Bombay High Court
The Bombay Presidency Golf Club ... vs Sucheta Desmond Rodrigues on 11 June, 2025
2025:BHC-AS:23381
1 Judgement-FA 1567-24@ FA FAST 22218-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1567 OF 2024
IN
SUIT NO.3262 OF 2019
WITH
INTERIM APPLICATION NO.12339 OF 2024
IN
FIRST APPEAL NO.1567 OF 2024
Sucheta Desmond Rodrigues
Age 53 years, Bungalow Amaay, Union Park,
Chembur (East), Mumbai - 400055. ... Appellant
(Orig. Plaintiff)
V/s.
Digitally
signed by
MUGDHA
MUGDHA
MANOJ
MANOJ
PARANJAPE
1. The Bombay Presidency Golf Club Limited
PARANJAPE Date:
2025.06.13
19:57:34 Having address at Dr. Choitharam Gidwani Road,
+0530
Chembur, Mumbai 400074.
2. Brijender Singh
President, The Bombay Presidency Golf Club
Limited, Having address at Dr. Choitharam
Gidwani Road, Chembur, Mumbai 400074.
3. Col. R.S. Sekhon (Retd.)
Secretary, The Bombay Presidency Golf Club
Limited, Having address at Dr. Choitharam
Gidwani Road, Chembur, Mumbai 400074. ... Respondents
(Orig. Defendants)
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WITH
FIRST APPEAL (ST) NO.22218 OF 2024
1. The Bombay Presidency Golf Club Limited
Having address at Dr. Choitharam Gidwani Road,
Chembur, Mumbai 400074.
2. Brijender Singh
President, The Bombay Presidency Golf Club
Limited, Having address at Dr. Choitharam
Gidwani Road, Chembur, Mumbai 400074.
3. Col. R.S. Sekhon (Retd.)
Secretary & CEO, The Bombay Presidency Golf Club
Limited, Having address at Dr. Choitharam
Gidwani Road, Chembur, Mumbai 400074. ... Appellants
(Orig. Defendant Nos.1 to 3)
V/s.
Sucheta Desmond Rodrigues
Age 47 years, Bungalow Amaaya, Union Park,
Chembur (East), Mumbai - 400055. ... Respondent
(Orig. Plaintiff)
-----
Mr. Rohaan Cama a/w Mr. Kyrus Modi i/by Ms. Sapana Rachure for the
Appellant.
Mr. Gaurav Sharma a/w Mr. Pranav Chavan i/by Mahesh Menon & Company
for the Respondents.
-----
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CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 08TH MAY 2025
PRONOUNCED ON : 11TH JUNE 2025
JUDGEMENT :
1. This Judgement will dispose of the following two First Appeals:
(i) First Appeal No. 1567 of 2024 in Suit No. 3262 of 2019;
and
(ii) First Appeal (L) No. 22281 of 2024 in Suit No. 3262 of
2019.
2. Sucheta Desmond Rodrigues is the Plaintiff in the captioned Suit
and also the Appellant ("Appellant") in First Appeal No.1567 of 2024 in Suit No.
3262 of 2019, in which Respondent No.1 is the Bombay Presidency Golf Club
Limited ("the Club"), Respondent No.2 is the President of the Club and
Respondent No.3 is the Secretary & Chief Executive Officer (CEO) of the Club.
Whereas the Club, Respondent No.2, and Respondent No.3 are the Appellants in
First Appeal (L) No.22218 of 2024, and Sucheta Desmond Rodrigues is the
Respondent. While this Judgement will dispose of both the captioned First
Appeals, for the sake of convenience, reference to the parties shall be as they are
arrayed in First Appeal No.1567 of 2024.
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3. The Appellant had filed the captioned Suit inter alia seeking (i) a
declaration that she is entitled to make the balance payment of the Entrance
fees towards the membership of the Club in installments; (ii) specific
performance of the contract entered into between the Appellant and the
Respondents; and (iii) a permanent injunction restraining the Club from
unilaterally/arbitrarily terminating the Appellant's membership.
4. The Trial Court, however, vide a judgement dated 5th July 2024
("the Impugned Judgement"), dismissed the Suit and inter alia ordered the Club
to refund the amount paid by the Appellant towards entrance fees.
5. It is thus that both the captioned First Appeals have been filed. The
Appellant is aggrieved by the dismissal of the Suit, whereas the Club and
Respondent Nos.2 and 3 are aggrieved by the portion of the Impugned
Judgement whereby the Trial Court directed the Club to refund the amount
paid by the Appellant towards entrance fees.
