Calcutta High Court
Jai Surana vs The Calcutta Swimming Club & Ors on 20 March, 2025
OD- 5
IN THE HIGH COURT AT CALCUTTA
(ORDINARY ORIGINAL CIVIL JURISDICTION)
ORIGINAL SIDE
G.A. No. 1 of 2025
In
C.S. No. 13 of 2025
JAI SURANA
-VS-
THE CALCUTTA SWIMMING CLUB & ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Hearing Concluded On : 13.03.2025
Order On : 20.03.2025
Appearance
Mr. Ratnanko Banerji, Sr. Adv.
Mr. Jishnu Choudhury, Sr. Adv.
Mr. Rudrajit Sarkar, Adv.
Ms. Arundhati Roy Burman, Adv.
Mr. Dhruv Surana, Adv.
Mr. A. Choudhury, Adv.
...for the plaintiff
Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Yash Vardhan Kochar, Adv.
Mr. Souradeep Banerjee, Adv.
Mr. B. N. Joshi, Adv.
... for defendant nos. 2 and 3.
2
Mr. Anirban Ray, Sr. Adv.
Mr. Yash Vardhan Kochar, Adv.
Mr. Souradeep Banerjee, Adv.
Ms. Debashri Mukherji, Adv.
...for the defendant no.4
Mr. Sudhir Kr. Mehta, Sr. Adv.
Mr. Anuj Singh, Adv.
Mr. Anurag Bagaria, Adv.
Mr. Aman Agarwal, Adv.
Ms. Riya Debnath, Adv.
... for defendant no. 13.
ORDER
1. The plaintiff has filed the present application being GA No. 1 of 2025 in
CS No. 13 of 2025 praying for interim order. The plaintiff has been a
permanent member of the defendant no. 1 since 1988. On 23rd
September, 2024, the plaintiff had sent a WhatsApp text to all the
members of the defendant no. 1 Club with regard to financial
irregularities within the club and requested to place the same in the
Annual General Meeting on 28th September, 2024 for discussion.
2. On receipt of the said text message from the plaintiff, an email dated 9th
October, 2024 sent to the plaintiff requesting the plaintiff to confirm
whether the said WhatsApp text was sent by the plaintiff or not. On
19th October, 2024, the plaintiff had sent an email to the Secretary
informing that there is no mention in the email dated 9th October, 2024
as to what is the matter for which, the Secretary, on its own accord,
wishes to proceed further and until proper clarification is not provided,
the plaintiff will not give any answer to the query raised by the
Secretary in its email dated 9th October, 2024. On 24th October, 2024,
the plaintiff has again received an email from the defendant no. 14
wherein it is mentioned that the WhatsApp communication of the
plaintiff, emails dated 9th October, 2024 and 19th October, 2024 were
placed before the Committee in its meeting held on 23rd October, 2024.
The Committee after due deliberation decided to refer the matter to the
"Member's Relationship Committee". The Member's Relationship
Committee had decided to hold a meeting on 28th October, 2024 at
18:00 hours and requested the plaintiff to appear before the Member's
Relationship Committee to explain the contents of the averments made
in the WhatsApp communication dated 23rd September, 2024. On
receipt of the email dated 24th October, 2024, the plaintiff by an email
dated 27th October, 2024 informed the Secretary of the Club that the
plaintiff is not aware as to why the meeting has been called on 28th
October, 2024 and also informed that the plaintiff would not be able to
appear before the Member's Relationship Committee on 28th October,
2024, as he had a prior legal engagement and requested for re-schedule
the meeting.
3. The Member's Relationship Committee meeting was held on 8th
November, 2024 and in the said meeting, the defendant no. 14 being
the Chairman of the said Committee proposed for video recording of the
entire meeting as the Secretary of the Club was not present due to his
ill health. The plaintiff agreed for the said proposal, subject to the
unedited copy of the video recording being forwarded to the plaintiff.
4. On 18th November, 2024, the defendant no. 2 forwarded unedited video
recording of the meeting dated 8th November, 2024 and it was also
mentioned that the "Member's Relationship Committee" sought
clarification from the plaintiff with respect to certain queries. By an
email dated 24th November, 2024, the plaintiff requested for supply of
Minutes of the Meeting dated 8th November, 2024 and informed that
without the Minutes of the Meeting, the plaintiff is unable to answer the
queries. On 25th November, 2024, the plaintiff has received another
email from the defendant no. 2 mentioning that the videography
proceeding would be treated as Minutes of the Meeting and the plaintiff
was requested to reply the questions which has been sent to him on
instructions of the Member's Relationship Committee. Though the
defendants have already informed the plaintiff that videography
proceeding would be treated as Minutes of the Meeting inspite of the
same, the plaintiff again and again requested for supply of copy of the
Minutes of the Meeting dated 8th November, 2024.
