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are being violated by the defendants by opening the membership for the persons who have not cleared their arrears and a right to vote is being given. Even the fake persons are being included as members without payment of the admission fees. That the representation made by the plaintiff have not been conceded. All the actions taken by the president are again in violation of the by­laws of the memorandum of association as the competent authority for all purposes is the secretary so the action taken by the president are void ab­initio and illegal. That list of the members made by the Treasurer/Welfare Association shows the name of 455 persons alongwith the name of 131 members who paid their dues for the year 2014­15, hence, 344 members are made in violation of the bye­laws. Out of 455 members only 134 members attended the GBM and even the proxy attendance was marked which is not permissible. The decisions taken their in the GBM are completely in violation of by­laws hence cannot be given effect. It is further stated that defendant no.3 has allowed the proxy voting in the forthcoming elections which is not permissible under the by­laws. Hence, the present suit is filed by the plaintiff.

was part of GBM did not protested or objected to any decision taken and have filed the present suit as an after thought to scuttle the process of elections which is going to be held day after tomorrow. Ld. counsel further argued that it is more than 3 years passed that the election has not taken place following which the president issued the circular and subsequently conducted the GBM and notified the minutes of the same which was within the authority as the secretary was not taking any initiative in this respect. It is further argued that defendant no.3 is empowered to allow proxy voting subject to some regulations which is not prohibited in the by­laws of the association. Arguing further Ld. counsel submitted that plaintiff is not contesting the elections so no irreparable loss is going to be caused to the plaintiff. It is further argued that all the dues/arrears have been paid by the existing members and the new members have also paid the subscription fees alongwith the admission fees so the claim of the plaintiff that fake members are being including by changing the rules is completely false and baseless. It is further argued by Ld. counsel that as per the rules the nomination has to be filed by the candidate in person whereas the plaintiff did not file the same in person on date fixed i.e. on 9th and 10th of February 2016 as she was out of station and no ground required to be complied with in case of absence have been mentioned by the plaintiff so her nomination form was rejected. It is further argued that the election process have already been setting motion so it should not be stopped at this intermediate stage. It is further argued that the relief sought in present application is the same which is prayer in the main prayer clause so it cannot Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

6. Now coming to the case whether the plaintiff has established a prima facie case in his favour. Firstly, the claim of the plaintiff that defendant no.1 is not the president false flat in view of his own averments impleading the defendant no.1 as President of the SERWA. Secondly, there is nothing on record to show that defendant no.1 has resign from the association or ceases to be the President as on date. Now coming to the further contention raised by the plaintiff that the action taken by president by calling General Body Meeting and taking decision thereof are in violation of by­laws of the memorandum of association. Bare perusal of the MOA reveals that the president is empowered to convene a special meeting of general body special matters required for consideration. It is not disputed that secretary i.e. defendant no.2 has not taken any initiative to call any general body meeting for the last three years and more than three years have been passed since the elections were held and therefore issuance of the circular by the president for calling a general body meeting cannot be said to be in violation of the memorandum of association. It is further important to note here that plaintiff and the secretary attended the GBM and no protest or objections on the function of GBM have been registered by the plaintiff or the secretary. Prima facie plaintiff has failed to show that fake members or the non­ members participated in the annual GBM on 17.01.2016. I completely agree with the argument put forth by Ld. counsel for defendant no.3 that Returning Officer is empowered to laid down the procedure though with the parameters of the rules and regulations as enunciated in the MOA so allowing of proxy voting on the day of election subject to some strict rules Sangeet Bhatia Vs Sarvodya Enclave Residents Welfare Association & Ors.

compliance of which is required is not barred in the by­laws though not explicitly provided in the MOA. Hence, it cannot be considered as an illegality on the part of defendants. I further completely agree with the argument put forth by Ld. counsel for defendant no.3 that the nomination form has to be deposited by the candidate himself or herself and plaintiff could not authorized anyone on her behalf to fill and deposit the same. Ld. counsel for the plaintiff has contented that defendants have allowed the proxy voting but have not allowed the proxy to deposit the nomination form which is contradictory to the stand taken by the defendants themselves. I would like to note here that proxy voting an proxy filing of nomination form stand on completely different footing. It is important to note that plaintiff has not complied with the requirement of appointing proxy as well as per the regulations circulated by the defendants so she cannot take the plea of applying same yard stick in both cases.