6. Before adverting to the rival contentions, it is necessary for
context to set out the following facts:
i. The Appellant had, in the year 2017, applied for a short-term
membership of the Club for herself and four children, two of
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whom were her biological children and the other two
dependent children, namely Amoorth Shetty and Aadhyaa
Shetty, who were the Appellant's wards, being the children of
the Appellant's predeceased sister, one Sheetal Dayanand Shetty.
ii. The Appellant thereafter applied for permanent membership
(category B/Life) for herself and mentioned the names of all four
children under "Family Details" in the membership form. The
Appellant mentioned the names Amoorth and Aadhyaa Shetty as
"son" and "daughter" and annexed the following documents,
viz., (a) the Appellant's passport, (b) the birth certificates of all
four children, (c) the death certificate of the Appellant's sister,
i.e., Sheetal Dayanand Shetty, and (d) the Order dated 7 th April
2017 passed in Guardian Petition No.3 of 2016, i.e., the
Guardianship Petition filed by the Appellant and her brother for
being appointed as the legal guardians of Amoorth and Aadhyaa
Shetty.
iii. The Appellant then, by her email dated 13 th April 2018,
informed the Club that the Appellant had made payment of an
amount of Rs.6,18,760/- towards her short-term membership of
the Club in December 2017 and requested the Club to allow the
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Appellant to make payment of the balance membership fees in
installments as follows:
(i) payment of Rs.10,00,000/- on 2 nd May 2018 (for which a
post-dated cheque was already deposited with the Club's
accounts department that afternoon); (ii) payment of
Rs.10,00,000/- on 1st December 2018 (in respect of which also
she had already deposited a post-dated cheque with the
accounts department of the Club); and (iii) in respect of the
remaining amount, she requested time until March 2020.
iv. The Club then, vide an email dated 3 rd May 2018, enclosing a
letter dated 2nd May 2018, informed the Appellant and her
proposer that the ballot meeting was scheduled for the 24 th May
2018, and noted that a sum of Rs.10,00,000/- had been paid in
advance and that the balance amount payable ' in installments'
was Rs.49,00,000/-.
v. On 4th May 2018, the Appellant, by her email, brought to the
attention of the Club that the balance amount payable was
Rs.42,81,240/- and not Rs.49,00,000/- as recorded by the Club
in its letter dated 2nd May 2018, enclosed with the email of 3 rd
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May 2018 by pointing out that the Appellant had till date made
payment of an amount of Rs.16,18,760/- and accordingly
sought the Club's confirmation.
vi. The Club then, vide an email dated 18 th May 2018, enclosed
certain EMI options, which stipulated that the payments could
be made in installments between 1 to 4 years and also indicated
that interest would be levied thereon at the rate of 15% per
annum.
vii. On 25th May 2018, the Appellant post balloting was conferred
with provisional membership, and the Appellant along with the
four children, was allowed to use the Club's facilities. By a letter
dated 27th May 2018, the Appellant was informed that
confirmation of her permanent membership would be notified
subject to the completion of necessary formalities. The Appellant
was issued a provisional membership card for herself as well as
for each of the four children.
viii. On 17th August 2018 the Club's accounts department addressed
an email to the Appellant informing the Appellant that the
outstanding amount towards membership fees as of 16 th August
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2018 was Rs.46,10,599/-, of which an amount of Rs.1,53,849/-
was interest.
ix. The Club then, on 14th September 2018, addressed a letter to the
Appellant cancelling the membership of Amoorth and Aadhyaa,
inter alia, on the ground that the Club, while processing
admission applications, had missed the distinction between
adoption and guardianship and had therefore inadvertently
admitted Amoorth and Aadhyaa and issued them ID cards.
x. The Appellant thus filed Suit No.3054 of 2018 ("the First Suit")
inter alia seeking a declaration that Amoorth and Aadhya were
entitled to enjoy the rights and privileges of the Appellant's
membership of the Club. The Appellant thereafter, on 13 th
November 2018, took out Notice of Motion No.4310 of 2018 in
the First Suit seeking to restrain the Club from preventing the
children, Amoorth and Aadhya, from entering and participating
in the Club events.
xi. On 1st December 2018, the Appellant remitted a further amount
of Rs.10,00,000/- to the Club toward the Appellant's
membership fees, which amount was accepted by the Club
unreservedly.
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xii. The Appellant then addressed emails dated 28 th January 2019
and 3rd April 2019 to the Club, inter alia, requesting the Club
for a meeting to enable the Appellant to hand over the balance
dues towards her membership fees, to which the Club did not
respond.
xiii. On 6th March 2019, the Trial Court granted an injunction in
terms of prayer clause (a) of Notice of Motion No.4310 of 2018
in the First Suit, restraining the Club from preventing entry of
the Appellant and her children, including Amoorth and Aadhya,
into the Club and also prima facie observed that the byelaws did
not differentiate between biological children, adopted children
and wards.
xiv. The Club then, on 21st April 2019, sent the Appellant an email
enclosing a letter dated 18 th April 2019 that stated there was an
outstanding amount of Rs.40,08,153/- payable by the Appellant
towards her permanent membership and called upon the
Appellant to make immediate payment of the same.
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xv. On 23rd April 2019, the Appellant met with one Manish
Kulkarni, an accounts executive of the Club, to seek a
clarification of the balance amount payable. In an email sent on
the same date, the Appellant informed the Club that the
Appellant had made a payment exceeding Rs.26,00,000/- out of
a total of Rs.59,00,000/-. The Appellant also reiterated that
while the Club offered every member a three-year installment
plan to pay, the Appellant had paid more than 50% of the
membership fees in less than one year and therefore requested
that the Club verify the accounts and resolve the matter. The
Appellant also offered to visit the accounts office of the Club to
help resolve the matter expeditiously. The Club, however, did
not respond to this letter.
xvi. On 23rd July 2019, the Club addressed a letter to the Appellant
demanding payment of Rs.41,56,526/- for the outstanding
membership fees and applicable interest by 31 st July 2019,
failing which the Appellant's provisional membership would be
terminated and all partial payments made by the Appellant
towards the membership fees would be forfeited. The Club
further recorded that the Appellant was also in breach of Article
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101 of the Articles of Association of the Club for non-submission
of three golf score cards.
