Dr. Shikhar Jain & Ors. vs National Neonatology Forum & Ors.
2016 Latest Caselaw 2843 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Judgment reserved on:           31.03.2016

%                                         Judgment delivered on:          19.04.2016

+       CS(OS) 3431/2015
        DR SHIKHAR JAIN & ORS                                      ..... Plaintiffs
                                 Through:        Mr. Anshu Mahajan, Mr. Karan Arora
                                                 & Mr. Praveen Singal, Advocates.

                                 versus

        NATIONAL NEONATOLOGY FORUM & ORS ..... Defendants
                                 Through:        Mr. Sudhir Nandrajog, Senior
                                                 Advocate along with Mr. H.S. Kohli,
                                                 Advocate.

        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI

                                     JUDGMENT

VIPIN SANGHI, J.

I.A. No. 25235/2015

1. The plaintiffs have filed the present suit to seek the following reliefs:

"i. Pass a decree of Declaration declaring the Minutes of Meeting of Constitutional Committee of Defendant no.1 dated 27.09.2015 and the recommendations of Constitution Committee dated 27/ 29.09.2015 as void, illegal and are declared as null and void and set aside;

ii. Pass a decree of declaration declaring the Minutes of Meeting of Governing Body dated 30.11.2015 of Defendant no.1 are void and are set aside:

iii. Pass a decree of declaration declaring that amended MOA as approved in General Body Meeting dated 17.12.2011 at Chennai and consequent approval of Minutes at the General Body Meeting held in Delhi are valid and that the Defendant no.1 shall be governed in terms thereof."

(Emphasis supplied)

2. While dealing with the preliminary objection of the defendant with regard to the evaluation of the suit and affixation of Court Fees on the plaint by the plaintiffs, this Court on 28.01.2016 concluded that the plaintiffs have actually sought the relief of injunction by guardedly seeking the relief that "defendant No.1 shall be governed in terms thereof". On that basis, this Court upheld the preliminary objection of the defendant, and, consequently, at that stage, the plaintiffs under took to make up the deficiency of Court Fees.

3. By the present application moved under Order XXXIX Rules 1 to 3 CPC, the plaintiffs seek the following interim reliefs:

"(a.) Restrain the defendant No.1 and 2 from in any manner discussing either the constitutional amendments or any issue with respect to legality of amendments made to the MOA in 2011 or the minutes of meeting or recommendations of Constitutional Committee dated 27/ 29.09.2015 and recommendations/ minutes of Governing Body Meeting dated 30.11.2015; and/ or

(b) Restrain the defendant No.2 from conducting the proceedings of General Body Meeting and from continuing as President of defendant No.1 after 31.12.2015;

(c) Further restrain defendant No.2 from conducting the affairs of defendant No.1 at the General Body Meeting to be held on 12.12.2015 and the same be conducted by a neutral person appointed as Local Commissioner by the Court as Court Observer;

(d) Restrain the defendant No.2 from terminating the membership of the plaintiffs and further restrain the defendant No.2 from preventing the plaintiffs to attend and participate in the General Body Meeting;"

4. The case of the plaintiffs is that they are renowned and eminent doctors with specialization in the field of pediatrics and neonatology, i.e. medical care of new born infants, specially the ill and premature new born infants. National Neonatology Forum (NNF)/ defendant No.1 is a society registered under the Societies Registration Act, which was formed in 1982 to give a voice to the requirements of specialists in the field of neonatology.

5. Plaintiff No.1 states that he is a life member of defendant No.1 since 1982, i.e. since the formation of the defendant society. He was also the President of the defendant society for two years, i.e. 2013-14. Plaintiff No.2 is a Professor of Pediatrics and Neonatology at Institute of Medical Sciences, BHU, Varanasi. He states that he is a member of the Governing Body of the defendant society from North Zone. Plaintiff No.3 is currently working as Professor in the Department of Neonatology at Lady Harding Hospital, and it appears that he is the member of the Governing Council of defendant No.1 society. Defendant No.2, it is stated, was elected as the President-Elect of defendant No.1 under the constitution, that came into force in 2012, at which time defendant No.2 was the Secretary General of defendant No.1. As per the election rules applicable to the elections held in

2012 and the results declared thereunder, defendant No.2 was elected for the post of President-Elect for the tenure for the year 2013-14, and the President for a term of one year, i.e. the year 2015.

6. The grievance of the plaintiffs, in short, is that defendant No.2 clandestinely, by flouting all regulations, laws and procedure has sought to extend his tenure as the President of NNF to two years, i.e. for the years 2015 and 2016, by bulldozing all those who are seeking to oppose him.

7. The submission of learned counsel for the plaintiffs is that defendant No.1 communicates with its members through a journal called "NNF Today". While defendant No.2 Dr. Ajay Gambhir was the Secretary of defendant No.1 and its Editor, in Volume-I, Issue No.1 November 2011 Edition of the said journal, defendant No.2 himself circulated the proposed amendments to the NNF constitution. The notice circulated to the members of the NNF by defendant No.2 in the said journal read as follows:

"Proposed Amendments to NNF Constitution

Dear All NNF Members,

The Constitution Amendment Committee of National Neonatology Forum under the chairman ship of Dr. Santosh K Bhargava with Dr. Arvind Saili & Dr. H. Chellani as Coordinators and Dr. B.C. Chapparwal, Dr. D.K. Guha, Dr. Ajay Gambhir, Dr. Nigam Prakash Narayan, Dr. Girish Gupta and Dr. P.P. Maiya as members had after a lot of deliberations had suggested many changes in our constitution and was approved and passed in favour Governing Council meeting held in 2009, 2010, 2011. The amendments will be discussed and decided during the Annual Conference of NNF at Chennai in December 2011 during the General Body meeting. Please find the details suggested amendments and any other

suggestions should reach office of the secretary by 30 th Nov 2011 even by email.

Dr. Ajay Gambhir

Secretary NNF

Email:[email protected],[email protected],[email protected] fmail.com"

(Emphasis supplied)

8. Following the said notice, the existing Memorandum of Association (MOA) of NNF, along with the proposed amendments prepared in 2008 were also printed in the said journal. Thus, it appears that the proposed constitutional changes had been approved and passed by the Governing Council of NNF on repeated occasions, i.e. 2009, 2010 & 2011 and, the proposal was to discuss and decide upon the same in the Annual Conference of NNF, to be held in December 2011 at Chennai at the General Body Meeting.

