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[Cites 4, Cited by 0]

Delhi District Court

Sarojini Nagar Gymkhana vs Delhi & District Cricket Association ... on 23 August, 2008

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                IN THE COURT OF Sh. SANJEEV AGGARWAL
                         ADDL. SR. CIVIL JUDGE : DELHI.


                                     MCA 94/2008
Sarojini Nagar Gymkhana                                                 ...APPELLANT

                                       VERSUS



Delhi & District Cricket Association Ltd.                              ...RESPONDENTS



ORDER

Vide this order, I will dispose off an application U/O 41 Rule 5 CPC filed on behalf of the appellants.

2 Brief facts, which can be culled out from the trial court record are;

" Defendant No. 1 has formed a Sports Committee for the purpose of organisation and management of the Cricket Sport and Selection of Cricket players for various teams. It is alleged that defendant no. 1 in violation of Clause 22 of the Articles of Association of defendant no. 1 had held annual elections of the Sports Committee by calling upon the secretaries of the previous years. It is further alleged that during the pendency of the Civil Suit for declaration in the Court of Sh. K.S. Mohi, Ld. A.D.J. the defendant no. 1 passed a resolution dated 1.3.2007 wherein it was resolved that each affiliated club shall be entitled to 2 nominate its members to be a member of the Sports Committee of defendant no. 1 and such nominee shall be allowed to vote and contest the election. The said suit was disposed of in terms of the Resolution dated 1.3.2007. It is alleged that the tenure of the sports committee for the year 2007­08 has expired on 31.07.2008. The defunct sports committee is headed by the defendant no. 2. It is alleged that defendants have intentionally not conducted the elections of the Sports Committee by or before 31.07.2008 and have further not completed the requirements necessary to be complied before conducting the elections. It is prayed that defendants be directed to complete all the three pre­requisites for conduction the elections as mentioned in para 10 of the plaint. It is further prayed that defendants be directed to conduct the elections for the year 2008­09 in accordance with the MOA of defendant no. 1 and it AOA and judgment dated 12.4.2007 passed by Sh. K.S. Mohi Ld. A.D. J. It is further prayed that the defunct Sports Committee elected for the year 2007­08 be restrained from exercising any powers and an independent observer/election officer be appointed for conducting the elections.

3. In the W.S. filed on behalf of the defendant no. 1 and 3 and 3 adopted by defendant no. 2, it is stated that the present Sports Committee has the right to continue as such till a new body takes over in the elections to be held for the year 2008­09 which are scheduled for 25.8.2008. It is alleged that plaintiffs have no locus standi to file the present suit. The suit is barred by Principle of estoppel as plaintiffs association earlier took part in the elections held under the supervision of retired District and Sessions Judge in different years and had not raised any objections before the Election Officer or in any proceedings earlier by similar suit. It is averred that the Resolution dated 1.3.2007 is being fully adopted by the defendant Association at the time of election of Sports Committee. It is averred that necessary steps and pre­ requisites for conducting the elections are in process as per rules and the appointment of Election Officer for this purpose is also being made. The election as per rules are scheduled for 25.08.2008.

4. In the WS filed on behalf of defendant no. 4, 5 and 6, it is stated that the present suit is without cause of action against them as the answering defendants also have the same grievances as that of the plaintiffs. It is stated that they have no objection if the suit of the plaintiffs is decreed against defendant no. 1,2 and 3.

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5. It is argued by the Counsels for defendant no. 1, 2 and 3 that the elections are scheduled for 25.08.2008 and the requisition has already been sent to Mr. B.L. Garg, ADJ (retired) to become the Election Officer to conduct the abovesaid elections. It is further argued that there is no fixed date of holding the elections and the elections are duly held every year."

3 Vide order dated 11.08.2008, an application U/O 39 Rules 1 and 2 CPC of the plaintiffs/appellants was dismissed and it is against the said order, the plaintiffs/appellants have come in appeal on various grounds( hereinafter the parties are being referred to by their respective status before the trial court).

4 I have heard ld. counsel for plaintiffs/appellants and ld. counsel for defendants/respondents No. 1 to 3 and perused the record. Counsel for plaintiffs/appellants has argued that though earlier the elections were being held as per the Memorandum and Articles of Association of the defendant No. 1/respondent No. 1 for the term of one year, but now they have given a notice dated 07.08.2008, copy of which has been filed on the trial court record, to all the affiliated clubs that the elections will be held for two years i.e. for the season 2008­09 and 2009­10 of the Sports Committee of DDCA on 25.08.2008.