xvii. The Appellant, by her letter dated 25 th July 2019, responded to
the Club's letter dated 23 rd July 2019 inter alia calling upon the
Club to withdraw the said letter since it was a clear breach of
the Order dated 6th March 2019, which restrained the
Respondent from taking coercive action against the Appellant
and her four children, and the contentions made in the said
letter are vindictive and false.
xviii. The Club then, by its letter dated 28 th July 2019, while
reiterating the stand taken in the letter dated 23 rd July 2019,
further asserted for the first time that the Club had never
accepted the Appellant's proposal to pay the membership fees in
installments and "never offered and/or extended an EMI or
installment facility". The Club thus demanded that the Appellant
make payment of the sum of Rs.41,56,526/- within three days,
i.e., 1st August 2019.
1 10. a) The application of every candidate for election as a Permanent Member shall be submitted to a meeting of the Committee
and if approved by the Committee, such candidate shall without ballot be declared to be elected as a Temporary Member for a
period of not more than six months in the first instance, during which time the candidate will be entitled to all the privileges and
amenities of a Temporary Member and shall be required to submit not less than three Score Cards in respect of rounds of Golf
played by him on a Club Course...
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xix. The Appellant, by her letter dated 30 th July 2019, denied the
Club's allegations in the letter dated 28 th July and inter alia
pointed out that the matter was subjudice and that the City Civil
Court had passed an order in terms of prayer clause (a) of
Notice of Motion No.4310 of 2018 which required the Club to
essentially maintain status quo in respect of the membership of
the Appellant and her children, including Amoorth and
Aadhyaa.
xx. The Appellant then, on 20th August, 2019, filed the captioned
Suit ("the Second Suit"), and on 9th September 2019, the City
Civil Court, in Notice of Motion No.3216 of 2019 in the Second
Suit, passed an order in terms of prayer clause (b) of the Notice
of Motion subject to the Appellant making payment of the entire
outstanding amount towards membership fees, inclusive of
interest, within a period of eight weeks from the date of the said
order.
xxi. It is not in dispute that the Appellant made payment of the said
amount within the prescribed time.
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xxii. On 20th October 2023, this Court dismissed a challenge to the
Interim Order by expediting the hearing of the Suit.
xxiii. As already noted above, the Suit was disposed of by the
Impugned Judgement, which inter alia held as follows:
"25. ... It is noteworthy to see that the plaintiff did not approach the
defendant club and requested to accept balance entrance fee by way of
installments / EMI, nor committee of defendant club has determined the
method for making balance amount towards entrance fees in terms of
rule 17 of article of association. The plaintiff has committed default in
making payment towards entrance fees. Rule 10 articles of association
provides that temporary member shall be require to submit not less than
three score cards in respect of ground of Golf played by him on a club
course. According to plaintiff she was selected by ballot committee
making her eligible for membership and therefore action of defendant
club accepting plaintiff's membership amounts to waiver of condition
regarding submitting of three score cards in respect of rounds of Golf
played on club course. Thus, it is admitted fact on record that plaintiff
has not complied mandatory provision/condition regarding submitting
of three score cards in respect of rounds of Golf played on club course.
The witness examined on behalf of defendant club has categorically
stated during oral evidence regarding non-compliance of said
mandatory provision / condition. The plaintiff has not brought on record
the evidence to substantiate her claim that the said condition was waived
by the defendant club. The plaintiff has not produced evidence in
compliance of condition laid down in rule 10 of articles of association.
26. From the correspondence on record, it is seen that the plaintiff has
given opportunity for making the payment. The plaintiff herself has
made correspondence and assured the defendant club to make payment.
The defendant club gave opportunity for making payment of outstanding
amount and thereafter issued letter of termination of membership of
plaintiff. Hence the allegations of plaintiff that letter of termination is in
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violation of principles of natural justice cannot be accepted. The plaintiff
has failed to establish that she has paid amount towards entrance fees in
accordance with the provisions of bye-laws and articles of association of
defendant club. In this back drop the case law cited supra on behalf of
plaintiff will not come to the help of plaintiff. The facts of the present
case and the facts in the case law cited supra are not identical.
27. Admittedly, the plaintiff has paid entire amount under the order
of court towards entrance fees. However, it is also admitted fact on
record that amount towards entrance fee was due and payable prior to
letter dated 23/06/2019 and 28/07/2019. Admittedly the balance
amount of Rs. 41,56,526/- was due and payable towards entrance fee. In
this back drop the allegations of plaintiff that defendant club has
committed breach of agreement cannot be accepted. The plaintiff has
failed to comply mandatory provisions of articles of association and bye-
laws of defendant club. The plaintiff has failed to bring on record
reliable and convincing evidence to establish her entitlement for making
payment towards entrance fee by way of installment / EMI. The plaintiff
has paid entire amount towards entrance fee under the Order of Court.
In such circumstances, the defendant club cannot be permitted to forfeit
the said amount. The plaintiff is entitled for refund of amount paid
towards entrance fees. In such circumstances plaintiff is not entitled to
get relief of declaration and injunction. In the result, issue no. 3 to 6 are
answered in the negative."
