Ramesh Gupta vs Dinanath Mahajan & Ors
2011 Latest Caselaw 3356 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

     %              Judgment Pronounced on: 15.07.2011

     +      CS(OS) 1345/2011

     RAMESH GUPTA                              .....Plaintiff

                                 versus -

     DINANATH MAHAJAN & ORS                    .....Defendant

     Advocates who appeared in this case:
     For the Plaintiff:   Mr. G. Tushar Rao and Mr.
                          Atanu Mukherjee, Advs.

     For the Defendant:       Ms. Kamlesh Mahajan, Advs.

     CORAM:-
     HON'BLE MR JUSTICE V.K. JAIN

     Whether Reporters of local papers may
     be allowed to see the judgment?                      No.

     To be referred to the Reporter or not?               No.

     Whether the judgment should be reported              No.
     in Digest?

     V.K. JAIN, J. (ORAL)

IAs 8967/2011 (u/O 39 R 1 & 2 CPC) & 10787/2011 (u/S. 151CPC)

1. The plaintiff claims to be General Secretary of

defendant No.3 Akhil Bharatiya Mahajan Shiromani. The

case of the plaintiff is that he was duly elected as General

Secretary of defendant No.3-Sabha in the elections held on

30th May 2010. This is also the case of the plaintiff that

defendant No.1 Sh. Dinanath Mahajan, who at present is

the President of defendant No.3 has nominated defendasnt

No.2 as the General Secretary of defendant No.3, in

contravention of the constitution of the Sabha and despite

the plaintiff having already been elected as its General

Secretary in the conference of Sabha held on 30th May 2010.

The plaintiff has, therefore, sought an injunction restraining

defendant No.2 from holding himself out as the General

Secretary of defendant No.3 and has also sought an

injunction restraining defendant No.1 from appointing any

person as General Secretary of defendant No.3.

2. The suit has been contested by the defendants.

The plead taken by the defendants is that the plaintiff was

nominated as General Secretary of defendant No.3 by the

previous President Mr. Vinay Mitter Mahajan, whose term

came to an end on 28th April 2011 and the appointment of

the plaintiff as General Secretary therefore also came to an

end with the tenure of Mr. Vinay Mitter Mahajan. It is also

the case of the defendants that the alleged elections of the

plaintiff in the conference held on 30th May 2010 has

already been challenged by them in a civil suit, which is

pending in District Court Saket. The learned counsel for

the defendants further states that the defendants have also

filed a contempt petition in FAO 406/2008.

3. A perusal of the constitution of defendant no.3

filed by the defendant would show that as per clause 19, the

General Secretary has to be elected in an open session of

the conference and if a unanimous election is not possible

in that event the President is empowered to nominate the

General Secretary of his choice. Admittedly, defendant No.2

has not been elected as General Secretary of defendant No.3

in an open session of the conference. No such claim has

been made by the defendants. The constitution of

defendant No.3 does not empower the President to nominate

the General Secretary of his choice without first making an

attempt for a unanimous election in an open session of the

conference. He can nominate a person of his choice as a

General Secretary only in the event of a unanimous election

not being possible in the open session of the conference.

Therefore, nomination of defendant No.2 is prima facie

illegal and in contravention of the constitution of defendant

No.3.

4. Coming to the case of the plaintiff, a perusal of the

resolution passed at the open session of the conference held

on 30th May 2010 which purports to be signed by Vinay

Mitter Mahajan, the then President of defendant No.5 Mr.

Jangi Lal Mahajan, Chairman Reception Committee would

show that as many as 355 members attended the session in

which the plaintiff was elected as General Secretary of

defendant No.3. Admittedly, defendant No.1 Dinanath

Mahajan had also attended the aforesaid session of the

conference. The election of the plaintiff as General

Secretary in the session held on 30th May 2010 has not

been declared illegal or unconstitutional by any Court of

law. Prima facie there is no material before the Court from

which it may be inferred that the election of the plaintiff as

General Secretary in the session held on 30th May 2010

was illegal or unconstitutional. Therefore, prima facie the

plaintiff is entitled to continue to function as General

Secretary of defendant No.3 till the next conference. Of

course it would be open to the competent person to hold the

next conference as and when deemed appropriate in

accordance with the constitution of defendant No.3.

5. The learned counsel for the defendants has led me

through the award dated 28th April 2008 given by Hon'ble

Mr. Justice R.C. Chopra, who was appointed as the

Arbitrator/Court Commissioner vide order dated 29th

August 2007 passed in RFA(OS) 48/2007, the order dated

19th August 2008 passed by the learned Single Judge of

this Court in OMP No.293/2008 and OMP No.403/2008,

order dated 24th March 2009 passed by a Division Bench of

this Court in FAO(OS) 405/2008 and the order dated 29th

April 2010 passed by this Court on CM 7961/2010 in

FAO(OS) 406/2008. She has also led me through the

compromise application which has been filed in FAO(OS)

No.406/2008. A perusal of these documents would show

that there was dispute with respect to the right of 399 life

members to participate in the elections. The Division Bench

was of the view that the election should be held by

permitting all the members including those 399 members to

participate in the elections, though the votes cast by them

were to be kept separate and were not to be counted or

opened until further orders and the result was to be

complied on the basis of the votes cast by other members

after excluding those 399 members and was to be produced

before the Court. Mr. Rajiv Bansal, Advocate was appointed

to initiate the process of holding elections, fix the election

schedule, hold elections and thereafter file a result.

However before Mr. Rajiv Bansal could hold elections, the

matter was settled and it was agreed that Mr. Vinay Mitter

Mahajan would be the President for one year and thereafter

Mr. Dinanath Mahajan would take over as the President of

defendant No.3. It would thus be seen that as far as

election of General Secretary is concerned that was not the

subject matter of the aforesaid litigation. Hence, reliance on

these all the aforesaid record is misplaced, as far as dispute

involved in the present suit is concerned.

6. For the reasons given in the preceding paragraphs,

defendant No.2 is restrained from holding out or functioning

as the General Secretary of defendant No.3 and defendant

No.1 is restrained from appointing any person as the

General Secretary of defendant No.3 except in accordance

with the Clause 19 of the Constitution as discussed earlier

in this order. It is made clear that till the procedure

prescribed in Clause 19 is adopted, the plaintiff would be

entitled to continue as the General Secretary of defendant

No.3. Of course he would continue only till the next session

of the conference. It is made clear that the plaintiff will

function as the General Secretary of defendant No.3 strictly

in accordance with the constitution of defendant No.3 and

will perform all his obligations qua the President in terms of

the provisions of the constitution of Sabha. Defendant No.1

will also act strictly in accordance with the constitution of

defendant No.3 and will give due recognition to the role and

functions of the General Secretary as stipulated in the

constitution.

The applications stand disposed of.

CS(OS) 1345/2011

Replication can be filed within four weeks.

The parties to appear before the Joint Registrar on

7th September 2011 for admission denial of documents.

The matter be listed before Court on 13th January

2012 for framing of issues.

Dasti.

(V.K. JAIN) JUDGE

JULY 15, 2011 Ag