B.M.Aggarwal vs Punjabi Bagh Club & Anr.
2011 Latest Caselaw 5079 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) NO.385/2011

                                     Date of Decision : 14.10.2011

B.M.AGGARWAL                                    ......Plaintiff
                               Through:   Mr. Ravi Gupta, Sr.Adv.
                                          with Mr.L.Kumar, Advocate.

                                 Versus

PUNJABI BAGH CLUB & ANR.                         ...... Defendants
                      Through:            Mr.P.D.Gupta,   Adv.  for
                                          defendant no.1.
                                          Mr.Deepak Vohra, Adv. for
                                          defendant no.2.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?
2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be reported
       in the Digest ?

V.K. SHALI, J.

IA No. 2575/2011

1. This order shall dispose of IA No. 2575/2011 filed by the

plaintiff under Order XXXIX Rule 1 & 2 read with Section

151, CPC seeking an ad interim relief for appointing an

observer for conduct of elections proposed to be held on

06.03.2011 (now slated to be held on 27.03.2011) and to pass

an ad interim injunction for appointing a receiver, thereby

entrusting him with the power to hold the Annual General

Meeting of the defendant no. 1/Club and thereafter conduct

the elections of the Managing Committee of defendant no. 1

and thereto pass an ad interim injunction restraining the

defendants from collecting the dues and prepare the so-called

final electoral roll.

2. Briefly stated, the facts of the case are that the plaintiff has

filed this second round of litigation against the defendant club

seeking the relief of declaration and mandatory injunction.

Earlier to this, the plaintiff had filed a suit claiming somewhat

similar relief against the defendant club which was disposed

of vide order dated 07.12.2010. The said order in CS(OS) No.

2418/2010 reads as under :-

"(1) After brief submissions, the learned counsel for the defendant no.1 on instructions has very fairly conceded that the defendant no.1/club will reschedule the elections and accordingly, request the Election Officer/defendant no.5 to do the needful by issuing fresh notification for fixing up the revised time schedule for holding the elections. (2) It is further stated that this would be subject to the following conditions:

(a) In the first instance, a notice will be issued to all the defaulting members within a week from the date of receipt of this order requiring them to clear their arrears within the period stipulated in the club rules.

(b) Notices will be sent to all the defaulting members on the last known addresses available on the record of the club, by speed post and it will constitute a sufficient service on them. In addition to this, the club shall publish a general advertisement/notice in two English dailies apart from display on notice board intimating the members of the club that those members who are in arrears can clear the same by the specified date, failing which their names will be struck off from the rolls of the club.

(c) Notices shall be issued under the signatures of the General Secretary of the club. The General Secretary is present in Court and he assures the Court of the requisite cross objector-operation from his side. In case the requisite cross objector- operation is not forthcoming, the Managing Committee may authorize any other office bearer to sign the notices.

(d) Once the stipulated time period for clearance of the arrears is over, the matter will be placed before the Managing Committee which will take appropriate decision in terms of the Club Rules to decide the question as to whether the name of particular members who are in arrears are to be struck off from the rolls of the club or not.

(e) Once this exercise is completed, the list prepared thereafter will constitute the electoral college who will cast their votes for election. This list will be made available to all the persons concerned in terms of the rules, regulations and the byelaws of the club.

(3) The learned senior counsel for the plaintiff as well as learned counsel for the defendant no.1 who is the main contesting defendant, have stated that in view of the above directions, the suit as well as all pending applications may be treated as disposed of.

Ordered Accordingly.

       (4)    Dasti."


                                                               (Sd/-)


       07 DECEMBER, 2010"

3. The grievance of the learned senior counsel Mr. Ravi Gupta is

that after the passing of the said order, this Court had set

down a schedule for the purpose of giving time to the

defaulting members to clear their arrears and hold elections.

As against this, the managing committee of the defendant

club has not only violated the orders passed by this Court on

07.12.2010 but has also tried to tinker with the said order so

as to sub-serve the interest of one particular group and

thereby has flouted the orders.

4. It is contended that in terms of the said order, the defendant

club was required to send individual notices to the defaulting

members and to give them one opportunity to clear their

arrears within a period of 30 days as well as simultaneously

by publishing a general notice in the National Daily both in

Hindi and English, which period had expired on 15.01.2011.

It was after the expiry of the aforesaid period of 30 days that

the matter was to be placed before the managing committee

which was required to take a decision with regard to the

expulsion or non-expulsion of the members who had

defaulted in payment of arrears of their dues.

5. It is contended that instead of expelling the defaulting

members, the managing committee enlarged the time to pay

the arrears and also took a decision that certain category of

members need not pay the arrears and yet their names would

be included in the electoral rolls. It is further contended that

as a consequence of these decisions taken by the managing

committee, the electoral list which will be prepared will not be

a correct list of electors and consequently, the true

representative body of the club would not get elected. It is

accordingly prayed that the elections of defendant no.1 be

conducted by appointing an observer so as to improve the

transparency and impartiality or alternatively, a receiver be

appointed for holding the Annual General Meeting and

thereafter conduct the elections. A restraint order has also

been sought to the effect that no arrears of dues be permitted

to be collected by the defaulting members after 10.03.2011,

as ordered by the Managing Committee.