Submissions on behalf of the Appellant
7. Mr. Cama, Learned Counsel appearing on behalf of the Appellant
at the outset, submitted that the termination of the Appellant's membership by
the Club was entirely malafide and only a counterblast since the Appellant had
obtained an ad interim order against the Club in the First Suit.
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8. He then submitted that both grounds on which the Appellant's
membership had been terminated, namely that the Appellant had failed to (i)
make payment of the membership fees and (ii) submit three golf scorecards,
which were both ex facie untenable and entirely lacking in merit.
9. Mr Cama, in dealing with the first ground for termination, i.e.,
that the Appellant had failed to make payment of the membership fees, pointed
out that the Club had expressly accepted the Appellant's request to make
payment of the membership fees in installments, despite which the Club had in
the termination letter asserted to the contrary and terminated the Appellant's
membership. In support of his contention that the Club had agreed to accept
the Appellant's membership fees in installments, he adverted to the following:
i. The Appellant's email dated 13 th April 2018, by which the
Appellant had, (a) for the reasons more particularly set out
therein, had requested that the Appellant be permitted to make
payment of the membership fees "in installments" (b) recorded
that the first installment of Rs.6,18,750/- had already been paid
in December 2017; (c) offered to make payment of
Rs.10,00,000/- on 2nd May 2018 and a further sum of
Rs.10,00,000/- on 1st December 2018 (enclosing two cheques
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for the said amounts); (d) sought time until March 2020 to
make the balance payment; and (e) noted that there would be an
interest component which the Appellant was willing to bear and
even offered to give post-dated cheques for the same.
ii. The Club's letter dated 2nd May 2018, enclosed with the email
dated 3rd May 2018, recorded (a) that a sum of Rs.10,00,000/-
had already been paid in advance by the Appellant and (b)
informed the Appellant that the balance amount payable ' in
installments' was Rs.49,00,000/-. Mr. Cama took pains to point
out that this letter, which had infact been signed by Respondent
No.3, who was also a part of the Managing Committee,
expressly recorded that the balance amount of Rs.49,00,000/-
was payable in installments.
iii. The email dated 18th May 2018 addressed by the Club to the
Appellant enclosing the EMI options clearly stated that the
payments could be made in installments between 1 to 4 years,
and that interest at 15% per annum would be levied thereon.
Mr. Cama submitted that while it was never the case of the
Appellant that she had made monthly installments, this email
demonstrated the fact that the Club did not treat the balance
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amount payable by the Appellant as being payable forthwith
and was entirely conscious of and amenable to the fact that the
payments were being made by the Appellant in installments
along with interest.
iv. The email dated 17th August 2018 by which the Accounts
Department of the Club informed the Appellant that the
outstanding amount upto 16th August 2018 was Rs.46,10,599/-,
out of which the sum of Rs.1,53,849/- had been computed as
interest.
v. That the Appellant, on 1 st December 2018, made payment of a
sum of Rs.10,00,000/- towards membership fees, which was
accepted by the Club without demur and/or protest.
10. Basis the above, Mr Cama submitted that it was clear and beyond
the pale of doubt that (a) the Appellant had been permitted to make payment of
the membership fees in lump sum installments (b) the Appellant had infact
made such payments amounting to Rs.26,18,760/- (c) the Club had accepted
the same without any demur or protest; (d) the Club had even levied interest
upon the balance amount; and (e) the Club had, by its conduct, made clear that
Article 172 of its AOA was not insisted upon.
2 17.a) Upon election as a Permanent Member, each person shall pay such Entrance Fees as may be prescribed from time to
time by the Committee in respect of the class of Membership to which he has been admitted. No newly elected member shall
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11. Mr. Cama then submitted that the Club had, for the first time after
more than a year of accepting the membership fees in installments, done a
complete volte face by calling upon the Appellant to make payment of the
outstanding sum of Rs.41,56,526/- towards the Appellant's membership fees
immediately. He submitted that it was clear that this was done only because the
Appellant had, on 6th March 2019, in the First Suit, obtained an interim order
against the Club. He submitted that the Club was well aware of the reasons why
the Appellant had requested the Club, by its letter dated 13 th April 2018, to
allow the Appellant to make payment of the membership fees in installments
and was conscious of the fact that the Appellant would be gravely prejudiced if
suddenly called upon to make the balance payment in one shot.
12. Mr. Cama then submitted that, in the above factual matrix, it was
not open for the Club to contend that the Appellant had not been permitted to
make payment of the membership fees in installments. He thus submitted that
the finding in the Impugned Judgement, which held that under Article 17 of the
exercise any of the privileges of permanent Membership until he has paid the full Entrance Fee and subscriptions due and
payable in respect of the class to which he is admitted unless the Committee authorises payment thereof in installments as
hereinafter provided.
b) The Committee shall have power to determine that the Entrance Fee or further Entrance Fee at any time payable may be
paid in installments and to prescribe conditions subject to which the same shall be so payable in installments. In any such
case a newly elected Member shall be entitled to all privileges of Membership but shall not be entitled to attend meetings of
the Club or to vote thereat until he has paid the full Entrance Fees due and payable by him.
c) Unless otherwise determined by the Committee, if payment of an original Entrance Fee is not made within one calendar
month from the date of election. If the Member is resident in India, or three months if not so resident, or in any case where
the Entrance Fee is payable in installments. If any installment is not paid within one calendar month of the date appointed
for payment, the election of that Member shall be void.