9. Learned counsel for the plaintiffs submits that the pre-existing Rule/ Regulation 7, which had been in force since 1988 provided for, inter alia, filling up the post of the President through elections by postal secret ballot every alternate year, for a period of two years. The amendment sought to be introduced in 2008, however, provided as follows:

"7. Election of office bearers and members of governing body: (Amended clause, 2008)

Following office bearers will be elected by secret ballot by post every year for a period of 1 year except Secretary General and Treasurer who would be elected every two years:

i. President (Only in the first election after this amendment comes into force).

        ii.     President - Elect

        iii.    Ten members of governing body (two from each zone)

elected by the election process for a period of next 1 year.

All members of society will be eligible to seek election and to propose, second the nomination of candidates and to vote. And ordinary member will exercise this right only of she/ he has paid membership dues date till year of election."

(Emphasis supplied)

10. Similarly, Rule/ Regulation 8 as it pre-existed since its amendment in 2004 provided that the society shall have Governing Body consisting of, inter alia,

"i. President

ii. President-Elect iii. Secretary

iv. Immediate Past President

v. Joint secretary cum treasurer

vi. Five member of governing body nominated by the president for a period of next 2 years"

(Emphasis supplied)

11. Under the proposed amendment of 2008, clause 8, inter alia, provided:

        "a.     The president - tenure would be for 1 year





         b.      The president-elect, after tenure of 1 year will

automatically assume charge of president for a period of next 1 year.

c. The Secretary General and Treasurer of the Society shall belong to the Union Territory of Delhi (as the registered office of NNF is located in the union territory of Delhi as per clause 2).

The Secretary General and Treasurer will be elected every alternate year for a period of 2 years.

Office bearer of the society will be entitled for more than one term of 2 years in a particular post."

(Emphasis supplied)

12. Learned counsel submits that the General Body Meeting of NNF was held, as scheduled, at Chennai Trade Convention Centre on 17.12.2011 at the Annual Conference. In the said meeting, the then Secretary General Dr. Ajay Gambhir - defendant No.2 herein, inter alia, informed that the constitutional amendments were circulated well in advance for comments and deliberations. During the General Body Meeting, various issues regarding the amendments were raised by members. The General Body took serious note of the fact that the constitutional amendments which were made in 2008 had not been circulated to the public at large for the last three Annual General Meetings despite being passed by the Governing Council meetings for three years. The amendments were passed with corrections in typing and interpretations after long deliberations and discussions with over 90% of the members deciding and voting in favour of the amendments.

13. In support of this submission, learned counsel for the plaintiffs has placed reliance upon firstly, Volume 1-Issue 3. January 2012 edition of the

Journal NNF Today, which contained and circulated the Memorandum of Association along with the Constitutional Amendments, and the Volume-1, Issue No.12 October 2012 publication of the journal NNF Today which, inter alia, circulated the minutes of the General Body Meeting held on 17.12.2011. The said minutes, inter alia, record:

"2. Revised NNF Constitution: Dr Gambhir informed that it has been circulated within the stipulated time and will be discuss in the GB to be held on 17/12/2011. Dr. Nair and Dr. Shikhar Jain pointed out few printing errors and interpretation which was agreed by all.

Lot of issues regarding the amendment were brought up by few members like Dr. Ramesh Agarwal, Dr. VK Paul and Dr. Sushma Nangia. The general body took serious note that this constitutional amendment were made in 2008 and were not circulated to public at large for last three annual general body despite being passed by all governing council meetings during last three years. Dr. paul & Dr. sushma were part of these committees who have cleared it already(sic.). The amendments were passed with above corrections in typing and interpretations after long deliberations, discussions with over 90% of the members deciding and voting in favour of these amendments."

14. It is pointed out that defendant No.2 while acting as the Editor of NNF Today journal compiled the said journal and circulated the same to all the members.

15. Consequently, post amendment of the constitution of NNF, the tenure of the President stood reduced from 2 years to 1 year.

16. Learned counsel for the plaintiffs next draws attention of the Court to the e-mail sent by defendant No.2 acting as the Secretary, NNF on

23.06.2012 to one Dr. Piyush Gupta, communicating to him that he had been nominated as the Election Officer by the NNF Governing Body in its meeting held on 16 - 17.06.2012. He sought consent of Dr. Piyush Gupta to conduct the elections and also stated that "I am sending you the latest NNF Constitution by courier for your perusal it has already been circulated with the NNF Bulletin". (Emphasis supplied)

17. Learned counsel for the plaintiffs submits that the NNF constitution circulated with the NNF Bulletin referred to in the said email of defendant No.2, was the one circulated by defendant No.2 himself in the January 2012 issue of NNF Today, in his capacity as the Secretary General and Editor of NNF Today.

18. Learned counsel for the plaintiffs submits that consequent upon the approval of the amendments by the General Body, the same stood enforced. Consequently, when the elections for the post of President-Elect 2013-14 (President for one year - 2015) were to be held, defendant No.2 filled up the nomination form which clearly stated: "President for one year - 2015". In this regard, learned counsel for the plaintiffs has drawn attention of the Court to the nomination form filled by defendant No.2 on 06.08.2012, which reads "Election To The Post of President Elect-2013-14 (President is for one year -2015)." Learned counsel for the plaintiffs has drawn the attention of the court to the results of the election of NNF held in 2012 which were circulated on 08.09.2012 by the then President, NNF, Dr. M.C.K.Nair. According to the said results, defendant No. 2 was appointed as the President Elect unopposed. The election results published by Dr. Piyush Gupta, Election Officer, on 24.08.2012 declared defendant No. 2 as the

President Elect, elected for a period of one year. Counsel for the plaintiffs submits that the ministerial requirement of communicating, inter alia, the constitution of the NNF to the Registrar of Societies was also made on 26.08.2015, and Dr. Vikram Datta, the General Secretary of NNF circulated the same along with other documents to the Registrar of Societies.