5. On 18th January, 2025, the plaintiff has received an email from the
Acting Secretary of the Club mentioning that the plaintiff had failed to
appear and meet the Executive Committee in its meeting held on 20th
December, 2024 and the plaintiff was requested to meet the Executive
Committee on 27th January, 2025. On 27th January, 2025, the plaintiff
verbally explained the matter and informed that as and when the
Minutes in writing of the meeting dated 8th November, 2024 would be
provided to the plaintiff, the plaintiff would respond in writing to the
three questions that have been put to him.
6. On 30th January, 2025, the plaintiff has received an email from the
defendant no. 2 informing that the plaintiff was being suspended under
Rule 22(b)(ii) of the Club's Rules and Bye-laws (Revised 2023) from the
'Use of the Club' for a period of three months and also called upon the
plaintiff to resign from the Club as a member under Rule 22(b)(iii) of the
said Rules.
7. Mr. Rantnanko Banerjee, Learned Senior Advocate representing the
plaintiff submits that the email dated 30th January, 2025, issued by the
defendant no. 14 without any prior show cause notice and as such the
defendants have violated the principles of natural justice by issuing the
email dated 30th January, 2025 by suspending the plaintiff and called
upon the plaintiff to resign from the Club as member of the Club. He
submits that the procedure adopted by the defendants is breach of
natural justice. In support of his submission, Mr. Banerjee relied upon
the Judgment in the case of Gorkha Security Services vs.
Government (NCT of Delhi) & Ors. reported in (2014) 9 SCC 105. Mr.
Banerjee has also relied upon the judgment in the case of UMC
Technologies Pvt. Ltd. -vs- Food Corporation of India & Anr.
reported in (2021) 2 SCC 551 and submitted that the fundamental
purpose behind the serving of show cause notice is to make the notice
understand the precise case set up against him which he has to meet.
8. Mr. Banerjee submits that the communication dated 17th December,
2024 mentioned that the plaintiff was called to meet the Executive
Committee with the answers and the email dated 18th January, 2025
has to be read in continuance of the email dated 17th December, 2024
and on combined reading of the said two communications, it is evident
that the meeting was rescheduled on 27th January, 2025 was only for
the plaintiff to provide answers and for no other reason.
9. Mr. Banerjee submits that from the transcriptions of video recording of
the meeting of the Member's Relationship Committee, the three
questions are beyond the Rules and shows that the Member's
Relationship Committee has not framed the questions which were
subsequently sent to the plaintiff by the Secretary. He submits that the
plaintiff is insisting upon the Minutes of the Meeting dated 8th
November, 2024 to justify that neither the Member's Relationship
Committee nor the Executive Committee have framed any question
which was forwarded to the plaintiff.
10. Mr. Banerjee submits that the impugned order of suspension dated 30th
January, 2025 does not contain any reason. The explanation provided
orally by the plaintiff should have at least been considered in the
suspension order. He submits that the explanation was provided in the
hearing before the Executive Committee has been recorded by the
plaintiff in his letter dated 29th January 2025.
11. Mr. Banerjee submits that the plaintiff has only complained about the
financial irregularities which appear in the balance sheet and the same
was certified by the Chartered Accountant. He submits that for
speaking truth, the plaintiff has been penalized.
12. Mr. Banerjee submits that the defendants have chosen to deal with the
questions raised by the Annual General Meeting and now the
defendants cannot turn around and pick up the same Circular prior to
the Annual General Meeting as a cause of action to proceed with the
suspension of the plaintiff.
13. Mr. Banerjee submits that the defendants ought to have informed the
nature of action which is proposed to be taken for such breach. In
support of his submissions, he has relied upon the judgment in the
case of UMC Technologies Private Limited vs. Food Corporation of
India & Anr. reported in (2021) 2 SCC 551.
14. Mr. Banerjee submits that removal of the plaintiff from the Club has
civil consequences. The reputation of the plaintiff has been lowered and
degraded. The plaintiff will be exposed to civil consequences and to the
public at large which is humiliation for the plaintiff being the past
President of the Club. In support of his submissions, Mr. Banerjee
relied upon the judgment in the case of Suresh G. Seth & Ors. vs.
National Sports Club of India reported in 2019 SCC OnLine Bom
6683.
15. Mr. Anindya Kumar Mitra, Learned Senior Advocate representing the
defendant no.2 and 3 submits that in the notice dated 30th January,
2025 at paragraph 14, the reasons on the basis of which the Executive
Committee of the Club took the decision to suspend the plaintiff for a
period of three (3) months have been enumerated.
16. Mr. Mitra submits that Rule 16 of the Bye-Laws of the Club provides
that any complaint or suggestion which a member of the Club seeks to
make would be in a book which is kept in Secretary's office. He submits
that the plaintiff is a past President of the Club and a permanent
member since 1988 chose not to make any complaint in the manner as
provided under the Bye-laws of the Club and instead has caused
circulation in a clandestine manner only to cause tarnish the
reputation of the Club.