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Club's AOA the grant of an installment facility lay entirely within the discretion
of the Managing Committee and that there was nothing on record to show that
such permission was granted, thereby rendering the Appellant in default, was
wholly untenable and thus plainly erroneous and perverse.
13. He then submitted that the Trial Court had failed to properly
analyse and appreciate the material on record, which unequivocally
demonstrated that the Club had, in fact, not only permitted the Appellant, by its
conduct, to make payment of membership fees in installments but had also
accepted the same without any demur or protest after levying interest on the
outstanding amount. Mr. Cama thus contended that the findings of the Trial
Court in paragraphs 25 and 27 of the Impugned Judgement were perverse,
contrary to the record, and thus liable to be quashed and set aside.
14. Mr. Cama then submitted that even a plain reading of Article 17
of the AOA made it clear that the Club was expressly empowered to permit
payment in installments and to condone any delay in payment. In support of his
contention, he placed reliance upon the last line of Article 17(a), which
explicitly contemplated the authorisation of installment payments and pointed
out Article 17(c), which provided that payments shall be made within a
stipulated timeline "unless otherwise determined by the Committee". He
reiterated that the correspondence on record established that the Appellant was
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informed by both the CEO and the Secretary of the Club (Respondent No. 3),
vide the letter dated 2nd May 2018 (enclosed with the email dated 3 rd May
2018), that the balance amount of Rs.49,00,000/- could be paid 'in
installments' and that the Appellant had accordingly done so for a period of
over one year until the Club suddenly did a volte face by addressing the letter
dated 18th April, 2019 (enclosed with the email dated 21 st April 2019). He also
reiterated that the Club had accepted these installments without any demur or
protest and that in these circumstances, it was not open for the Club to resile
from its earlier representation or to contend that the Appellant was not granted
any facility/accommodation to make payment of her membership fees in
installments.
15. Mr. Cama then, without prejudice to the above, submitted that the
question of whether the installment facility was formally authorised by the
General Committee or not was entirely a matter of internal or indoor
management. He submitted that the Appellant, as an external party, could not
reasonably be expected to know whether or not such authorisation was
formally recorded in the Ccmmittee's resolutions. He submitted that the
Appellant could only go by the representations made to her by the responsible
officers of the Club, which in this case were the CEO and Secretary, who clearly
conveyed that she could make the balance payment in installments. He
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submitted that in such a situation, the principle of indoor management would
squarely apply, and the Club was estopped from asserting to the contrary.
16. Mr. Cama then placed reliance upon the judgment of Hon'ble
Supreme Court in the cases of B. L. Sreedhar and others vs. K.M. Munireddy
(Dead) and others 3 and Tata Iron and Steel Co. Ltd. vs. Union of India 4 in
support of his contention that when a party makes a representation by his act
or omission causing the opposite party to act upon such representation and
alter its position , then neither the party making the representation nor the
representative of such party would be allowed in any suit or proceeding to deny
the truth of such representation.
17. He further submitted that Section 115 of the Indian Evidence Act,
1872, clearly enshrines the principle of estoppel by conduct, which prohibits a
party from resiling from a representation made to another, where the latter has
relied upon it and altered their position to their detriment. In the present case,
he submitted that the Club had, through its duly authorised and/or responsible
officers, represented to the Appellant that the balance amount of
Rs.49,00,000/- was payable 'in installments'. He then submitted that not only
had the Appellant acted upon such representation, but so had the Club by
3 (2003) 2 SCC 355
4 (2001) 2 SCC 41
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accepting the amounts paid by the Appellant without demur or protest. He
further pointed out that the Club had levied interest on the deferred payments,
which not only acknowledged the fact that the Appellant had been permitted to
pay in installments but also clearly demonstrated that the Club did not consider
the Appellant to be in breach of Article 17 by reason of making payment in
tranches beyond the timeline stipulated therein.
18. Mr. Cama thus submitted that the Club, by its unequivocal
conduct, had led the Appellant to believe that the membership fee could be
paid in installments and, having accepted those payments without demur or
protest and even imposed interest thereon, was now estopped from taking a
stand contrary thereto. He thus submitted that the conduct of the Club squarely
attracts the doctrine of estoppel under Section 115, and the Club cannot now
be permitted to take a position contrary to the one it earlier represented and
acted upon.
19. Mr. Cama also submitted that the Club's reliance on the term
"EMI" was entirely misplaced and really a red herring. He submitted that the
real question was not whether the payment mode conformed to a particular
label such as "EMI", but whether the Appellant was, in fact, permitted to pay
the membership fee in a mode other than a lumpsum payment. He submitted
that the City Court had this aspect gravely erred in holding that " ..the plaintiff
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did not approach the defendant club and requested to accept balance of
entrance fee by way of instalment/EMI, nor committee of defendant club has
determined the method for making balance amount towards entrance fees in
terms of rule 17 of articles of association." . He submitted that such a finding in
the facts of the present case was plainly perverse and contrary to the record
since the Club had infact accepted the installments from the Appellant and
even levied interest on the outstanding and thus left no room for doubt that
such permission was granted.