19. Learned counsel for the plaintiffs submits that after defendant No. 2 was declared successful in the elections to elect the President Elect for 2013- 14 and President for one year 2015, and he took over as the President of NNF, defendant No. 2 with a view to perpetuate his term even beyond the period of one year sought to constitute a constitutional committee under his own chairmanship. Learned counsel submits that constitution of the said constitutional committee was wholly illegal, since the constitution had already been amended as noticed hereinabove with the approval of the general body in the AGM held on 17.12.2011. This Committee constituted by defendant No. 2 serve his own self interest, purportedly unanimously opined, 'that legal tenure of the current President Dr. Ajay Gambhir is of two years i.e. 2015-16." It was also decided by this constitutional committee to put, inter alia, the said question before the AGM for a final verdict. In this regard, counsel for the plaintiffs has referred to the 'recommendations for NNF constitution' circulated by defendant No. 2 as the President, NNF, Dr. Sunil Mehendiratta, Secretary, NNF, and Dr. Mahaveer Prasad Jain, Co-Chairman of the constitution committee. The aforesaid opinion was allegedly formed by the constitutional committee on 29.09.2015 at Hotel Piccadily, Janakpuri, Delhi.

20. At this stage itself, I may note that in the aforesaid background, the plaintiffs filed this suit along with the present application on 08.12.2015. The plaint has been verified on 07.12.2015, and affidavits in support of the plaint were also sworn on 07.12.2015. The suit and the interim application were listed before Court on 10.12.2015. Since the learned Judge was not holding the court, the same were adjourned to 11.12.2015. On 11.12.2015, the Court issued summons in the suit returnable on 19.02.2016, and notice in the aforesaid application returnable on 06.01.2016. However, no ex parte ad interim injunction was granted by the Court.

21. Learned counsel for the plaintiffs submits that post the filing of the suit, the Annual General Body meeting of the NNF was held on 12.12.2015 at Bhubaneswar. In the said meeting, the general body of NNF after discussion passed the resolution that Prof. B.D.Bhatia, elected NNF President for the year 2016 should takeover from 01.01.2016 and that elections for the governing body 2016 should be held at the earliest as per the amended constitution 2011. Counsel for the plaintiffs submits that defendant No. 2 deliberately sought to scuttle the said meeting by seeking its adjournment sine die, which was rejected by the general house. The plaintiffs have placed on record the minutes of the said annual general body meeting stated to have been signed by 20 members.

22. Counsel for the plaintiffs submits that there is no denial by the defendants of the material and relevant averments in the plaint, in their written statement. In this regard, counsel for the plaintiffs has drawn the attention of the court to paragraphs 5 and 6 of the plaint, which read as follows:

"5. The defendant No. 2 is at present the President of Defendant No. 1 and was elected under the amended constitution that came into force in 2012 during defendant No. 2's tenure as Secretary General of defendant No. 1. As per the elections held in 2012 and results declared therein under, the defendant No. 2 was elected for post of President for a tenure of one year for the year 2015.

6. The defendant No. 2 by flouting all regulations, laws and procedures is trying to increase his tenure to two years by bulldozing all those who are trying to oppose him. This defendant no. 2 is doing so despite:

 Being the member of Constitution Committee that drafted the amendment to Memorandum of Association (MOA) of defendant No. 1, one of amendments to Clauses 7 and 8 whereby tenure of President was reduced from two years to one year;

 Being the Secretary General of Defendant No. 1 who circulated the amendments for approval as agenda for General Body Meeting to be held in December, 2011 at Chennai;

 Being the Secretary-General who got approved the said amendments in the General Body Meeting dated 17.12.2011, at Chennai;

 Being the Secretary General who notified the amended MOA in the January edition of Journal-NNF Today of Defendant No. 1;

 Being the Secretary General who notified the amended MOA along with Annual Report and Minutes of Meeting of Chennai General Body Meeting indicating that amendments along with corrections to typing and interpretation were approved by more than 90% of members present at General Body Meeting;

 Being the General Secretary in whose tenure in 2012, the Minutes of Meeting of Chennai General Body Meeting were approved;

 Being the Secretary General who sent the amended MOA to Election Officer Dr. Piyush Gupta in 2012 and as per his instructions elections were held under amended MOA;

 Being the first person to fill his nomination papers (seven eight nominations) each nomination clarifying that he was contesting for tenure of President for one year i.e.2015 and President Elect for 2013-2014;

That despite the aforesaid, the defendant No. 2:

 Has along with four members of present Governing Body as members constituted a Constitution Committee and has become the Chairman of said Committee and thereby has become Judge of his own cause;

 Has proposed his own nominees as Members and did not allow Plaintiff No. 1 and 3 as Members of said Committee despite their being members of governing body of Defendant No. 1. The Plaintiff No. 1 and 3 were kept out as they were in full knowledge of amended constitution being office bearers from 2011-2014 including President and Secretary for years 2013-2014 when 2014 elections were held. Plaintiff No. 3 actually has been deprived of his constitutional position as office bearer and GB member and not invite to attend these meetings;

 Has got the constitution committee to recommend that all amendments after 1982 were not in operation and that his tenure would be two years. Such a report is ex facie void ab initio as it is the creation of person acting as Judge of his own cause;

 Has failed to circulate the report of Constitution Committee to Members as required Clause 16 of MOA of the Act, although the Agenda prescribes at item No. 11 Constitutional Amendment without even mentioning the nature of such Constitutional Amendments;

 Has therefore ensured that the Members shall come to the General Body Meeting unaware of what the proposed amendments are;

 Has disallowed the plaintiff No. 3, who has been the vocal opponent of increase of tenure of President to two years, to attend the meeting of Governing Council/Body on 30.11.2015,

 Has waited till the plaintiff No. 1 along with five other members left the Governing Body meeting on 30.11.2015 to get the recommendations of Constitution Committee approved;

 Has threatened both the plaintiffs No. 1 and 3 with Police arresting them for disclosing to public at large the events of Governing Body Meeting held on 30.11.2015;

 Has threatened the Plaintiffs, as Plaintiff No. 3 had disclosed his not being allowed to attend the meeting dated 30.11.2015 as the defendant No. 2 wanted to illegally get the resolution passed to increase his tenure to two years and plaintiff No. 1 had rejected the plaintiff No.3's assertion that Governing Body had passed any resolution recommending increase of tenure of President to two years till 5 pm when he and five other members had left the Governing Body Meeting;

 Has till date of filing of this suit failed to circulate the Minutes of Governing Body dated 30.11.2015 despite his being asked to do so and has confirmed that minutes are not ready. The resolution passed by Governing Body is

to be approved by General Body Meeting on 12.12.2015."