17. He submits that on 12th September, 2024, notice was issued to
convening of the Annual General Meeting and as per the notice, the
members were required to send their queries on or before 20th
September, 2024. The plaintiff and few members by a letter dated 20th
September 2024 raised certain queries to be considered in the Annual
General Meeting and then said queries were duly considered in the
Annual General Meeting but the plaintiff has suppressed the said fact.
18. Mr. Mitra submits that the Audited accounts of the Club for the
financial years 2023-2024 on which the plaintiff has made allegations
and charges by a Circular dated 23rd September, 2024 has been passed
by majority in the Annual General Meeting. He submits that at the
Annual General Meeting held on 28th September, 2024, the plaintiff did
not provide any material to substantiate the allegations made in the
Circular dated 23rd September, 2024.
19. Mr. Mitra submits that on 8th November 2024, the plaintiff has
appeared before the Member's Relationship Committee and with the
consent of the plaintiff, the entire meeting was video graphed. In the
said meeting, the plaintiff accepted that the Circular was circulated by
the plaintiff through his WhatsApp. The plaintiff reused to give any
answer of further questions of the Member's Relationship Committee
and informed that the plaintiff shall only answer the questions, if the
same are sent to him in writing by the Member's Relationship
Committee along with unedited copy of the videography of the meeting.
20. Mr. Mitra submits that on 9th November, 2024, the plaintiff by an E-
mail requested for video-recording of the meeting dated 8th November,
2024. In the said email, the plaintiff has not made any demand of copy
of Minutes of the Meeting. Mr. Mitra submits that on 18th November,
2024; 25th November, 2024; 4th December, 2024; 10th December, 2024
and 17th December, 2024 and 18th January; 2025 requested the
plaintiff to send reply and to appear before the Executive Committee
and on 27th January, 2025, the plaintiff attended the meeting before
the Executive Committee along with Mr. Nitin C. Dani, a former
President of the Club. Mr. Mitra submits that the plaintiff inspite of
several opportunities, has not answered the queries raised by the
Committee.
21. Mr. Mitra submits that the jurisdiction of Civil Court is limited and the
Civil Court will not act as a Court of appeal from the decision of the
Executive Committee of the Club. Mr. Mitra relied upon the judgment
in the case of T.P. Daver vs. Lodge Victoria No. 363 S.C. Belgaum &
Ors. reported in AIR 1963 SC 1144 and submitted that this Court in
exceptional case interfere with the decision of the Club if this Court
finds that the Club has acted without jurisdiction, does not act in good
faith or acted in violation of natural justice. Mr. Mitra has relied upon
the judgment passed in the case of T.P. Daver (supra) has since been
followed in the case of Jeet Banerjee vs. The Calcutta Club Limited
order dated 8th October, 2021 in C.S. No. 214 of 2021, Ranjan
Dhingra vs. Rotary International & Ors. reported in
MANU/DE/3046/2023 and in the case of Balraj Singh Malik vs. Govt.
of NCT of Delhi reported in MANU/ DE/ 3478/ 2014.
22. Mr. Mitra submits that show cause notice is not required for
suspension. He submits that suspension is an interim measure and it
is a settled law that for the purpose of taking a decision to suspend no
prior notice is required. In support of his submissions, he has relied
upon the judgments in the case of (i). CA.V. Venkata Sivakumar vs.
Insolvency and Bankruptcy Board of India (IBBI) & Ors. reported in
2024 SCC OnLine Mad 156, (ii) Y. Venkateshwarlu Vs. State of
Madras reported in AIR 1954 Mad 587 and (iii). Sri Pranab
Prasanna Biswas Vs. The State of West Bengal and Ors. reported
in 1979 SCC Online Cal 234.
23. Mr. Mitra submits that the suit is not maintainable against the
defendant no.1. He submits that the defendant no.1 Club is an
unincorporated association of persons. The defendant no.1 does not
have any juristic entity and is nothing more than an aggregation of
members. He submits that no order can be passed against the
defendant no.1. In support of his submissions, he has relied upon the
judgments in the case of (i) Rajendra Nath Tikku Vs. Royal Calcutta
Turf Club reported in AIR 1964 Cal 57, (ii) Illachi Devi (dead) by
Lrs. and Others Vs. Jain Society, Protection of Orphans India and
Others reported in (2003) 8 SCC 413 and (iii) Natural City Flat
Owner's Welfare Association Vs. The State of West Bengal and
Others passed in FMA NO. 701 OF 2021.
24. Mr. Sudhir Kumar Mehta, Learned Senior Advocate representing the
defendant no.13 submits that the relief sought for by the plaintiff for
stay of the suspension order, which in turn would mean forcing other
members who are unwilling to have company of the plaintiff for the
purpose of socializing, to accept the plaintiff as their fellow member and
this subject is not a matter which can be covered by Specific Relief Act,
1963. He submits the suit filed by the plaintiff is barred under Section
14 of the Specific Relief Act, 1963. He submits that the Court cannot
supervise the Club.
