Document Fragment View

Matching Fragments

(iv) The decision for appointment of new trustees has to be taken by all, either unanimously or by majority of such surviving and continuing trustees.

5. The suit contends that on 23.10.2007, a meeting of the trustees was held in which the third defendant proposed for fresh appointments on the basis of suggestions from existing trustees, to be made to the second defendant who was, at that time, Chairman of the meeting. It is stated that the procedure stated was that such suggestions would be considered by the second defendant who would consult with the first plaintiff - the managing trustee and appointment two new trustees. This Resolution or proposal, say the plaintiffs, was not in conformity with the Deed of Trust. They accordingly allege to have expressed their unwillingness. It is alleged that the third defendant explained that the procedure was in accordance with the Trust Deed and in accordance with law, which the plaintiffs believed. On that date, i.e. 23.10.2007, the following Resolution was made: -

"2. Resignation letters of Shri P.T. Kuriakose and Dr. L.S. Kothari and appointment of new Trustees:
The Board then discussed the resignation letters forwarded by Dr. L.S. Kothari and Shri P.T. Kuriakose. The Board placed on record its deep sense of gratitude to the services rendered by Shri Kuriakose and Dr. Kothari, and accepted their resignations.
Shri Viresh Pratap Chaudhary stated that it would be in the fitness of things if the two vacancies that have occurred in the Board of Trustees, consequent to the resignation of Shri P.T. Kuriakose and Dr. L.S. Kothari, were filled as early as possible. After some deliberations, it was decided that the Trustees might recommend suitable names to the Chairman within a month and the Chairman, in consultation with the Managing Trustee, might then induct two more Trustees in the Board of Trustees."

12. The plaintiffs, during the course of hearing, reiterated their submissions; besides, they relied on judgments reported as Swami Paramatmanand Saraswati & Anr. v. Ramji Tripathi and Another, (1974) 2 SCC 695 to say that in case the Court holds that their interest is private, they can maintain the suit. It is urged, principally, however, that as the parties are agreed that the trust is a public charitable one, covered by Section 92, the Court should see the larger aspect and decide, unconstrained by the adversarial submissions, whether the appointments sought to be justified by the first two defendants, can be affirmed, in the light of the trust deed. It is submitted that the Trust, as well as the Trustees, are circumscribed, in their powers by the Deed, which clearly postulates that appointment of new trustees, has to be by all the surviving and continuing trustees, acting unanimously, or by majority. Counsel urged that this leaves no room for delegation of such essential powers to one or the other trustee. It is argued, alternatively, that if CS (OS) 193/2010, I.A. Nos. 1407/2010 & 1408/2010 Page 7 for some reason, the Court were to uphold the resolution of 2007 whereby the second defendant could nominate two trustees, after due consultations with them (the plaintiffs), even then, the record, of the admitted minutes of meeting and correspondence do not indicate any such effective or meaningful consultation, but clearly point to a unilateral imposition of names. The plaintiffs urge that the suit is not as much a reflection on the suitability or eminence of the new trustees, as to the adherence to the terms of the Trust Deed, which forms the charter within the framework of which the parties had to conduct their affairs. The plaintiffs also relied on the express terms of Section 92 to say that once a Court finds that an appointment is irregular, then, regardless of other details, the declaration about the effect of such consequence has to follow, having regard to the wider interests of the public in the affairs of the trust, and its efficient and proper functioning.

CS (OS) 193/2010, I.A. Nos. 1407/2010 & 1408/2010 Page 8

14. It is stated that in the light of the above practice when two Trustees had resigned and the matter came up for filling those vacancies, the Board of Trustees deliberated upon the issues on 23.10.2007 and resolved as they did that each one of them might recommend suitable names to the Chairman who would in consultation with the Managing Trustee induct two more Trustees. The written statement relies upon the Board of Trustees' meeting dated 11.10.2008 and states that the Minutes clearly record approval to the previous decision recorded on 23.10.2007, whereby the Chairman was given the discretion after due consultation with the Managing Trustee to nominate names for the two vacancies. The written statement goes on to mention about a letter dated 29.11.2008 by the third defendant and subsequently letter dated 04.11.2008 by the second plaintiff suggesting names of certain persons to fill the vacancies. It is submitted that in these circumstances, second defendant recommended the names of Shri Bhishma Narain Singh and Shri R.N. Anil. The first two defendants allude to a letter dated 28.01.2009 written by the first plaintiff proposing the name of Shri K.S. Vaidyanathan as one of the Board Trustees and similarly another letter by the third plaintiff to the Director of the Kendra on 30.01.2009. The latter had suggested the name of Mr. Kushagra Nain Bajaj, the first plaintiff's son to fill one of the vacancies. Copies of all these letters have been filed by the defendants.