23. In their written statement, the defendants have stated as follows:

"5. That the contents of para no. 5 of the plaint are not disputed to the extent that the defendant No. 2 was elected as President elect of the defendant society. However, it is vehemently denied that the amendment in the constitution of the defendant society had been adopted and the same had come in force in the year 2012. It is vehemently denied that the tenure of office of the president or secretary of the defendant society could have been governed in terms of amendment made in the constitution of the defendant society in the year 2012. As explained hereinabove that the need for amendment in constitution of the defendant society was felt way back in the year 2002-2003. However, a committee was constituted to this effect for the first time in the year 2008, which proposed various amendments needed in the constitution of the defendant society but, the same could not be deliberated, discussed or adopted till of late 2011, when this process was reinitiated with the efforts of the defendant no.2, who had been the then secetary general of the defendant society in steward ship of Dr. M.K.C.Nair, the then President of the Society, as such, the drat copy of proposed amended constitution was floated for deliberations and soliciting suggestions of the members, was circulated to the members through news bulletin of the defendant society, in November 2011, so that the same could have been deliberated in the Annual General Body Meeting of the defendant society, scheduled at Chennai in 2011. The minutes of Annual General Meeting of the defendant society suggests that the draft amended constitution circulated to the members had errors and typographical mistakes which needed to be rectified. Though the minutes as recorded suggest, having passed the proposed amendments with corrections but, the corrected copy was never placed before any further General Body, for its ratification or approval nor was forwarded to Registrar of Society in terms of section 12 of the Constitution of the Society or in terms of

mandate of procedure set out by the constitution committee headed by Dr. Guha, in the year 2008, indicates that the aforesaid amendments deliberated in the AGM held in Chennai in 2011 was neither passed nor adopted, to bind the society further, to follow a new path of electing its governing body, scribed in the proposed amended constitution. The aforesaid fact is more manifested in the subsequent events, when the aforesaid issue of amendments was being deliberated & discussed at various levels, including in the year 2013 & 2014, when the society was being led by the plaintiff no. 1 as its president and plaintiff no. 3 as its secretary general, when the status of amendment was on moot, before the election officers, appointed by the society, to conduct election, pursuant thereto a pre-election tribunal was constituted to evaluate the significance and status of the amendments in constitutions of the defendant society. It was observed that the status of amendment in constitution was in the state of confusion, which can be clarified, if the tribunal is assisted with information, spelled out in the following terms:-

Pursuant to the aforesaid suggestion from the tribunal, the then Governing Body being led by the plaintiff no. 1 as its president solicited a legal opinion. However, before getting legal opinion or deliberating thereon or the outcome of final observations from the election tribunal, the defendant society published election notification, in an arbitrary manner. As a matter of fact even till 2015, the status of the amendment in the constitution of the defendant society was on moot at different levels, pointed out herein above. As such, the averments made in para under reply that the election of the defendant no. 2 had taken place in terms of amendment of the constitution of the defendant society, in the year 2011. However, it is most humbly clarified that in absence of the amendments in constitution, the term of office of the president of the defendant society was for a period of two years, which cannot be reduced or enhanced without making amendments in the constitution of the society as per the law. The plaintiffs be put to the strict proof of the averments made in para under reply.

6. That the contents of para no.6 of the plaint are not disputed to the extent that the defendant No. 2 had been associated with the proposed amendment in constitution of the defendant society as taken at various stages, scribed in para under reply. However, it is vehemently denied that the defendant No. 2 is flouting on the regulations laws and procedures and is trying to increase his tenure to the office of President of the defendant society to two years, by bulldozing all those who are trying to oppose him. Contrary to the allegations, the defendant no. 2 had been one of the founder members of the defendant society, was more devoted to take up the cause and promote the aims and objects of the defendant society, by adopting different programs and associating valuable patrons to promote the cause undertaken by the defendant society. It is not out of place to mention that during the tenure of the defendant no. 2 as its president, the defendant society has come in the central frame, captivating the state functionaries to promote the programs taken by the defendant society, in coherence to the aimed and objects for which, it had been constituted. ... ... ."

(Emphasis supplied)

24. Learned counsel submits that the basic facts are admitted by the defendants. The claim made by the defendants that the amendments of 2008 were not approved by the General Body of Members in the AGM of 27.12.2011, is patently false to the record. The legal submissions of the defendant premised on Section 12 of the Societies Registration Act are misplaced. Similarly, learned counsel for the plaintiffs submits that there is no denial by the defendants of the material averments made in para 36 of the plaint in the written statement of the defendants.

25. Learned counsel for the plaintiffs submits that the defendants have sought to place reliance on Section 12 of the Societies Registration Act in

support of their plea that the amendments approved by the general body in the meeting held on 17.12.2011 had not come into force merely because they have not been circulated to the Registrar of Societies. Learned counsel submits that the said section has no application to the facts of the case. Section 12 is applicable only when the governing body of the Society proposes to alter or extend or abridge the purpose for which the Society is constituted or to amalgamate the society either wholly or partially with any other society. It is submitted that the purpose of the proposed amendments, which were approved by the general body on 17.12.2011, was neither to alter, extend or abridge the purpose for which NNF has been constituted nor to amalgamate NNF partially or wholly with any other society. Section 12 of the Societies Registration Act reads as follows:

"12. Societies enabled to alter, extend or abridge their purposes.- Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose to or for other purposes within the meaning of this Act, or to amalgamate such society either wholly or partially with any other society, such governing body may submit the proposition to the members of the society in a written or printed report, and may convene a special meeting for the consideration thereof according to the regulations of the society;

but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members

present at a second special meeting convened by the governing body at an interval of one months after the former meeting."

