Calcutta High Court (Appellete Side)
Vijay Sports Club & Ors vs Vijay Sports Club & Anr on 12 February, 2021
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Subrata Talukdar
and
The Hon'ble Justice Hiranmay Bhattacharyya
FMA 569 of 2020
with
I.A. No. CAN 1 of 2020 (Old No. CAN 1328 of 2020)
CAN 2 of 2020 (Old No. CAN 2446 of 2020)
CAN 3 of 2020
(Assigned)
Vijay Sports Club & Ors.
Vs.
Vijay Sports Club & Anr.
For the Appellants : Mr. Aniruddha Chatterjee,
Mr. Debanik Banerjee,
Mr. Mainak Swarnokar.......... Advocates
For the Respondents : Mr. Joydeep Kar,
Mr. Sauradipta Banerjee,
Mr. Arnab Roy......for the Respondent no. 1
Mr. Samrat Sen, Sr. Advocate.
Mr. Kausik Mandal,
Mr. Anirban Pramanick
Mr. Sabyasachi Bhattacharjee ......
Advocates for the
Respondent No. 2/ CAB
Heard on : 10.02.2021
Judgment on : 12.02.2021
Hiranmay Bhattacharyya, J.:- The instant appeal is at the
instance of the defendant nos. 2 to 5 and is directed against the
later part of the order no. 91 dated January 22, 2020 passed by
the Learned Judge VIth Bench, City Civil Court at Calcutta in Title
Suit no. 1587 of 2018 whereby the application for temporary
injunction filed by the respondent no. 1 herein was allowed.
The respondent no. 1 filed a suit for declaration that the
plaintiff, a registered society is only entitled to represent Vijay
Sports Club (for short "the VSC") before various bodies including
the respondent no. 2 herein and for a further declaration that the
appellants being the trustees of the purported trust is not
entitled to use the name of VSC and to represent it before the
respondent no. 2 or other authorities and for permanent
injunction restraining the defendant no. 1/ respondent no. 2
herein their men and agents and/or permitting the said trust to
represent VSC and/or to allow them to participate in the cricket
tournaments to be organised by the defendant no 1. A decree for
permanent injunction restraining the defendant no. 1 from
recognising anybody as VSC other than the plaintiff for
participating in the cricket tournament was also prayed for.
The case made out by the respondent no. 1 in the plaint of
the said suit may be summed up as follows-
VSC was an unregistered association carrying on sport
activities like cricket, table tennis etc. and having a permanent
tent at Vivekananda Park Tent. The club had several members
and they formed an unregistered society for the purpose of
management of the sport activities of the club. The defendant no.
3 was the President of the VSC till 06.05.2018 and he used to
represent the VSC before the defendant no. 1 for all activities in
connection with different tournaments of cricket conducted by
the defendant no. 1. In order to continue with its objectives, the
members decided that the club should be registered under the
Societies Registration Act and accordingly the VSC was duly
registered under the said Act on June 18, 2018. In a meeting
held on 06.05.2018, a full-fledged committee was elected and
none of the defendant nos. 3, 4 and 5 have been elected as the
members of the said committee of VSC. VSC was affiliated to the
defendant no. 1 since the 1952 and is participating in cricket
tournaments organised by the defendant no. 1. The plaintiff came
to learn from the defendant no. 1 that the defendant no. 3, as
Settlor, formed a trust claiming to be the VSC and the defendant
nos. 3, 4 and 5 are claiming to be the trustees of the said trust.
The plaintiff issued a letter to the defendant no. 1 dated
24.11.2018 seeking permission to permit their cricket players to
participate in the second division tournament for the 2018-19
and onwards and thereafter the plaintiff requested the defendant
no. 1 to recognise the plaintiff as VSC being a registered society.
The plaintiff alleges that if the defendant no. 1 is permitted to
hire the players of the defendant no. 2 on their wrong
representation to be the plaintiff's club to play in the ensuing
tournaments organised by the defendant no. 1, in such cases the
players prepared by the plaintiff's club for participating in the
second division tournament organised by the defendant no. 1 will
be completely demoralised and the plaintiff was thus compelled
to file the instant suit.
In connection with the said suit the plaintiff/ respondent
no. 1 herein filed an application under Order 39 Rule 1 and 2
read with Section 151 of the Code of Civil Procedure praying for
an order of temporary injunction restraining the defendant no. 1
their men and agents and /or permitting the trust to represent
VSC and/or to allow them to participate in the cricket
tournaments to be organised by the defendant no. 1. A prayer for
temporary injunction was also made for restraining the defendant
no. 1 from recognising anybody as VSC other than plaintiff for
participating in the cricket tournaments for them.