25. Mr. Mehta submits that in the plaint, the only issue raised by the
plaintiff is violation of natural justice, which on the face of the plaint
cannot sustain. He submits that the plaintiff has appeared before the
Committee but he refused to cooperate in the meeting and accordingly,
the suspension order is passed and revocation proceeding initiated.
26. Mr. Mehta submits that as regard to the financial irregularities are
concerned, the plaintiff was present when the accounts for the year
2012-2022 and 2023-2024 were presented and passed where all
queries were satisfactorily answered and accounts were approved by
the members. He submits that the accounts for the year 2023-2024
was passed unanimously. The account for the year 2022-2023 was
passed with the ratio of 77:4, the plaintiff was not amongst dissenting
four members.
27. Mr. Mehta submits that accounts for the last Annual General Meeting
2023-2024 was also approved with unanimously where the plaintiff was
also present.
28. Mr. Mehta relied upon the following judgments:
i. Peethambara Granite Gwalior (M/S.) vs. State
of M.P. reported in 2020 SCC OnLine MP 4598.
ii. Ram Kumar Kashyap & Anr. vs. Union of
India & Anr. reported in (2009) 9 SCC 378.
iii. Khandelwal Ferro Alloys Limited & Anr. vs.
Member, Industrial Court, Nagpur & Anr.
reported in 1992 Mh. L.J. 1517.
iv. A.K.K. Nambiar vs. Union of India & Anr.
reported in (1969) 3 SCC 864.
v. Umesh Chand Vinod Kumar & Ors. vs. Krishi
Utpadan Mandi Samiti, Bharthana & Anr.
reported in 1983 SCC OnLine All 638.
vi. Sand Carrier's Owners' Union & Ors. vs.
Board of Trustees for the Port of Calcutta &
Ors. reported in 1989 SCC OnLine Cal 114.
vii. Executive Committee of Vaish Degree College,
Shamli & Ors. vs. Lakshmi Narain & Ors.
reported in (1976) 2 SCC 58.
viii. British Airways PLC vs. Barunendra Nath
Basu reported in 2002 SCC OnLine Cal 7.
ix. Ramswaroop Sunderlal Goyal vs. North India
Association, Mumbai reported in 2013 (4)
Mh.L.J. 239.
x. Chief Conservator of Forests, Government of
A.P. vs. Collector & Ors. reported in (2003) 3
SCC 472.
29. Mr. Anirban Ray, Learned Senior Advocate representing the defendant
no.4 by adopting the submissions of Mr. Mitra, submits that the
plaintiff has not challenged the Rules of the Club and if Rules prevail,
the plaintiff will get an interim order.
30. The dispute arose between the plaintiff and the club when the plaintiff
has circulated a WhatsApp message to all the members of the
defendant no. 1 club questioning the following:
"a. More than 8.25 Cr. Has been spend on
Building, Furniture and Fixtures and Equipments in
one financial year;
b. Investments coming down by 2.5 Cr.;
c. Gross irregularities in figures which were shown
last year and brought forward this year;
d. No explanation or Schedule being provided to
show the applicability of huge money spend.
e. No prior intimation or permission sought from
members before venturing to spend over 8 Cr. in a
financial year,
f. Whether three Quotations were invited before
allocating work to a particular Vendor.
31. Rule 16 of the Bye-Laws provides that how the complaint and
suggestions is to be made. Rule 16 of the Club reads as follows:
"16. Complaints and Suggestions.- A book
in which Members may enter any complaints or
suggestions, shall be kept in the Secretary's Office
and not removed therefrom."
The plaintiff is the life member of the defendant no. 1 Club and
also the Ex-President of the defendant no. 1 Club but inspite of having
the knowledge how the complaint and suggestion is to be submitted,
the plaintiff had circulated the above alleged irregularities by way of
WhatsApp to all the members, thus this Court is of the view, if the
plaintiff would have any grievance or complaint against the Club or its
members, the plaintiff ought to have made the complaint and
suggestion in terms of the Rule 16 of the Rules and Bye-Laws of the
Club.
32. On 12th September, 2024, the Secretary of the Club had issued the
notice to all the members informing that an Annual General Meeting of
the Club will be held on 28th September, 2024 in which Agenda of the
meeting was also informed to the members. One of the Agenda of the
said Annual General Meeting was "to adopt and pass the Accounts for
the period ended on 31st March, 2024". On receipt of the said notice, the
plaintiff and some of the members by a letter dated 20th September,
2024, informed the Secretary raising the following issues:
20.09.2024
"The Secretary,
The Calcutta Swimming Club.
1, Strand Road
Kolkata
Dear Sir,
I am a Member of the Club and my membership No.
is S 1829
In term of Rule 49 of our club Rules, I would like to
raise the following question in the ensuing Annual
general Meeting fixed for 28th September, 2024.
How much money was spent to renovate
the Men's Changing Room and Bar No. 1?
Whether any Quotations being taken before
the start of work? If yes from how many
Vendors?