20. Mr. Cama then submitted that the second ground of termination
cited by the Club in its termination notice, i.e., that the Appellant had failed to
comply with Article 10 of the Articles of Association by not submitting three
golf scorecards, was equally misconceived. He submitted that the Trial Court
erred in upholding this contention, especially since the allegation that the
Appellant failed to submit three golf scorecards was never raised at any point
from the date of the Appellant's initial application and grant of temporary
membership on 22nd December 2017 up to the issuance of the termination
letter on 23rd July 2019. He also pointed out that the Appellant was never even
given an opportunity to show cause as to why this was a plainly misconceived
and untenable ground for terminating the Appellants membership.
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21. He then submitted that the contention of failure to submit three
golf cards was raised for the first time only in the notice dated 23 rd July 2019,
i.e., the Termination Notice), and was entirely untenable and malafide for the
following reasons:
(i) That the Appellant had in her application form dated 21 st March
2018 expressly indicated that she was not a golfer by clearly
circling "No" against "Golfer: Yes/No" on the Application form.
Hence, the Appellant having declared herself as a non-golfer,
the very requirement of submitting any golf scorecards would
not arise.
(ii) The Club had, with the full knowledge that the Appellant was a
non-golfer, nonetheless processed her application for
membership and conducted a ballot and proceeded to grant the
Appellant provisional membership, thereby signifying waiver or
inapplicability of the scorecard requirement in her case.
(iii) The requirement under Article 10 to submit three golf
scorecards was applicable only at the stage of considering the
Application of a temporary member for permanent membership
and not when considering a short-term member seeking
conversion to permanent member. Also, this requirement is to
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be fulfilled prior to balloting, and once a member is balloted and
elected, as in this case, the condition, even if applicable, would
cease to apply.
(iv) In the present case, it is admitted and evident that the Appellant
was duly balloted on 24 th May 2018, and as reflected in the
Club's email dated 25th May 2018 and the accompanying letter,
she was informed that she had been accepted as a provisional
member.
(v) Provisional membership, in this context, indicated permanent
membership, subject only to completion of certain formalities. It
was not akin to temporary membership and therefore did not
trigger the requirement for submission of golf scorecards under
Article 10.
(vi) A plain reading of Article 10 supports this interpretation. The
phrase "shall without ballot..." in the first unnumbered
paragraph of Article 10(a) clearly shows that the scorecard
requirement applies only where a candidate is to be elected
without a ballot. The third unnumbered paragraph of Article
10(a) then provides that if a candidate has submitted scorecards
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or has met members and been balloted, the Committee may
proceed to elect such a candidate as a permanent member. In
the present case, the Appellant was duly balloted and elected,
rendering the scorecard requirement irrelevant.
(vii) The fourth unnumbered paragraph of Article 10(a) confers
upon the Committee the discretion to waive these requirements.
Thus, even assuming that submission of scorecards was
required, the Committee's conduct, i.e., processing the
Appellants membership, conducting the ballot, and confirming
the Appellant as a provisional member, constitutes an implied
waiver under Article 10, which cannot be reversed
retrospectively.
Basis the above, Mr. Cama submitted that the Club's reliance on
the non-submission of golf scorecards was not only unfounded in fact and law,
but in fact perverse in light of the Club's own conduct and express
communications.
22. He then further submitted that the Trial Court's reliance on this
issue in paragraph 25 of the Impugned Judgement was wholly untenable,
especially in holding that the Appellant's argument of waiver amounted to an
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admission that the Appellant was required to submit three golf scorecards. He
submitted that this reasoning was legally flawed, as a legal submission of
waiver, even if made arguendo, cannot be construed as an admission of
applicability or default.
23. Basis the above, he submitted that the Trial Court had erred both
in law and on facts, and thus the impugned judgement must therefore be set
aside.
Submissions on behalf of the Respondents
24. Mr. Sharma, Learned Counsel appearing on behalf of the Club at
the outset, submitted that the Impugned Judgement was perfectly just and legal
save and except the direction contained in paragraph 27 of the judgement
which required the Club to refund the fees paid by the Appellant. He submitted
that the Club had filed an Appeal to the limited extent of impugning this
direction.
25. Mr. Sharma then submitted that membership of the Club, whether
short-term, provisional, or permanent, was a contractual relationship which
was governed strictly by the Articles of Association, the Bye-Laws of the Club,
and the relevant notifications/circulars issued by the Club from time to time.
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26. He then pointed out that the Trial Court had, in paragraph 25 of
the Impugned Judgement, correctly interpreted Article 17 of the Articles of
Association of the Club, which categorically stipulated the requirement of full
payment of entrance fees at the stage of balloting. He submitted that the Trial
Court had, after a careful appreciation of the evidence on record, arrived at a
finding that the Appellant had failed to fulfill this condition.
27. Mr. Sharma then submitted that the Appellant's contention that
the Club had extended an EMI or installment facility to the Appellant for
making payment of the membership fees was factually and legally
unsustainable. In support of his contention, he pointed out that (i) the Appellant
had never sought any EMI Facility/Installment Facility and was thus never
assigned the same; (ii) the Managing Committee being the competent authority
to permit any EMI/installment facility had not passed any resolution authorising
such EMI/installment facility to the Appellant; (iii) the Club had merely shared
a chart of EMI options available by email dated 18.05.2018; however, the
Appellant had never opted for payments by EMI and/or installment facility as
offered by the Club; (iv) therefore was no contract between the Parties by which
the Appellant was permitted to make payment of the membership fees by way
of EMI and/or installment; and (v) thus, the Appellant was bound by Article 17
of the AOA and was required to make payment in terms thereof, i.e., within one
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month from the date of election, if resident in India and three months if not
resident in India. He submitted that since the Appellant had admittedly not done
so, the Termination Notice was entirely valid and justified, and the Trial Court
was right in dismissing the Suit.