The appellants herein contested the application for
temporary injunction by filing a written objection denying the
allegations contained in the injunction application. It was
specifically stated therein that the defendant no. 3 executed a
trust deed on May 22, 2018 and the plaintiff's society which
came into existence on June 18, 2018 has no legal status in the
eye of law.
The learned Trial Judge, by the order impugned, allowed the
application for temporary injunction on contest. The defendant
no. 1 and their men and agents were restrained from permitting
the defendant nos. 2 to 5 to represent the VSC and /or allow
them to participate in the cricket tournaments to be organised by
the defendant no. 1 for the ensuing cricket season 2018/ 2019
and onwards till the disposal of the suit.
Being aggrieved, the defendant nos. 2 to 5 have preferred
the instant appeal.
Mr. Chatterjee, learned advocate appearing for the
appellant contended that the plaint case proceeds on the basis
that the creation of trust by the defendant no. 3 is not valid and
as such the instant suit is not maintainable as there is no prayer
for cancellation of the deed of trust. He, further, contended that
the society was registered subsequent to the creation of trust and
as such the society has no existence in the eye of law. By drawing
the attention of this Court to the decision of the Electoral Officer
on the complaint dated September 13, 2019 made by the learned
advocate of the plaintiff/ respondent no. 1 herein, Mr. Chatterjee
contended that the Cricket Association of Bengal (for short "the
CAB) recognised the trust to be an affiliated member of the CAB
and gave liberty to the trust to offer a representative to attend the
annual general meeting as well as to sent up a candidate for the
ensuing elections. Thus, it is contention of Mr. Chatterjee that,
once the CAB has acknowledged the trust to represent the club,
it is axiomatic that the trust is in control over the management
and affairs of the club. He contended that before passing an
order of injunction under Order 39 Rule 1 and 2 of the Code, the
court has to be satisfied that the plaintiffs have made out a
strong prima facie case to go for trial; the balance of convenience
and inconvenience is wholly in favour of grant of injunction and
that the plaintiff will suffer irreparable loss and injury unless the
injunction sought for is granted. He contended that the learned
Trial Judge while deciding the application for temporary
injunction was of the view that once the objections raised by the
defendants by filing an application under Order 7 Rule 11 of the
Code cannot be sustained, the plaintiff's application for
temporary injunction should be automatically allowed. He further
contended that the impugned order is an unreasoned one and
the same is liable to be set aside on that ground alone. Mr.
Chatterjee relied upon a judgment of the Hon'ble Supreme Court
in the case of Premji Ratansey Shah and Ors. vs. Union of India
and Ors. reported at (1994) 5 SCC 547 in support of his
contention that a plaintiff has to satisfy the existence of his rights
in order to obtain an order of injunction.
Mr. Kar, learned Senior Advocate appearing for the
respondent no. 1 disputed the contentions of Mr. Chatterjee. He
submitted that initially the club was an unregistered society.
Subsequently, the members in the Annual General Meeting (for
short "the AGM) held on May 6, 2018 unanimously decided to
register the club under the provisions of the Societies
Registration Act. The members of the governing body of the club
were also elected in the AGM. On the basis of the said resolution
the society was registered and the society is in control over the
management and affairs of VSG. He contended that the trust was
created with a different objective and not for the purpose of
taking over the management of Vijay Sports Club. He submitted
that a trust cannot administer the registered society. He also
contended that immediately upon registration of the society the
properties of the club vested upon the society in terms of the
provisions of the statute. He placed reliance upon an order dated
February 3, 2020 of an Electoral Officer of the CAB and
submitted that Vijay Sports Club is entitled to be represented at
the Special General Meeting through Shri Anjan Ukil.
Mr. Sen, the learned senior advocate appearing for the
respondent no. 2 submitted that a list of 30 players was
submitted by the learned advocate for the respondent no. 1 and
he, upon taking instructions on the said list, was instructed to
submit that out of the 30 players mentioned in the list, 12
players have already sought for transfer to other clubs. He,
however, submitted that the respondent no. 2 has nothing to do
with the management and affairs of the Vijay Sports Club and
the respondent no. 2 shall recognise and/ or acknowledge the
body which is entitled to manage the affairs of the club as per the
decision of the Court.
We have heard the learned Advocates of the respective
parties and have perused the materials on record.