Is it not prudent to inform members before
spending such huge amount on renovation?
Is it also not prudent to circulate to all the
members the major heads on which such
expenses were made?
Yours truly,
JAI SURANA."
In the meeting held on 28th September, 2024, in Agenda no. 5 for
adoption and passing off the accounts for the twelve months period
ended on 31st March, 2024 was discussed and in the said meeting, the
plaintiff had made following queries:
"(d) Question: Mr Jai Surana (S1829) query
enquired that how much money was spent to
renovate the Men's Changing Room and Bar No. 1.
He also asked whether any quotations were
taken before the start of work? If yes from how
many Vendors?
Was it not prudent to inform members before
spending such huge amount on renovation?
He also asked was it also not prudent to
circulate to all the members the major heads on
which such expenses were made?"
On the said query of the plaintiff, Mr. Rishi Bajoria has answered
all the queries of the plaintiff which are as follows:
"Answer: The amount spent on the Men's
Changing Room was 1.35 crores and the amount
spent on the Bar No. 1 was 2.73 crores +
applicable statutory taxes.
Yes, quotations were taken from multiple
vendors, as and when required.
Mr. Rishi Bajoria also iterated that this whole
renovation process was kick started by you in your
tenure as President and you will recall that even at
that stage, you had not followed what you have
mentioned in your letter. Sir, we are followed your
footsteps."
33. The WhatsApp Circulation made by the plaintiff was neither placed in
the meeting nor has the plaintiff pointed out about the WhatsApp
Circulation. It is clear that the issue raised by the plaintiff through
WhatsApp message was not discussed in the Annual General Meeting.
34. After Annual General Meeting, a query was made to the plaintiff to
confirm whether the said WhatsApp message was sent by the plaintiff
or not and the plaintiff had sent a detailed reply on 19th October, 2024.
On receipt of the said reply, the WhatsApp Circular and the reply of the
plaintiff were placed before the Committee on 23rd October, 2024 and
after discussion, the Committee held that the matter is to be placed
before the Member's Relationship Committee comprising of one
Chairman and five members. The Member's Relationship Committee
has decided to hold the meeting on 28th October, 2024 and the plaintiff
was also requested to appear before the Member's Relationship
Committee to explain the contents of the WhatsApp communication. By
an email dated 27th October, 2024, the plaintiff has requested to fix
another date to appear before the Members Relationship Committee,
accordingly, the Member's Relationship Committee has fixed the date of
meeting on 4th November, 2024. On 2nd November, 2024, the plaintiff
by an email requested for rescheduling the date as on 4th November,
2024, the plaintiff will not be in Calcutta. Accordingly, by an email
dated 3rd November, 2024, the meeting of the Member's Relationship
Committee was fixed on 8th November, 2024. On 8th November, 2024,
the plaintiff had appeared before the Member's Relationship Committee
and with the consent of the plaintiff, the proceeding of the Meeting was
video-graphed. On 9th November, 2024, the plaintiff requested the
Secretary of the Club for providing the entire unedited video recording
of the meeting dated 8th November, 2024.
35. On 18th November, 2024, by an email, the Secretary had informed the
plaintiff that the Member's Relationship Committee seeking clarification
from the plaintiff and the said queries were forwarded to the plaintiff
requested the plaintiff to send his reply within seven days from the date
of receipt of the letter/e-mail. On 24th November, 2024, the plaintiff
requested the Secretary for providing the Minutes of the Meeting and
unless and until the same is not provided, the plaintiff will not be in a
position to answer the queries raised by the Committee. On 25th
November, 2024, it was informed to the plaintiff that the Secretary was
not present in the said meeting due to his ill-health and the entire
proceedings were being video-graphed and is to be treated as the
Minutes of the Meeting. It was further informed that there is no
separate Minutes of the Meeting. In reply to the said email, the plaintiff
again by an email, requested to provide Minutes of the Meeting. Again
by an email dated 27th November, 2024, the plaintiff again requested
the Secretary to provide Minutes of the Meeting dated 8th November,
2024. By an email dated 4th December, 2024, the Secretary had again
informed the plaintiff that there is no separate Minutes of the Meeting
was recorded with respect to the meeting dated 8th November, 2024 and
the videography sent to the plaintiff being treated as Minutes of the
Meeting and also requested to submit the reply of the query within
three working days. On 8th December, 2024, the plaintiff has informed
to the Secretary that the question will not be answered until and unless
the written Minutes of the Meeting dated 8th November, 2024 is not
served to the plaintiff. On 10th December, 2024, the Secretary has
informed the plaintiff that the request of the plaintiff was placed before
the Member's Relationship Committee and the Committee informed
that the videography is the formal Minutes of the Meeting held on 8th
November, 2024 and again requested to submit the reply to the queries
within three days failing which the Member's Relationship Committee
will have to place the matter before the Executive Committee for further
consideration.