6. The defendant club has filed the reply to the interim

application and contested the claim. It has raised a

preliminary objection that after having filed the earlier suit

bearing No. 2418/2010, which was disposed of vide a consent

order dated 07.12.2010, the plaintiff has purported to have

abandoned all his reliefs which are sought to be racked up

afresh by the present suit. It is stated that in pursuance to

the directions passed by this Court on 07.12.2010,

individual notice as well as public notice was inserted in

newspaper requiring the defaulting members to clear their

arrears within 30 days which period admittedly expired on

15.01.2011 and, thereafter, the matter was placed before the

Managing Committee on 21.2.2011, which was also contested

by the plaintiff. It is stated that the managing committee in

its wisdom decided that one more opportunity be given to the

defaulting members to clear their dues up to 10.03.2011 and

there was no violation of the rules of the club in this regard.

7. The learned counsel further contended that in pursuance to

the said time having been given up to 10.03.2011, the

electoral roll was to be prepared on 11.03.2011 which has

already been done and the elections are slated to be held on

27.03.2011 as a general body meeting was also fixed in

between.

8. It is stated that elections could not be held on 20.03.2011 on

account of festival of Holi and since the process of election

has already been set into motion and the managing

committee in its wisdom in order to have greater transparency

and impartiality and on the request of the Election Officer,

associated two more members with the Election Committee to

assist him. This decision was taken by the Managing

Committee to which the plaintiff was a party, therefore, there

is absolutely no justification for appointing an observer or a

receiver for the purpose of conducting elections.

9. I have carefully considered the respective submissions made

by the parties and have gone through the entire record.

There is no dispute about the fact that the Court had

disposed of the earlier suit vide its order dated 07.12.2010 by

the consent of the learned counsel for the parties and set a

time schedule for the purpose of defaulting members to clear

the arrears. In pursuance to the said schedule, it is also not

disputed that individual notice as well as public notice were

issued giving a period of 30 days time for the purpose of

clearance of arrears which period expired on 15.01.2011.

After the expiry of the aforesaid period, the managing

committee was directed to take a decision with regard to the

fact that as to whether a particular defaulting member is to

be expelled or not. No doubt, the managing committee has

given another opportunity to the defaulting members to clear

the arrears. The question which arises for consideration is

whether granting of another opportunity up to 10.03.2011 to

the members could be construed as a violation of the Court

order. It may be pertinent here to refer to the relevant rule

dealing with the defaulting members.

"10. Arrears :

(a) Any member who fails to pay his/her subscription in the manner laid down in the rules and regulation shall be called upon by the Hony. Secy. in writing to pay the same within 30 days from the date of issue of such demand. In case the demand is not complied with the matter shall be placed before the Managing Committee who may in their discretion either direct further notice to be isuised to the member in question and /or remove his/her name from the rolls.

(b) No member whose name has been struck off from the list of members for such arrears, shall be readmitted unless he/she pays his/her arrears along with a restoration fee of Rs.100/- within 30 days of the date of which his /her name has been struck off."

10. A perusal of the aforesaid rules will clearly show that in case

notice of demand raised by the General Secretary to clear the

arrears is not responded timely, then the matter is to be

placed before the Managing Committee which has discretion

to give further notice. Thus, the Managing Committee was

well within its power to give further time for clearing the

arrears. Since the time to clear the arrears was expiring on

15.01.2011 and thereafter, the matter was placed before the

Managing Committee, which chose to give them time till

10.3.2011, I feel that there was nothing wrong or improper

much less illegal in case the Managing Committee grant one

more opportunity to the defaulting members to clear the

arrears up to 31.12.2010.

11. Having done so, it has been informed by Mr. Gupta, learned

counsel for the defendant club that the electoral list has

already been prepared and the election schedule has already

been set into motion and the elections are slated for

27.03.2011. In my view, it will not be just and proper for the

Court to appoint an observer or a receiver for the purpose of

conducting the elections as any such appointment at this

belated stage will only have an adverse impact on electors in

exercising their right to free and fair elections. It also cast a

shadow on the impartiality of the

Chief Election Officer. I have been informed that the Chief

Election Officer Mr. B.K. Aggarwal who is conducting the

election had requested two more members of the Club to be

associated in the election process, which was acceded to by

the Managing Committee unanimously of which petitioner

was a part. It is further stated that Mr.B.K.Goel was also the

Chief Election Officer for the previous elections which were

held in 2008 and if there was no issue regarding his

impartiality at that time how it could be an issue now.

Therefore, I feel that at this belated stage, appointing any

court observer or a receiver will tantamount to undue

interference in the domestic affairs of a club which is to be

run essentially by the general body or through its

representative body which is known as Managing Committee

and once the election process is complete, in case the plaintiff

still feels that there is any illegality or violation of the

statutory rule or regulation of the club which has not

permitted a proper representative body of the club to come

into position, he would be free to redress his grievance.

12. For the reasons mentioned above, I feel that the plaintiff has

not been able to make out a prima facie good case and the

balance of convenience is certainly not in favour of the

plaintiff as the process of election has already been set in

motion and is at an advanced stage. There is no irreparable

injury likely to be caused to the plaintiff. On the contrary, in

case the elections are stayed or somebody from outside is

appointed as an observer or a receiver, it is not going to send

a correct signal to the members of the club, whose decisions

may get influenced while exercising franchise. I accordingly

dismiss the application of the plaintiff.

13. Let the written statement be filed by the defendant within 30

days.

14. Post the matter before the learned Joint Registrar for filing of

written statement on 27th May, 2011.

V.K. SHALI, J.

OCTOBER 14, 2011 MA