28. Mr. Sharma then submitted that given the fact that the Appellant
had never applied for an EMI/installment option nor had the Club ever granted
an EMI/installment option to the Appellant, the Appellant was contractually
bound to effect the entire membership fee in one tranche. He then pointed out
that the Appellant was also intimated on several occasions of the balance
amount payable towards her membership, despite which she did not make
payment of the same. He submitted that despite this leniency on the part of the
Club, which was taken for granted by the Appellant, the Club was compelled to
issue the Termination Notice to the Appellant.
29. Mr. Sharma then submitted that the Appellant, having failed to
demonstrate that any EMI/Installment Facility was extended by the Club, the
Appellant has enjoyed the membership benefits by delaying payment of the
membership fee under one pretext or another and has intentionally not
exercised the EMI facility that was offered by the Club. He also then pointed out
that the conduct of the Appellant was malafide since the Appellant had sought
to make payment in installments by contending that "with 4 kids studying
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privately in a high end school, it gets rather difficult to set aside a huge chunk
of money for any other purpose other than their academics and healthcare" ,
however, the Appellant had in her cross examination made a statement that her
business had a turnover of approximately 5 crores in the year 2017. He
submitted that clearly the Appellant was not unable to make payment of the
membership fee but had chosen not to do so. He further pointed out that after
the interim order dated 9 th September 2019 in the Second Suit was passed, the
Appellant had infact made payment of the entire balance amount towards
outstanding membership fees, further belying the Appellants contention that
she was under any financial difficulty from doing so as demanded by the Club.
30. Mr. Sharma then pointed out that the termination even on the
grounds of non-submission of three golf scorecards was also just and valid. He
pointed out that the Appellant herself had accepted the fact that she had not
submitted three gold score cards, as required under Article 10 of the AOA of the
Club. He reiterated that the Appellant and the Club were bound by the AOA,
and given the fact that the Appellant was in admitted breach of Article 10 of the
AOA, termination on this ground was also entirely justified.
31. Basis the above, he submitted that there was no reason to interfere
in the Appeal, save and except to the extent of refunding the amount paid by
the Appellant towards the Membership fee, given the fact that the Appellant
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had enjoyed the benefits of the Club for a prolonged period, close to five years,
under the protection of an interim order passed in Notice of Motion No.3216 of
2019. He submitted that the amount was accepted by the BPGC only pursuant
to the interim orders passed, and it was thus clearly on a without prejudice
basis.
32. Mr. Sharma pointed out that since the Suit had been dismissed and
the termination of the Appellants membership had been upheld, the amounts
paid by the Appellant towards membership fees were liable to be forfeited
under the Club Rules. In such circumstances, he submitted that, having upheld
the termination, the Trial Court ought not to have directed a refund of the
deposited amount since such an observation runs contrary to the very
contractual regime which governed the parties' relationship, i.e., the AOA of the
Club. Basis this, he submitted that the Appeal No.1567 of 2024 be dismissed
and Appeal (L) No.2218 of 2024 be allowed.
33. After having heard Learned Counsel for the parties and having
gone through the Impugned Judgment and the evidence on record, I have no
hesitation in not only holding that the Club was wholly unjustified in
terminating the Appellant's provisional membership but also that the Club's
actions in doing so were accentuated by malafides. The reasons for saying so
are as follows :
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A. On the aspect of whether the Appellant was permitted to make
payment of her membership fee, there can, in my view, be no
doubt that the Appellant was permitted to do so. This is evident
from the following:
i. In the Appellants email dated 13 th April 2018, the Appellant
explicitly requested the Club's permission to make payment in
"lump sum tranches" since the income of the Appellant came
from the United Kingdom and the Appellant had an annual cap
on inward remittances and was also required to meet the other
expenses inter alia in respect of four school-going children.
ii. Additionally, the Appellant, by way of the email dated 13 th April
2018, also enclosed two cheques for Rs.10,00,000/- (ten lakhs)
each payable on 2nd May 2018 and 1st December 2018,
respectively, and for the balance requested time till March 2020,
acknowledging and accepting that the same would attract
interest and specifically agreed to bear such interest. Thus,
clearly this letter was a request/proposal made by the Appellant
to the Club for making deferred payment or payment in
installments.
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iii. The Club, by its letter dated 2nd May 2018, enclosed with the
email dated 3rd May 2018, specifically informed the Appellant
that the "balance amount payable 'in installments' was
Rs.49,00,000. It is the Appellant's express case that Respondent
No. 3 is a member of the Managing Committee of the Club. Thus,
in my view, there can be no manner of doubt that the Appellant
was informed by a member of the Managing Committee of the
Club that the balance amount towards membership fees was
payable in installments.
iv. Furthermore, and in my view crucially, neither the Club nor
Respondent No. 3 has denied this letter or the authority of
Respondent No. 3 to issue the same. Thus, the finding that the
Appellant "did not approach the defendant club and requested to
accept balance entrance fee by way of installments/EMI, nor
committee of defendant club has determined the method for
making of balance amount towards entrance fees in terms of
rule 17 of article of association. The plaintiff has committed
default in making payment towards entrance fees. ..." is plainly
perverse and contrary to the record.
