.1 club. On the contrary, the petitioner also did not make his grievance challenging the memorandum of article or any resolution taken by the Board of Directors virtually altering the memorandum of articles or any other action of the defendant No.1 club or its Board of Directors which is prejudicial to him or any class of member or members at large. On the contrary, the allegation of the defendant is that the rules of natural justice procedure audi altarem partem were not given to him before passing an order of suspension.
39. In view of such circumstances and for the reasons recorded above, I am inclined to hold that the learned District Judge, South 24 Parganas sitting in appellate jurisdiction failed to exercise her jurisdiction and the order passed by her to the extent regarding maintainability of the suit is liable to be set aside. With regard to the prayer for ad-interim injunction, I find that the learned trial judge did not dispose of the application under Order 39 Rule 1 and 2 CPC filed by the petitioner on merit. Since the opposite parties lodged caveat the learned trial judge will ensure service of copies of such application upon the opposite parties and hear out the application for injunction on merit within one month from the date of communication of this order.
40. The instant revision is thus allowed on contest, however without cost.
41. The judgment and order passed by the learned District Judge, South 24 Parganas in Miscellaneous Appeal No.161 of 2019 is set aside.
(Bibek Chaudhuri, J.)