26. In support of this proposition, counsel for the plaintiffs has also placed reliance on the judgment of this Court in Hamdard University Teacher's Association Vs. Union of India 2013 (199) DLT 618. In this case, apart from taking note of Section 12 of the Societies Registration Act, the Court also considered the relevant provisions/rules/guidelines contained in Rules 16 and 40 of the University, inter alia, in respect of Section 12. The observations made in the said judgment read as follows:

"5. (i) A reading of Section 12 of the Societies Registration Act, 1860 shows that the said provision has been made for altering the purposes and the objects for which a society is framed. A very strict procedure is provided for amendment of the purposes and objects inasmuch as surely it cannot be disputed that the very basis for existence of a society is its objects and purposes. For change of objects and purposes therefore a very strict requirement exists in Section 12 of the agenda being passed by the society with 3/5th of the members voting in favour of the amendment and also of a second meeting being convened of the governing body at an interval of one month after first meeting, for giving confirmation to the voting made in the first meeting which brought about amendment to the objects and purposes of the society.

(ii) The question is that whether there should be a literal interpretation and application of Section 12 of the Societies Registration Act, 1860 when a deemed University such as the respondent No. 6 seeks to amend those rules and regulations which do not pertain to objects and purposes of the society which is running the deemed university.

In my opinion, a literal interpretation of Rule 40 read with Section 12 that there must be held two meetings of the governing body of the society and only whereafter it can be said that the amendment in terms of Rule 40 has been carried out, is not the correct interpretation for amending those rules which do not pertain to the objects and purposes of the society. In my opinion, Rule 40 has to be interpreted to mean that only the substance of procedure under Section 12 of the Societies Registration Act, 1860 will have to be followed whenever there is an amendment to be brought about to the rules and regulations of the respondent No. 6 not pertaining to objects and purposes or same genus i.e. though there must be compliance of 3/5th of the members of the society agreeing to bringing about the amendment in the rules and regulations, but as regards those rules and regulations which do not pertain to the objects and purposes of the society, then in my opinion the procedure of having only one meeting should be taken to be sufficient and I would not like to read Rule 40 in such a technical manner so as to read in compulsory two meetings of the governing body of the society for the same subject. After all what is the purpose which is achieved by requiring a second meeting of the governing body of the society for amendment to rules which are not in the nature of crucial amendments like towards the objects and purposes of the society. After all there are bound to be amendments to those rules which are not fundamental to the existence of the University, and for which it would be too much to require two meetings for such minor issues."

(Emphasis supplied)

27. Thus, it is submitted that the procedure prescribed in Section 12 has no application in respect the amendment made to the constitution of NNF by the general body in its meeting held on 17.12.2011.

28. Learned counsel for the plaintiffs submits that defendant No. 1- NNF repeatedly sought legal opinions on the issue whether the tenure of

defendant No. 2 as the President would be for one year i.e. 2015 or for two years. The legal opinion returned was clearly to the effect that the tenure of defendant No. 2 as the President under the Constitution is only one year i.e. for the year 2015. In spite of aforesaid being the position, defendant No. 2 is hellbent on somehow perpetuating his rein as the President of defendant No. 1 beyond the period of one year. It is submitted that he is a usurper of the said office and by hook or by crook, he is seeking to perpetuate his illegal continuation as the President of NNF. The constitution of the constitutional committee by defendant No. 2 under his own leadership is a self serving exercise. The said constitutional committee had no basis to render the opinion that the tenure of defendant No. 2 is for two years i.e. 2015-2016, and the said opinion is of no avail. Similarly, the annual general body meeting purportedly held by the defendants after the filing of the present suit, which, according to the defendant, has perpetuated the illegal continuation of defendant No. 2 as the President, NNF, is of no avail. It is submitted that even if the constitution of NNF were to be again amended, so as to restore the tenure of the President of NNF to two years, the same would take effect only after any such amendment is made, prospectively, and cannot give a further lease of life to defendant No. 2 to perpetuate his control beyond the period of one year, which is already expired.

29. On the other hand, the submission of learned senior counsel for the defendants, firstly, is that the plaintiffs have not sought any relief of injunction in the suit and, therefore, no interim injunction can be granted by the court. This submission does not hold good in view of what has been

observed above. Mr. Nandrajog further submits that there is no amended constitution filed by the plaintiffs, as none exists. He submits by reference to the averments made in para 12 of the preliminary objections that even the elections which were notified in 2012 for election of office bearers of the NNF were not in consonance with the amendments proposed in the constitution of the defendants society. The amendments to the constitution were not adopted or enforced in the general body meeting of the NNF held at Chennai on 17.12.2011. Had the said amendments were adopted, the election notification would have been issued for election of 10 members of the governing body - two from each of the five zone. However, elections were notified only for the post of President Elect, Secretary General and Treasurer. No election was conducted for the members of the governing body in terms of the proposed amendments in the constitution of the defendant society. The nominations were accepted as per the past practice i.e. as per the prevailing constitution of the defendant society dehors the proposed amendment of 2008. The said election notification was issued when plaintiff No. 1 was the President of NNF and plaintiff No. 3 was its Secretary General. The election notification had the tacit consent of the plaintiffs.

30. Mr. Nandrajog submits that it is evident from the minutes of the annual general body meeting held at Chennai on 17.12.2011 that there were several printing errors in the amendments. The AGM deliberated on the proposed amendments by incorporating corrections in the draft constitution, but the corrected draft constitution of the society has not seen the light of the day till date, as the same is neither in the records of the society nor had been

forwarded to the Registrar of Societies in terms of the recommendations of the constitution committee, or as per Section 12 of the Societies Registration Act. In this regard, he has made a specific reference to the minutes of the annual general meeting held on 17.12.2011 relied upon by the plaintiffs. The said minutes, inter alia, record, 'Dr. Nair and Dr. Shikhar Jain pointed out few printing errors and interpretation which was agreed by all.'

31. Mr. Nandrajog submits that the plaintiffs have not filed a replication to deny the specific averment made by the defendants in their written statement to the aforesaid effect. He has also placed reliance to the notice issued by the NNF for holding the annual general body meeting on 15.12.2012. One of the agenda items was the proposed constitutional amendments. Mr. Nandrajog submits that notice dated 15.12.2015 was issued, inter alia, in the name of Dr. Vikram Datta, who is the General Secretary, NNF and is plaintiff No. 2. Thus, the plaintiffs cannot claim that the constitutional committee, appointed under the Chairmanship of defendant No. 2 - which held its meeting on 29.09.2015, did not form the opinion that the tenure of the current President Dr. Ajay Gambhir is two years, i.e. for the years 2015-2016.