Two warring groups within a club are fighting against each
other claiming control over the management and affairs of the
club. Both the groups claim that they represent the VSC. The
respondent no. 1 claims that the club is being run by a registered
society, while the appellants claim that the trust is in control over
the management and affairs of the club. Such dispute had
brought the parties before the Trial Court and ultimately before
this Court.
Admittedly, VSC was an unregistered association. The
members of such association were managing the affairs of VSC
and the defendant no. 3/ appellant no. 2 herein was the
President of the VSC till May 6, 2018. It appears from the
minutes of the Annual General Meeting (for short "the AGM") held
on May 6, 2018 at the club tent, that the members of VSC
selected the members of its governing body. The members
attending the AGM subscribed their signatures to the minutes of
the said AGM. It further appears from the said minutes that the
house felt that it was necessary to register the club under the
provisions of the Societies Registration Act, 1961. After a
discussion over the subject matter in issue, the members
unanimously decide to go for registration. It appears from the e-
challan dated May 9, 2018 that the registration fees for new
society registration was deposited in the name of "Vijay Sports
Club". Subsequently, the society was registered on June 18, 2018
under the West Bengal Societies Registration Act, 1961. After the
payment of fees for registration of the society and during the
period when the matter relating to registration was pending
before the registration authorities under the West Bengal
Societies Registration Act, 1961 the appellant no. 2 herein, as
Settlor, executed a deed of declaration of trust on May 22, 2018
and the same was registered before the Additional Registrar of
Assurances-III on Kolkata on May 24, 2018. It appears from the
deed of declaration of trust that the appellant no. 2 claims to
have been running the club with the help of some associates who
are not the members of the club. It further appears therefrom
that the trustees were appointed for holding the trust property
being a sum of Rupees Ten Thousand only.
A "trust" is an obligation annexed to the ownership of
property and arising out of a confidence reposed in and accepted
by the owner, or declared and accepted by him, for the benefit of
another, or of another and the owner; the person who reposes or
declares the confidence is called the "author of the trust"; the
person who accepts the confidence is called the "trustee"; the
person for whose benefit the confidence is accepted is called the
"beneficiary"; the subject-matter of the trust is called "trust-
property" or "trust-money"; the "beneficial interest" or "interest"
of the beneficiary is his right against the trustee as owner of the
trust-property; and the instrument, if any, by which the trust is
declared is called the "instrument of trust".
Upon reading the declaration of trust as a whole, we are of
the prima facie view, that the trust was not created for the
purpose of taking over the unregistered association and for
controlling the management and the affairs of the club. The
subject matter of trust is the trust money of Rupees Ten
thousand only and the assets of the unregistered association
were not taken over by way of execution of the said instrument.
The defendant no. 3 as a President of an erstwhile
unregistered club also cannot claim the ownership of the club
and execute an instrument of trust for taking over the
management and control of VSC. On the other hand the
members of the erstwhile unregistered club decided to register
the club under the provisions of the West Bengal Societies
Registration Act, 1961. Such decision was taken unanimously by
the members present in the AGM even prior to the execution of
the Deed of trust. Steps were taken for registration of the society
and ultimately the same was registered. From the various
communications between the plaintiff/ respondent no. 1 herein
on one hand and various authorities namely the CAB and the
Kolkata Metropolitan Development Authority on the other hand,
it appears to us that the registered society was recognised to
represent the VSC before such authorities. Thus, we are of the
prima facie view that the respondent no. 1 herein/the plaintiff
have made out a strong prima facie case to go for trial.
The Cricket Association of Bengal being the respondent no.
2 herein who is the defendant no. 1 in the suit is not an authority
for deciding the dispute as to whether a registered society or a
trust is in control over the management of affairs of VSC and can
represent the VSC. The decision on the complaint dated
September 13, 2019 observing that the trust cannot be
disqualified from participating in the AGM or in the ensuing
elections of the CAB or the decision of the Electoral Officer dated
03.02.2020 holding that VSC is entitled to be represented at the
Special General Meeting through Shri Anjan Ukil neither confers
any right either upon the appellants or upon the respondent no.
1 nor does it take away any of their rights. As such the said
decisions of the Electoral Officers of the CAB on different
occasions do not have any impact in the matter of deciding the
instant appeal.
The allegation in the plaint is that the plaintiff being a
registered society is entitled to represent the VSC and the
defendant nos. 2, 3, 4 and 5 being the trustees of the trust is not
entitled to use the name of VSC and/or to represent VSC to the
defendant no. 1 or any other authority. It has been also alleged in
the plaint that the trust has not taken over the assets of the club.