36. As the plaintiff has not submitted reply to the queries raised by
Members Relationship Committee, accordingly, the Secretary by an
email dated 17th December, 2024, informed the plaintiff that the
plaintiff has not filed the reply to the queries and requested the plaintiff
to meet the Executive Committee in the Committee meeting scheduled
to be held on 20th December, 2024 with the answer of the plaintiff.
Inspite of notice dated 17th December, 2024, the plaintiff has not
appeared before the Executive Committee and again by an email dated
18th January, 2025, requested the plaintiff to meet the Executive
Committee in its meeting scheduled to be held on 27th January, 2025.
On 27th January, 2025 i.e. on the date of the meeting, the plaintiff has
requested to allow the plaintiff to present in the meeting along with one
Mr. Nitin C. Dani, the Former President of the Club and accordingly,
the same was allowed and the plaintiff had attended the meeting along
with Mr. Nitin C. Dani.
37. In the Member's Relationship Committee meeting dated 8th November,
2024, the plaintiff has admitted that he has sent the said WhatsApp
message by his mobile and also admitted that he has written the said
letter. A question was also put to the plaintiff if the Committee will give
the letter, Minutes and everything, what would be next steps of the
plaintiff. In answers to the said question, the plaintiff has replied that
"No, you give me question so I can give you an answer". As per the
contention of the plaintiff, Rule 51 of the Club provides that the
Minutes and the Resolutions passed at each Meeting of the Committee
and each General Meeting of the Club, shall be fairly copied in a book
and signed by the Secretary and the Chairman of the each Meeting. The
Minutes of the Annual General Meeting shall be open to inspection by
all members for one month from the date of such meeting. It is the
contention of the plaintiff that no Minutes of the Meeting dated 8th
November, 2024 was served upon the plaintiff and as such the
defendants have violated the Rule 51 by not providing the said Minutes
to the plaintiff.
After the meeting dated 8th November, 2024, the plaintiff had sent
an email to the Secretary requested to provide entire unedited video
recording which was recorded in the said Meeting with the Members
Relationship Committee. In the said letter, the plaintiff has not
requested for any Minutes of the Meeting dated 8th November, 2024.
The plaintiff has raised the issue that no Minutes of the Meeting dated
8th November, 2024 was served and recorded only after receipt of the
queries from the Members Relationship Committee. This Court finds
that with the consent of the plaintiff, the meeting dated 8th November,
2024 was video-graphed and unedited copy of the said videography was
served to the plaintiff. It is the specific case of the defendant that the
Secretary could not present on the said date due to ill health and as
such instead of recording the Minutes of the Meeting, videography was
conducted and unedited copy of the said videography was served to the
plaintiff and the plaintiff has not raised any question with regard to the
authenticity of the said videography, thus this Court is of the view that
the unedited copy of the same was served to the plaintiff and the
videography was conducted with the consent of the plaintiff, now the
plaintiff cannot take the plea that no Minutes of the Meeting was served
upon the plaintiff.
38. In one hand, the plaintiff is relying upon Rule 51 of the Club's Rules
which reads as follows:
"Rule No.51 - Minutes of Meetings (Committee
& General).
The Minutes of and the Resolutions passed at
each Meeting of the Committee and at each General
Meeting of the Club, shall be fairly copied in a book
and signed by the Secretary and the Chairman of
each Meeting. The Minutes of the Annual General
Meeting shall be open to inspection by all Members
for one month from the date of such Meeting."
On the other hand, the plaintiff has circulated WhatsApp message
making complaint against the Club by not following the procedure
provided under Rule 16 of the Club.
In the case of R.N. Gosain vs. Yashpal Dhir reported in (1992) 4
SCC 683, the Hon'ble Supreme Court held that law does not permit a
person to both approbate and reprobate. The principle is based on the
doctrine of election which postulates that no party can accept and
reject the same instrument and that "a person cannot say at one time
that a transaction is valid and thereby obtain some advantage, to which
he could only be entitled on the footing that it is valid, and then turn
round and say it is void for the purpose of securing some other
advantage".
39. It is also the case of the plaintiff that before issuance of the order of
suspension, no show cause notice is served upon the plaintiff.
Rule 22 of the Rules and Bye-Laws of the Club reads as follows:
"Rule No. 22 - Suspension and Expulsion.
(a) Any Member of the Committee may temporarily
suspend any Member from the 'Use of the
Club', for any breach of Rules or Bye-Laws,
until the next meeting of the Committee, whose
decision shall then be ascertained and made
known to the Member concerned.
(b) If it shall be alleged that any Member of the
Club has committed a grave breach of any
Rule or Bye-Law, or has been guilty of or
responsible for any conduct, act or omission,
whether within or outside the Club, such as to
affect the character or good name of the Club,
or to cause any annoyance to other Members,
or if the Committee is satisfied that a Member
or any relation of a Member enjoying the Club
facilities under the responsibility of that
Member, has given any monies, gratuities or
other inducements to any staff of the Club, the
Committee may request such Members to
appear before them at such date, time and
place as may be specified, and if the Member
shall then fail to appear as requested, or on
appearing, shall fail to give explanation
acceptable to the Committee for the matter
alleged, the Committee shall have the power :-
(i) To caution or reprimand such Member.