32. Mr. Nandrajog submits that the minutes of the meeting of the general body held on 17.12.2011 themselves show that the proposed amendments of 2008 were still under consideration-circulation, and had not been approved by the general body. In this regard, he refers to the minutes recorded against agenda item No. 7, which reads as follows:

"Agenda No.7: Any other business notice of which has been circulated with Agenda:

 Proposed Constitutional amendments Agenda seven refer to constitutional committee

Dr. VK Paul invite members to bring out any other suggestions adhere to all procedures, enough time.

Dr. MKC Nair amendments were passed in last GBM do we need again. Dr. Shikhar Jain said that we will invite and circulate all amendments."

(Emphasis supplied)

33. He further points out that in the governing body meeting held on 12.12.2013 at Hyderabad under the Presidentship of Dr. Shikhar Jain, plaintiff No. 1, wherein Dr. Vikram Datta, plaintiff No. 3 was also present in his capacity as Secretary of NNF, the governing body observed as follows:

"Amendments in constitution were discussed and it was pointed that some changes (mostly as printing errors) have crept in from what was discussed and passed. Decided to check by President and President elect within 3 months for errors and finalize the amendments passed in Chennai GBM and Governing body."

34. Mr. Nandrajog has also referred to the minutes of the general body meeting on 06.12.2014 at Patna, Bihar, under the Presidentship of defendant No.2, which show that the members of defendant No.1 Society were themselves not clear whether the amended constitution has come into force or not, as amended on 17.12.2011. Mr. Nandrajog submits that the present President Elect-Dr. B.D.Bhatia, who would have taken over as President on 01.01.2016, if the term of defendant No. 2 as President was one year, is not supporting the case of the plaintiffs. On the contrary, even he is supporting the case of the defendants.

35. Mr. Nandrajog submits that in the governing body meeting of NNF held on 29.03.2015 at New Delhi, the plaintiffs also participated. To the submission of plaintiff No. 3 Dr. Vikram Datta, that the amended constitution had been submitted after approval in the office of Registrar of Societies before the elections, the governing body noted that as per office record, nothing has been sent to the Registrar's office and only unofficially, it may have been sent after the declaration of the election. Once again, it was reiterated that the general body had approved that no amendment had been made procedurally and legally. The constitution committee had been constituted during this meeting. Mr. Nandrajog has also sought to place reliance on the attendance register in respect of the meeting of the governing council held on 29.03.2015 which shows that plaintiffs No. 1 and 3 had participated in the said meeting. He submits that in the meeting of the constitution committee held on 27.09.2015, the said constitutional committee, inter alia, observed:

"1. The only constitution or Memorandum of association approved by Statute i.e. Registrar Societies is the original document presented to the office of Registrar, Societies in 1981 (Letter of Deputy Commissioner of Industries, Societies/PIO dated 8.9.2014, No. RFS/S-12637/RTI/10347, addressed to Dr. Sushil Srivastava, in response to his letter dated 3.9.2014 for some information under the RTI Act). The concerned officer under Point 1 wrote, "As per the record available in the file record no amendment has been certified after inception of the society till date. As the record available with this office the society vide registration number S-12637 is registered in the name of "NATIONAL NEONATOLOGY FORUM" having its

registered office at Department of Pediatrics, Safdarjung Hospital, New Delhi. Copy of the complete file is enclosed."

Point 4. Yes, as per Section 12 and 12A, any amendment done needs to certified by the Registrar, Societies."

(Emphasis supplied)

36. Mr. Nandrajog submits that the minutes of the AGM held on 12.12.2015 produced by the plaintiffs are not genuine. They have been signed by only 19 members as opposed to over 100 who signed the minutes of meeting produced by the defendants. Mr. Nandrajog has also referred to an email communication dated 17.01.2016 sent by Dr. Krishna Diwakar to defendant No. 2, wherein he has disowned his signatures attributed to him in the minutes relied upon by the plaintiffs. He has also drawn the attention to the email communication sent by Dr. Baldev Bhatia, the present President-

Elect, wherein he has disputed the plaintiffs version of the AGM held on 12.12.2015.

37. Lastly, Mr. Nandrajog has submitted that the grant of the interim relief prayed for by the plaintiffs, at this stage, would tantamount to decreeing the suit, which cannot be done by way of an interim order without the parties proceeding to trial.

38. From the above narration, it appears that the defendants are not in a position to dispute the following facts:

(a) That the constitution of NNF as amended in 1988 provided that the tenure of the President shall be for a period of two years;

(b) That the constitution amendment committee of NNF under the chairmanship of Dr. Santosh K. Bhargava with Dr. Arvind Saili & Dr. H.Chellani as Coordinators and Dr. B.C. Chapparwal, Dr. D.K.Guha, Dr. Ajay Gambhir-defendant No.2, Dr. Nigam Prakash Narayan, Dr. Girish Gupta and Dr. P.P.Maiya, as members after deliberations suggested changes in the constitution which were also approved and passed in the governing councils meetings held in 2009, 2010 and 2011.

(c) That defendant No. 2 being the Editor of NNF Today, and Secretary, NNF put to notice the members of NNF that the proposed amendments in the constitution will be discussed and decided during the annual conference of NNF to be held at Chennai in December, 2012 during the general body meeting. This notice was published in the publication of NNF Today i.e. Vol. 1, Issue No. 1, December 2011. In this journal itself, the existing provisions in the constitution, as well as the proposed/amended clauses of 2008-in respect whereof the approval was proposed to be sought in the general body meeting at the annual conference of NNF at Chennai in December, 2011, were also circulated.

(d) That under the amended clauses 7 and 8, sought to be introduced by the constitution amendment committee of 2008, the tenure of, inter alia, the president was reduced from two years to one year.

(e) That the general body meeting at the annual general meeting held on 17.12.2011 at Chennai passed the amendments with corrections in

typing and interpretations after long deliberations and discussion with over 90% of the members deciding and voting in favour of the amendments.

(f) That the amended constitution i.e. the Memorandum of Association was circulated in NNF Today journal Vol. 1 Issue 3 January 2012 issued under the editorship of Dr. Ajay Gambhir, the then Secretary, NNF. The same, inter alia, contained the clauses which show that the tenure of the President NNF, post amendment, was 1 year.