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5 He has further argued that the said notice of the defendant No. 1 for holding elections for two consecutive terms is absolutely contrary to the Memorandum and Articles of Association of the defendant No. 1, more specifically Article 21 of the said Association, which prescribes that affiliation of any club is only for one year. Consequently, he has argued that the elections cannot be held for two terms simultaneously, which is contrary to the Memorandum and Articles of Association of the defendant No. 1 and he has also argued that defendant No. 1 in the written statement in reply to preliminary objection No. 1 has also admitted that steps are being taken to hold elections for the year 2008­09. Therefore, he has argued that this act of defendant No. 1 in holding elections for two consecutive terms is a mockery of procedure established by law.

6 Counsel for plaintiffs/appellants has further argued that earlier a suit bearing No. 59/2004/1999 was filed by the National Sports Club against defendant No. 1, which was settled vide statement of parties recorded on 12.04.2007 on the basis of resolution carried by the defendant No. 1, whereby defendant No. 1 had agreed that " each affiliated club shall be entitled to nominate its member to be a member of Sports Committee of the Association and such nominee shall be allowed to vote or contest 6 election of the Sports Committee." Counsel for plaintiffs/appellants has therefore, argued that inspite of that, defendant No. 1 is still not inviting any nomination from the affiliated clubs for elections to Sports Committee and is only allowing the past Secretaries of the Clubs to be eligible to contest and vote for the elections for Sports Committee, which are scheduled to be held on 25.08.2008, which is absolutely contrary to the Articles 21 and 22 of the Memorandum and Articles of Association of the defendant No. 1 and also as per the undertaking given by them before the court vide their resolution in suit No. 59/2004 as stated above.

7 On the other hand, counsel for defendants/respondents No. 1 to 3 has argued that the present appeal has become infructuous, as the appellant No. 2 Sh. Ashok Sharma vide letter dated 22.07.2007 had requested the defendant No. 1 to extend the term of the Sports Committee from one year to three years. Consequently, he has argued that appellant No. 2 cannot be allowed to raise a plea to the contrary, as he himself had written a letter dated 22.07.2007 to the defendant No. 1 requesting that the tenure of the Sports Committee be extended from one year to three years and therefore, he is estopped from arguing to the contrary.

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8 Counsel for respondents No. 1 to 3 has further argued that the present suit has become infructuous as all the reliefs sought by the plaintiffs/appellants in the main suit were pertaining, to holding elections for the year 2008­09 and since the elections have already been notified for 25.08.2008, therefore, all the reliefs sought by the plaintiffs in the suit in question stands satisfied/infructuous and he has argued that in any case, defendant No. 1 has nothing to gain as Secretaries are also elected members of the respective associations, who have been elected by following a democratic process and it is their internal matter, as to whom to elect as Secretary and therefore, he has argued that there is nothing wrong in allowing Secretaries to participate in the said election to be held on 25.08.2008.

9 He has further argued that in any case, appellant No. 2 is participating in the said elections to be held on 25.08.2008 and the elections in any case, are being held under the observation of Sh. B.L. Garg, Ld. ADJ (retired), impartiality of whom cannot be doubted by the appellants. He has further argued that it is settled law that once the election process has commenced, it should not be stayed normally. Consequently, he has argued that there is no merit in the appeal as well as in the application U/O 41 Rule 5 CPC of the 8 appellants.

10 I have considered the rival contentions of the parties. Articles 21 and 22 of Memorandum and Articles of Association of the respondent No. 1 are reproduced as under:

"21. Any club from the area controlled by the Association whose objects are similar to those of this Association or is formed to promote the game of Cricket, may apply for affiliation to the Executive committee on the prescribed form giving list of its members alongwith a copy of its constitution, accompanied by affiliation fee as prescribed from time to time for the year. Any Club or Association when affiliated may become entitled to use of Association's grounds and other amenities with the prior approval of the Executive Committee that may be granted to such affiliated bodies.
22. Each affiliated club shall be entitled to nominate its members to be a member of the Sports Committee of the Association in such manner as may be prescribed in this behalf."

11 Further, in suit No. 59/2004 referred to above, which was disposed off as settled vide statement of parties recorded on 12.04.2007 and in terms of settlement Ex. C­1 and it was ordered by the ld. ADJ,Delhi vide order of even date that the parties shall be bound by the terms of settlement Ex. C­1 and as per Clause 2 of the said settlement, which is reproduced as under: 9

" 2) REG. REPRESENTATION OF THE CLUBS THROUGH NOMINATED MEMBERS IN THE SPORTS COMMITTEE.

It was discussed in detail that as per the submission given in para (1), in future registered club will also be treated equal to the institutional club and efforts will be made to get all the clubs registered themselves at the earliest and the making of all payments to the club by cheques only is a step in this direction and as per past practice, each affiliated club shall be entitled to nominate its member to be a member of Sports Committee of the Association and such nominee shall be allowed to vote or contest election of the Sports Committee."