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v. The Club, by its email of 17 th August 2018, not only
acknowledged the "outstanding amount" from the Appellant but
also calculated interest thereon. Thus, making it clear that the
Club had treated the amount due from the Appellant as a
deferred payment, i.e., as an installment and not as a lump sum,
which was due and payable forthwith.
vi. The Club, on 1st December 2018, which was well after the
Appellant was elected and balloted as a provisional member, also
unreservedly accepted the payment of Rs.10,00,000/-, paid by
the Appellant towards membership fees.
Thus, from the above, it is clear and beyond the pale of doubt
that the Club had, all along, accepted payments from the
Appellant towards the Appellants membership fees in lump sum
tranches without any demur or protest and had never raised any
dispute that the Appellant had not accepted the schedule of
installments or that the payment in installments was not
determined by the Managing Committee of the Club.
B. Additionally, the Trial Court has also completely overlooked the
following:
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i. That Article 17 of the AOA itself specifically provides that the
Committee is authorised to accept payment of membership fees
in installments.
ii. That the Club in view of its conduct as noted above was estopped
from contending that the Appellant was in breach of Article 17
of the AOA since the Club had in fact, not only accepted
payment from the Appellant in installments, but had also levied
interest on the balance amount. Thus, in my view, the Club
cannot now, after benefitting from these payments and levying
interest, deny the existence of such an arrangement. Hence, the
judgement of the Hon'ble Supreme Court in the case of B. L.
Sreedhar and Tata Iron and Steel Co. Ltd., upon which reliance
was placed by the Appellant, would squarely apply.
iii. Also, the Appellant, having received the letter dated 2 nd May
2018, enclosed with the email dated 3 rd May 2018 which was
signed by Respondent No.3, would be right in assuming that the
same was issued after all the necessary internal procedural
compliances of the Club's General Committee had been taken. As
already noted above, neither the Club nor Respondent No. 3 have
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in any manner denied the letter dated 2 nd May 2018 or the
authority of Respondent No.3 to issue the same. Thus, the
Appellant is entitled to rely upon the communication dated 2 nd
May 2018 as an acceptance of the Appellants request/proposal
as contained in the Appellant's email dated 13 th April 2018, and
hence any alleged absence of a formal resolution is an internal
matter of the Club and cannot prejudice the Appellant.
C. The reason why I find that the action of the Club is accentuated
by mala fides is because:
i. The Club, for the first time, after a year of addressing the letter
dated 2nd May, 2018, called upon the Appellant to make
payment of the entire outstanding amount towards membership
fees in one shot.
ii. Despite the fact that the Appellant had declared herself as a
"non-golfer" in her application form dated 21 st March 2018, the
Club, for the first time in the termination notice dated 23 rd July
2019, sought to terminate the Appellants membership on the
ground that the Appellant was in breach of Article 10 of the
articles of association by contending that the Appellant had
failed to submit three score cards.
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iii. The Appellant was never granted an opportunity to show cause
or deal with the contents of the termination notice.
D. Even on merit, Article 10 of the AOA would not be applicable in
the present case since Article 10 itself, inter alia, provides as
follows:
"the application of every candidate for election as a Permanent Member shall
be submitted to a meeting of the Committee and if approved by the
Committee, such candidate shall without ballot be declared to be elected as a
Temporary Member for a period of not more than six months in the first
instance, during which time the candidate will be entitled to all the
privileges and amenities of a Temporary Member and shall be required to
submit not less than three Score Cards in respect of rounds of Golf played by
him on a Club Course".
Hence, the phrase "shall without ballot" indicates that the
requirement to submit three scorecards is mainly intended for
evaluating applications, particularly in the election of a member
conducted without a ballot.
E. In the present case, the Appellant was duly balloted and elected
as a provisional member on 24 th May 2018, which was well
before this condition was imposed upon the Appellant. Thus,
even assuming there was any such requirement, the same was
clearly waived once the appellant was duly balloted and granted
provisional membership of the club. Hence, the condition for the
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submission of three golf scorecards, even if applicable, would
cease to apply after the Appellant was balloted and accepted as a
member of the Club.
F. Further, Article 10(a) itself grants the Committee discretion to
waive the requirements of submitting three score cards. The
Club's conduct in the present case, as noted above, of processing
the Appellants membership Application on the basis that she was
a non-golfer and granting the Appellant provisional
membership after ballot makes implicitly clear that the Club had
exercised this discretion and had waived this requirement.
G. The Trial Court's reasoning that the Appellant's argument of
waiver amounted to an admission that the Appellant was in
breach of the obligation to submit three golf scorecards is legally
flawed. It is well settled that a legal submission of waiver, even
if made arguendo, cannot be construed as an admission on the
part of the Appellant.
34. Hence, for the aforesaid reasons, Appeal No. 1567 of 2024 is
allowed, and Appeal (L) No. 22218 of 2024 is dismissed. All interlocutory
applications, if any, shall stand disposed of accordingly.
(ARIF S. DOCTOR, J.)
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