(ii) To suspend such Member from the 'Use
of the Club' for any period not exceeding
three months.
(iii) Where a Member is suspended as
above, to call upon such Member to resign
from the Club
(c) If having been called upon to resign as above,
the Member concerned shall not do so within
twenty-four hours thereafter, the Committee
may refer the matter to the Special Board for
decision as to the expulsion or otherwise of the
Member.
(d) The Special Board in such cases shall be
constituted as follows:-
Chairman the President of the Club or in his
absence the Vice President.
Three Members of the Committee nominated
by the Committee.
Three Gentlemen Permanent Members
nominated by the Member whose conduct is
called in question, should the Member elect to
do so.
Such Ex Presidents of the Club as may be in
Kolkata.
(e) At any meeting of the Special Board, five shall
constitute a quorum.
(f) The Chairman of the Special Board shall fix the
date, time and place of the meeting / meetings
of the Special Board and he shall have the
casting vote in the event of any equality of
votes on any issue.
(g) The Special Board shall enquire into the matter
alleged in such manner and by such
procedure as the Special Board may
determine. Meetings of the Special Board shall
be in camera, unless the Special Board shall
otherwise direct; and only the Member whose
conduct is called in question and such other
persons as the Special Board may consider
necessary, shall be heard and examined.
(h) The Special Board may proceed in the absence
of the Member whose conduct is called in
question, should he or she, fail to attend after
notice of any meeting of the Special Board has
been given.
(i) The Special Board shall arrive at their decisions
by majority vote either by show of hand or by
secret ballot, as the Chairman may determine,
and the Special Board shall have the power to
confirm, set aside, or vary the decision of the
Committee under Sub-para (b) above, or to
expel from the Club the Member whose
conduct has been called in question."
40. The plaintiff in support of his case relied upon the judgment in the case
of Gorkha Security Services Vs. Government (NCT of Delhi) and
Others reported in (2014) 9 SCC 105 wherein the Hon'ble Supreme
Court held that:
"21. The central issue, however, pertains to
the requirement of stating the action which is
proposed to be taken. The fundamental purpose
behind the serving of show-cause notice is to make
the noticee understand the precise case set up
against him which he has to meet. This would
require the statement of imputations detailing out
the alleged breaches and defaults he has
committed, so that he gets an opportunity to rebut
the same. Another requirement, according to us, is
the nature of action which is proposed to be taken
for such a breach. That should also be stated so
that the noticee is able to point out that proposed
action is not warranted in the given case, even if
the defaults/breaches complained of are not
satisfactorily explained. When it comes to
blacklisting, this requirement becomes all the more
imperative, having regard to the fact that it is
harshest possible action.
22. The High Court has simply stated that the
purpose of show-cause notice is primarily to enable
the noticee to meet the grounds on which the action
is proposed against him. No doubt, the High Court
is justified to this extent. However, it is equally
important to mention as to what would be the
consequence if the noticee does not satisfactorily
meet the grounds on which an action is proposed.
To put it otherwise, we are of the opinion that in
order to fulfil the requirements of principles of
natural justice, a show-cause notice should meet
the following two requirements viz:
(i) The material/grounds to be stated
which according to the department
necessitates an action;
(ii) Particular penalty/action which is
proposed to be taken. It is this second
requirement which the High Court has failed to
omit.
We may hasten to add that even if it is not
specifically mentioned in the show-cause notice but
it can clearly and safely be discerned from the
reading thereof, that would be sufficient to meet
this requirement."
41. The plaintiff also relied upon the judgment in the case of UMC
Technologies Private Limited Vs. Food Corporation of India
reported in (2021) 2 SCC 551 wherein the Hon'ble Supreme Court held
that:
"13. At the outset, it must be noted that it is
the first principle of civilised jurisprudence that a
person against whom any action is sought to be
taken or whose right or interests are being affected
should be given a reasonable opportunity to defend
himself. The basic principle of natural justice is that
before adjudication starts, the authority concerned
should give to the affected party a notice of the
case against him so that he can defend himself.
Such notice should be adequate and the grounds
necessitating action and the penalty/action
proposed should be mentioned specifically and
unambiguously. An order travelling beyond the
bounds of notice is impermissible and without
jurisdiction to that extent. This Court in Nasir
Ahmad v. Custodian General, Evacuee
Property has held that it is essential for the notice
to specify the particular grounds on the basis of
which an action is proposed to be taken so as to
enable the noticee to answer the case against him.
If these conditions are not satisfied, the person
cannot be said to have been granted any
reasonable opportunity of being heard.