(g) That defendant No. 2 himself communicated to Dr. Piyush Gupta vide email dated 23.06.2012, in his capacity as Secretary, NNF, the fact that Dr. Piyush Gupta had been nominated as the Election Officer by the NNF Governing Body in the meeting held on 16/17.06.2012 and that he is sending the latest NNF constitution by courier for his perusal, which had already been circulated with the NNF bulletin.

(h) That defendant No. 2 himself filled the form for elections to the 'President Elect - 2013-14 (President is for one year 2015)' on 06.08.2012.

(i) That the minutes of the meeting of the general body held on 17.12.2011 at Chennai were circulated by defendant No. 2 Dr. Ajay Gambhir in his capacity as the editor of NNF Today in Vol. 1 Issue 12 October 2012 issued by NNF Today which clearly recorded that, 'The amendments were passed with above corrections in typing and interpretation after long deliberations, discussions with over 90% of the members deciding and voting in favour of these amendments.'

39. Pertinently, to the aforesaid facts, there is no meaningful denial by the defendants. Even at the stage of arguments, the defendants have not disowned the documents relied upon by the plaintiffs which clearly bring out the facts as narrated hereinabove.

40. The defence of the defendants, on facts, is firstly that the proposed amendments to the constitution of the defendant society were not enforced. This submission is premised on the argument that had the amendments been adopted, the election notification issued subsequent to the amendments would have been also for election of 10 members of the governing body, two from each of the five zones. However, elections were notified only for the post of President Elect, Secretary General and Treasurer. No elections were conducted for electing the members of the governing body in terms of the amendments to the constitution of the defendant society.

41. I do not find any merit in this submission for the reason that it is absolutely clear from the publications of NNF Today - taken note of hereinabove, that the proposed amendments to the NNF Constitution were circulated prior to the holding of the general body meeting at the annual conference of NNF in Chennai in December, 2011; the proposed amendments were discussed at the general body meeting held at the annual conference of NNF held at Chennai on 17.12.2011 and the same were passed by over 90% of the members deciding and voting in favour of the amendments. Merely because in terms of those amendments, the election for 10 members of the governing body-two from each of the five zones, were not notified subsequently, cannot wash away the fact that the amendments were approved by the general body with over 90% of the

members voting in favour of the amendments. A lapse in not notifying the election for the 10 posts of governing body would not militate against the enforcement of the amendments, once they have been passed by the general body with overwhelming majority and when they have been given effect to qua the elections for the posts of President Elect, Secretary General and Treasurer. It is well settled in Managing Committee, Khalsa Middle School and another Vs. Mohinder Kaur (Smt.) and Another, 1993 Supp. (4) SCC 26, that there is no requirement in the Societies Registration Act which requires registration of any amendment in the Memorandum of Association or the rules and regulations of a Society to be registered with the Registrar. The Supreme Court drew a distinction between the provisions of the Companies Act, 1956, in particular Section 18 thereof, which deals with alteration of Memorandum of Association of a company registered with the Registrar of Companies and observed:

"10. ... ... .... Here we are concerned with the amendment in the Rules and Regulations of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Shri Mehta that the amendment which was made in the Rules and Regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended Rules and Regulations were registered with the Registrar, Firms and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the said amendment was passed, i.e. July 1, 1979 ... ..."

(Emphasis supplied)

42. The next submission of Mr. Nandrajog that there were several printing errors in the amendments and that the AGM deliberated on the proposed amendments by incorporating corrections in the draft constitution, but the corrected draft constitution of the society has not seen the light of the day also has no merit. The minutes of the meeting of the general body held on 17.12.2011 themselves record that, 'the amendments were passed with above corrections in typing and interpretations after long deliberations, discussion with over 90% of the members deciding and voting in favour of the amendments'. Thus, the general body took note of the corrections in typing, as well as interpretations; deliberated and discussed the proposed amendments, and; passed the proposed amendments with 90% of the members voting in favour of the amendments.

43. The general body of NNF did not postpone the deliberations, discussions and consideration of the amendments on account of the some typographical errors, or errors of interpretation. The contentions of the defendants to the contrary are contrary to the record. The submission that the amended constitution was not circulated is factually and patently wrong. Soon after the said amendments were approved by the general body in its meeting held on 17.12.2011, defendant No. 2 himself circulated the amendments incorporated in the amended constitution/Memorandum of Association in NNF Today Vol. 1 Issue 3 January 2011. This position is not only evident from the said issue of NNF Today placed on record, but also from the email communication sent by defendant No. 2 himself to Dr. Piyush Gupta, communicating to him the decision of the governing body appointing him as the election officer and also stating, 'I am sending you the

latest NNF constitution by courier for your perusal which had already been circulated with NNF bulletin.'. Pertinently, despite a pointed query to the defendants, to point out the typographical/ interpretation errors in the MOA/ constitution published in the January, 2012 edition of NNF Today, Mr. Nandrajog has not been able to point out any such error.

44. The submission of Mr. Nandrajog that the plaintiffs have not filed a replication to deny the specific averments made by the defendants is of no avail. The submissions of the defendants, which are contrary to the record are themselves liable to be rejected. To such averments, the plaintiff is not obliged to respond by filing a replication. It is sufficient for the plaintiffs to point out to the court that the averments made in the written statement are contrary to the record, which is beyond dispute. Reliance placed by Mr. Nandrajog on the notice issued for holding the general body meeting on 15.12.2012 - wherein one of the proposed items on the agenda was the proposed constitutional amendments, is of no avail. Pertinently, the said notice is in respect of a general body meeting held after the institution of the suit and after defendant No. 2 had already made his intentions clear to perpetuate his tenure as the President of NNF beyond the period of one year i.e. 2015. It appears from the document titled, 'recommendation for NNF Constitution' placed on record by the plaintiffs at page 171 of the record, that the endeavour of defendant No. 2 to perpetuate his tenure for two years was set into motion by constitution of 'constitutional committee' under his chairmanship as the President of NNF. This document records that the Committee at its meeting on 29.09.2015 at Hotel Piccadily, Janakpuri, Delhi, at 11.00 a.m. unanimously opined that legally the tenure of the

current President Dr. Ajay Gambhir is of two years i.e. 2015-2016. The defendants have not been able to point out as to on what basis such an opinion was formed by the said so called constitutional committee. The only defence offered by the defendants is that the amendments of 2008 had not been approved by the general body in the annual general meeting held on 17.12.2011 at Chennai. This defence of the defendants, as already pointed out, is plainly contrary to the record. The fact that the said amendment was passed is evident from the repeated circulation of the amended constitution/Memorandum of Association of NNF in Journal NNF Today by none other than defendant No. 2 as the Secretary General of NNF and as the Editor of the said Journal. This fact is also evident from the fact that defendant No. 2 himself firstly communicated to Dr. Piyush Gupta the amended constitution, and thereafter filled in the nomination form for the post of President Elect 2013-14-President for one year-2015 on 06.08.2012.