It was agreed by defendant No. 1 that each affiliated club shall be entitled to nominate its member to be a member of Sports Committee of the Association and as such nominee shall be allowed to vote or contest the elections of the Sports Committee. Whereas, vide notice dated 07.08.2008 given on behalf of defendant No. 1 by the General Secretary and Sports Secretary of the defendant No. 1 that elections of the Sports Committee of the defendant No. 1 are scheduled to be held on 25.08.2008 to elect ten members of the working committee for two years i.e. for the season 2008­09 and 2009­10 and it has been further notified vide the said notice that only Secretaries to the Clubs as per records of the year 2007­08, available in the office of the defendant No. 1 Association, will be eligible to vote and contest, 10 which prima facie is contrary to the undertaking given by defendant No. 1 before the court of ld. ADJ, Delhi in the suit No. 59/2004 referred to above, and Ex. C­1, wherein it was undertaken by the defendant No. 1 that each affiliated club shall be entitled to nominate its member to be a member of Sports Committee and as such the nominee shall be allowed to vote or contest the election of the Sports Committee.

12 Further the perusal of the trial court record reveals that as per the documents filed by the defendant No. 1, elections of the Sports Committee are being held since the year 1995 every year and the Article 21 of the Memorandum and Articles of Association of defendant No. 1 clearly stipulates that the affiliation of the any club is only for the period of one year, as the respective club in the area controlled by defendant No. 1 has to apply to the executive committee on the prescribed form giving its list of members alongwith copy of its copy of its constitution, accompanied by affiliation fee as prescribed from time to time. The word " for the year" clearly shows that the membership/affiliation of that particular club with defendant No. 1 is valid only for one year. Therefore, it is not clear how defendant No. 1 is holding elections for two terms simultaneously vide notification dated 07.08.2008 i.e. 2008­09 and 2009­10 in one go, especially when the documents filed by 11 defendant No. 1 on record clearly show that they are always holding elections for Sports Committee for one year, starting from the year 1995. 13 Counsel for respondents No. 1 and 2 has argued that one of the appellants in the present case namely, appellant No. 2 had himself written a letter to them dated 27.07.2007 praying that the term of the Sports Committee be extended from one year to three years. Therefore, he has argued that the appellant No. 2 cannot be allowed to raise a plea to the contrary. This arguments of the counsel for respondents No. 1 to 3 is without any substance, as it is settled law that there is no estoppel against a statutory provision and in this case, in Memorandum and Articles of Association of defendant No. 1, it is prescribed that the affiliation of any club is only for one year, that too on the payment of prescribed affiliation fee and on completion of other formalities and the documents filed by the defendant No. 1 itself reveal that the elections for Sports Committee are being carried out since the year 1995 till 2007 for one year term.

14 Counsel for respondents No. 1 and 3 has failed to place on record any resolution carried out by respondent No. 1 to amend the memorandum and articles of the association thereby increasing the tenure of the Sports committee to two years. Without any amendment to the memorandum and 12 articles of the Association, the same cannot be done as respondent No. 1 is a company duly incorporated under the Companies Act, therefore, it cannot without any resolution by the Executive Committee or the Board of Directors to the effect that there should be an amendment in the memorandum/articles of the Association increase the term of the Sports Committee for two years and hold elections for two terms simultaneously, vide notification dated 07.08.2008 i.e. for the season 2008­09 and 2009­10.

15 Regarding the arguments of the counsel for respondents No. 1 to 3 that the present appeal has become infructuous, as all the reliefs sought by the plaintiffs/appellants have already been carried out by the respondent No. 1 by holding elections on 25.08.2008 as per notification dated 07.08.2008. 16 I have perused the plaint and the application U/O 39 Rules 1 and 2 CPC. In the main suit, the plaintiffs had sought a decree for mandatory injunction, thereby directing the defendants to conduct elections of the Sports Committee for the year 2008­09 in accordance with Memorandum and Articles of Association of defendant No. 1 and also in accordance with the judgment dated 12.04.2007 of the court of ld. ADJ, Delhi and the same relief is sought in the application U/O 39 Rules 1 and 2 CPC. Since from the aforesaid discussion, it is apparent that defendant No. 1 is not carrying out 13 the elections of the Sports Committee, as per the articles/terms mentioned in the Memorandum and Articles of their company, therefore, merely by notifying the elections vide notification dated 07.08.2008, does not make the suit pending before the ld. trial court and appeal herein, as infructuous. Therefore, this argument of the counsel for respondents is without any substance.