21. Thus, from the above discussion, a clear
legal position emerges that for a show-cause notice
to constitute the valid basis of a blacklisting order,
such notice must spell out clearly, or its contents be
such that it can be clearly inferred therefrom, that
there is intention on the part of the issuer of the
notice to blacklist the noticee. Such a clear notice is
essential for ensuring that the person against
whom the penalty of blacklisting is intended to be
imposed, has an adequate, informed and
meaningful opportunity to show cause against his
possible blacklisting."
42. The defendant nos. 2 and 3 have relied upon the judgment in the case
of Pranab Prasanna Biswas vs. The State of West Bengal & Others
reported in 1979 SCC OnLine Cal 234 wherein the Coordinate Bench
of this Court held that some cases emphasis that that principle of
natural justice are to be followed. But suspension pending disciplinary
proceedings, in my opinion, need not to be upon notice to the person
concerned, because he will get his chance in the disciplinary
proceedings.
43. The defendant nos. 2 and 3 have relied upon the judgment in the case
of CA.V. Venkata Sivakumar vs. Insolvency and Bankruptcy Board
of India and Others reported in 2024 SCC OnLine Mad 156 wherein
the Hon'ble Division Bench of Madras High Court held that :
"6.2. The power of suspension is not a
punishment and is an ad interim measure and if
one has to be issued with show-cause notice, then
the very purpose of ad interim suspension is lost.
Inasmuch as ultimate punishment is imposed only
on the conclusion of the disciplinary proceedings it
cannot be said that any substantial or vested right
of the resolution professional is violated. On the
contrary, the purpose of suspension is to
immediately keep the erring person away from the
office, so that the relevant materials and evidence
which are on record be properly collected and that
there is an impartial and fair enquiry in the issue.
Therefore, the requirement of issuance of show-
cause notice cannot be read into a provision of ad
interim suspension.
6.3. Of course, any suspension, if prolonged,
without any inquiry being proceeded with, would
cause stigma. But the larger public interest and the
laudable purpose behind the rule of suspension
and the relative hardship had to be balanced. Only
to avoid hardships, normally swift and prompt
completion of the process of disciplinary
proceedings is insisted upon. Therefore, the
petitioner or any other aggrieved professional can
only insist upon prompt completion of the
proceedings and the hardship cannot be a ground
for challenging the very regulation itself."
44. In the present case after circulation of WhatsApp message by the
plaintiff, notices were issued to the plaintiff for confirmation whether
the said Circular was sent by the plaintiff or not. To give an opportunity
to the plaintiff, the Member's Relationship Committee was formed. The
said committee has given personal hearing to the plaintiff. After the
said meeting, three queries were made to the plaintiff but the plaintiff
has not answered to the said queries inspite of several opportunities.
The Executive Committee also given an opportunity to the plaintiff to
explain the basis of the allegation in its meeting on 27th January, 2025
but in the said meeting also, the plaintiff has not explained and again
asked for the Minutes of the Meeting dated 8th November, 2024, though
by an email dated 25th November, 2024, it was informed to the plaintiff
that the meeting dated 8th November, 2024 was video graphed with the
concurrence of the plaintiff and the video recording should be treated
as the Minutes of the Meeting.
Inspite of serval opportunities, the plaintiff failed to answer the
queries, accordingly, the defendants have issued the impugned order of
suspension invoking the provisions of Rule 22(b)(ii) of the Club.
The plaintiff is placed under suspension and also called upon to
resign from the Club as member under Rule 22(b)(iii). As per Rule 22(c)
if the member concerned shall not do so within twenty four hours
thereafter, the Committee may refer the matter to the Special Board for
decision as to the expulsion or otherwise of the Member. In terms of
Rule 22(d), the plaintiff is also entitled to nominate his three gentlemen
permanent members. As per the provisions of Rule 22(g) the Special
Board shall enquire in to the matter. The plaintiff will again get an
opportunity to explain his grievances before the Special Board. After
hearing the plaintiff's grievances, the Special Board of the Club will
take appropriate decision.
The cases relied by the plaintiff are connected with the black
listing and there is no quarrel on the proposition that it is mandatory
requirement to give show cause notice before blacklisting. In the case of
the plaintiff is of suspension pending enquiry by the Special Board. The
plaintiff will get an opportunity to place his grievances before the
Special Board, thus there is no necessity to issue show cause upon the
plaintiff before issuance of order of suspension.
45. As regard to the maintainability of the suit, this Court has not gone
into at the stage of ad-interim relief.
46. This Court finds that the plaintiff has not made out any prima facie
case or balance of convenience or inconvenience in his favour. The ad-
interim injunction as prayed for by the plaintiff is refused at this stage.
The defendant nos. 2, 3, 4 and 13 have already entered appearance
accordingly, the plaintiff is directed to serve notice upon other
defendants immediately and the defendants are directed to file affidavit-
in-opposition within two weeks, reply, if any, within a week thereafter.
47. Lis the matter on 23rd April, 2025 under the heading "New Motion".
(KRISHNA RAO, J.)
p.d/-