The allegation against the defendant nos. 2, 3, 4 and 5 is that
they are creating a cloud upon the right of the plaintiff being the
registered society to represent the VSC before the defendant no. 1
or other authorities. The plaintiff has prayed for a declaration
that the defendant nos. 2, 3, 4 and 5 being the trustees of the
purported trust is not entitled to use the name of VSC and to
represent the plaintiff club to the defendant no. 1 or any other
authorities.
We have already observed that the unregistered association
was not taken over by the trust and it is only the trustees of the
said trust who are exerting their right to control the management
and affairs of the VSC and to represent it before various
authorities. As such we are of the view that the instant suit is
maintainable in its present form.
The defendant no. 3 was the President of VSC till May 6,
2018 when it was an unregistered society. The said defendant did
not attend the AGM of the club held on May 6, 2018 for reasons
best known to him. A decision was taken in the said meeting to
get the society registered under the Societies Registration Act,
1961 at a point of time when the trust deed did not see the light
of the day. A committee was also formed in the said meeting. The
creation of trust by the defendant no. 3 claiming to be the owner
of the Club, in our view, cannot nullify the decision of the
members of the VSC, taken unanimously, in the AGM. It is also
inconceivable that the defendant no. 3 can claim to be the owner
of the VSC. Thus, no credence can be given to the contention of
the appellants that the registration under the Act of 1961,
meeting dated May 6, 2018 and the committee formed in such
meeting has no legal basis.
For the reasons as aforesaid, we are of the prima facie view,
that the appellants herein cannot represent the VSC and the
plaintiff/ respondent no. 1 is entitled to represent the VSC.
It is an admitted fact that VSC is affiliated with the CAB i.e.
the respondent no. 2 herein and is participating in various
tournaments organised by the respondent no. 2 herein. The
erstwhile unregistered club has been registered under the West
Bengal Societies Registration Act, 1961 and upon such
registration the property belonging to the society shall be deemed
to be vested in the governing body of the society and shall be
referred to as the property of the society.
The registered society is in control over the management
and affairs of the club and is entitled to represent the VSC before
various authorites. The activities of the club including
participation in the tournaments organized by the CAB are to be
supervised and regulated by the management of the club. As
such balance of convenience and inconvenience lies in favour of
the plaintiff/ respondent no. 1 herein in the matter of grant of
injunction and the interest of the club will be affected unless the
order of injunction is passed in favour of the respondent no. 1
herein as rightly observed by the learned Trial Judge.
There is no dispute to the proposition of law laid down by
the Hon'ble Supreme Court in Premji (Supra) that a party must
satisfy the Court as to the existence of a right which is to be
protected by injunction. In the instant case we are of the view
that the plaintiff/ respondent no. 1 herein has succeeded in
establishing their right prima facie, as observed by us herein
before, in order to get an order of injunction.
This court is, however, in agreement with the submission
made by Mr. Chatterjee that the order impugned does not record
reasons for passing an order of injunction. This Court, however,
did not find any infirmity in the ultimate conclusion arrived at by
the learned Trial Judge and for such reason this Court proceeded
to decide the instant appeal on its merit instead of remanding the
matter to the learned Trial Judge for fresh consideration.
For the reasons as aforesaid we are not inclined to interfere
with the later part of Order no. 91 dated January 22, 2020
passed by the learned Judge, VIth Bench, City Civil Court at
Calcutta in Title Suit no. 1587 of 2018. The appeal being FMA
no. 569 of 2020 stands dismissed thereby affirming the aforesaid
order no. 91 dated January 22, 2020 by virtue of which the
plaintiff's application under Order 39 rule 1 and 2 read with
Section 151 of the Code was allowed. The applications being CAN
1 of 2020 (Old no. CAN 1328 of 2020), CAN 2 of 2020 (Old no.
CAN 2446 of 2020), CAN 3 of 2020 are also disposed of
accordingly. There shall be, however, no order as to costs.
We, however make it clear that the observations made
hereinabove are all prima facie findings only for the purpose of
disposal of the instant appeal. The Learned Trial Judge will be
free to decide the suit without being influenced by the above
observations of this Court.
The Learned Judge VIth Bench, City Civil Court at Calcutta
is requested to dispose of the Title Suit No. 1587 of 2018 as
expeditiously as possible and positively by the end of September
2021.
All parties shall act in terms of the copy of the order
downloaded from the official website of this Court.
Urgent photostat certified copies, if applied for, be supplied
to the parties upon compliance of all formalities.
I agree.
(Subrata Talukdar, J.) (Hiranmay Bhattacharyya, J.)