17 The defendant No. 1 had also given an undertaking before the court of ld. ADJ, Delhi on 12.04.2007 in some other suit, in which the resolution passed by defendant No. 1 was also exhibited as Ex. C­1, in which they had undertaken that in future, each affiliated club shall be entitled to nominate its members to be a member of the Sports Committee of defendant No. 1 and such nominee shall be allowed to vote and contest the election, whereas vide notification dated 07.08.2008, they have allowed only the past Secretaries to vote and contest in the elections for Sports Committee, scheduled to be held on 25.08.2008, which is absolutely contrary to the said undertaking given by the defendant No. 1 in the court of ld. ADJ, Delhi referred above, as it is quite possible that the past Secretaries of the affiliated clubs may not be nominated by respective clubs to the Sports Committee as some other competent persons may be eligible or may be nominated by respective 14 associations, to be eligible to contest and vote for the post of members of the Sports Committee and in this way, it seems that defendant No. 1 is thwarting the democratic process of the respective affiliated clubs to nominate their members as per their wishes and choice.

18 It is not the case of the defendant No. 1 that they had issued letters to the affiliated clubs for nominating their respective members, who may be eligible for vote and contest in elections for Sports Committee and despite undertaking furnished by them in the court of ld. ADJ, Delhi vide Ex. C­1 that each affiliated club shall be entitled to nominate its members to be a member of the Sports Committee of defendant no. 1 and such nominee shall be allowed to vote and contest the election, which undertaking they had given on 12.04.2007 in suit No. 59/2004.

19 It is not the case of the defendant No. 1 that appellants No. 1 and 2 are not affiliated with defendant No. 1 Association at present. Consequently, plaintiffs have locus standi to file the present appeal. 20 Regarding the argument of the counsel for respondents No. 1 to 3 that ordinarily, if the election process has once started, it should not be interfered with. No doubt, it is settled law that once the election process commences, ordinarily, no interference should be done by the court. However, in cases, 15 where there is a blatant violation of the provisions or the rules by the authority holding the elections, court has ample powers to safeguard the interest of justice to restrain it from doing so when the interest of justice so demands. In the present case, the elections are being held by the defendant No. 1 in complete violation of their memorandum/articles of Association in a totally arbitrary and illegal manner and also as per the undertaking furnished by them in the court of ld. ADJ, Delhi in suit No. 59/2004, on 12.04.2007, vide which they had undertaken that each affiliated club shall be entitled to nominate its members to be a member of the Sports Committee of defendant no. 1 and such nominee shall be allowed to vote and contest the election of the Sports Committee, and yet it is very strange that despite giving said undertaking, the defendant No. 1 is still carrying out elections contrary to the said undertaking given by them before the court of Ld. ADJ, Delhi in afore suit.

21 The defendant No. 1 should have been vigilant enough to hold the elections of the Sports Committee strictly as per the Article 22 of their Memorandum of Association and also as per the undertaking, which is not the case here. Instead of carrying out the said undertaking given before the ld. ADJ, defendant No. 1 have gone a step further and they have now notified 16 the elections vide notification dated 07.08.2008, scheduled to he held on 25.08.2008 for the two consecutive terms i.e. 2008­09 and 2009­10 in one go, whereas, as discussed above, as per the documents filed by them on record, they are only holding elections for one year term(s) since the year 1995. Therefore, in the present case, appellants/plaintiffs have been able to make out a strong prima facie case in their favour and if the elections as notified vide notification dated 07.08.2008 are allowed to be proceeded with in the manner as indicated in the said notification, same will be an abuse of process of law and the rules of the Articles and Memorandum of the Association of defendant No. 1 and it is also contrary to the undertaking given by defendant No. 1 in suit No. 59/2004 before the court of ld. ADJ, Delhi on 12.04.2007. However, no cogent reasons have been given by the ld. trial court while dismissing the application of the plaintiffs U/O 39 Rules 1 and 2 CPC.

22 Balance of convenience also lie in favour of the plaintiffs/appellant since no nominee has been nominated from the affiliated clubs/associations to be eligible to participate and vote for the elections of the Sports Committee of defendant No. 1. Therefore, the same amounts to denial of democratic rights of the members of the affiliated clubs of defendant No. 1 and they will 17 also suffer irreparable loss and injury if the elections are allowed to be carried out in illegal and arbitrary manner, which cannot be compensated in terms of money.

23 Consequently, in view of the aforesaid discussion, the application of the plaintiffs/appellants U/O 41 Rule 5 CPC is allowed and defendants/respondents are restrained from completing the election process of the Sports Committee of the DDCA (defendant No. 1) as notified vide notice dated 07.08.2008. However, defendants are at liberty to re­notify the elections for the term 2008­2009 strictly, as per their Memorandum and Articles of Association and as per the undertaking furnished by them in another suit No. 59/2004 filed before the court of ld. ADJ, Delhi, for the term 2008­2009 during the final disposal of the present appeal. Nothing stated herein shall tantamount to the expression on the merits of the appeal. Copy of this order be given dasti to both the parties as per rules.

Now, to come up for arguments on appeal on 23.09.2008. 

Announced in the open court                                  (Sanjeev Aggarwal)
on 23.08.08                                       Addl. Senior  Civil Judge : Delhi.