45. The defendant No. 2 having participated in the election process for election of the President Elect-2013-14 (President for one year 2015), and cannot now turn around and claim that his tenure as President is two years. The games of the rule played by defendant No.2 were set when the elections were held. Defendant No. 2 voluntarily and consciously participated in the election process, knowing fully well that he was contesting the election for the post of President Elect-2013-14 i.e. President for one year 2015, when he filled up the nomination form on 06.08.2012. Having participated in the said election process without any protest or demur, he cannot now turn around to claim that he is not bound by the said election process. In fact, he derived his power as the President of NNF for 2015 on the basis of the said

election. In R.N.Gosain Vs. Yashpal Dhir, (1992) 4 SCC 683, on the aspect of approbation and reprobation, the Supreme Court observed as follows:

"10. Law does not permit a person to both approbate and reprobate. This 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 around and say it is void for the purpose of securing some other advantage". [See Verschures Creameris Ltd. v. Hull and Netherlands Steamship Co. Ltd., Scrutton L.J. (1921) 2 KB 608, 612 (CA)]. According to Halsbury's Laws of England, 4th Edn., Vol.16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside"".

46. Defendant No. 2 is clearly approbating and reprobating. He opted/elected to participate in the election process on the strength of his nomination form dated 06.08.2012 for the post of President Elect 2013- 14(President for one year 2015) and got himself elected as President Elect for 2013-14, and as President for one year 2015. After being so elected and while occupying the chair as the President, he has sought to perpetuate his rein as the President of NNF by resorting to stratagem i.e. by forming a constitutional committee under his own chairmanship and opining that his tenure as President is for two years.

47. At this stage itself, I may observe that on another aspect, i.e. whether special leave to appeal under Article 136 of the Constitution would be barred on account of an undertaking being given by a party before the High

Court whereunder the party has taken advantage, the decision in R.N.Gosain (supra) has been over-ruled in P.R.Deshpande Vs. Maruti Balaram Haibatti (1998) 6 SCC 507. However, the said over-ruling is not in respect of the principle of approbation and reprobation taken note of by the Supreme Court in para 10 of R.N.Gosain (supra) as above extracted.

48. In fact, in P.R.Deshpande (supra), the Supreme Court observed in para 8 as follows:

"8. The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppels by election is one of the species of estoppels in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. (vide Black's Law Dictionary, 5th Edn.)".

49. The submission of Mr. Nandrajog that the amended constitution, as amended in December, 2011 was not circulated to the Registrar of Societies is also meritless. There is no legal requirement for circulation of the amended circulation/amended Memorandum of Association to the Registrar of Societies. Section 12 of the Registration Act per se has no application to such amendments. It is not even the case of Mr. Nandrajog that the amendments related to the purpose of the defendant society, or to its amalgamation with any other society. I may note that Section 12A to 12C of the Registration Act, as introduced in Delhi, also have no bearing in the facts of the present case. Mr. Nandrajog has sought to place reliance on the minutes of the general body meeting held on 17.12.2011 and in particular in relation to agenda item No. 7. I may observe that the minutes relied upon by

Mr. Nandrajog do not appear to be genuine. Pertinently, the plaintiffs have placed on record the photocopy of NNF Today Vol.1 Issue 12 October 2012, which contains the minutes of the general body meeting held on 17.12.2011 at Chennai, which were compiled and circulated by none other than Dr. Ajay Gambhir-defendant No.2. The agenda item No. 7 in the said minutes is, 'Venue of the 33rd Annual Convention of the NNF and other Neocon issues'. Thus, the said agenda item does not even pertain to the subject, 'Any other business notice of which has been circulated with agenda'. It appears that the defendant in their desperation have even resorted to falsification of the record.

50. In the face of the aforesaid factual position, the alleged minutes recorded at the governing body meeting held on 12.12.2013 at Hyderabad relied upon by Mr. Nandrajog, are of no avail. The approval by the general body of the proposed amendments in the meeting held on 17.12.2011 has the legal effect by bringing in force the said amendments. This was so even to the knowledge of the defendants as post the said amendments, the elections were held in the light of the said amendments. Recording of a contrary position by the governing body in a subsequently held governing body meeting cannot have the effect of nullifying the decision already taken in the general body meeting which is supreme. The submission of Mr. Nandrajog that Dr. B.D.Bhatia who succeeds defendant No. 2 as the President has also supported the version of the defendants - that the tenure of the President is two years and not one year, is neither here nor there. It is not the version of a particular member in relation to his understanding of the applicable rules and regulations, which is of any relevance. Moreover, it is pointed out that

the said Dr. B.D.Bhatia stands to gain by supporting the case of defendant No.2 inasmuch, as, he too would enjoy presidency of NNF for a period of two years, if defendant No. 2 has his way.

51. The submission that the amended constitution/Memorandum of Association as amended on 17.12.2011 has not been communicated to the Registrar of Societies is neither here nor there. As noticed above, there is no requirement in law that the said amendments had to be circulated to the Registrar of Societies or his approval taken before enforcing the amendments. The minutes of the governing councils meeting held on 29.03.2015 relied upon by Mr. Nandrajog is also of no avail, since it proceeds on a completely erroneous premise that the amendments to the constitution/Memorandum of Association effected on 17.12.2011 require their communication and approval by the Registrar of Societies.

52. The submission of Mr. Nandrajog that the grant of interim relief, at this stage, would tantamount to granting the final relief in the suit too has been considered. No doubt, the courts would normally not grant an interim relief which would tantamount to granting final relief. The Supreme Court in Deoraj Vs. State of Maharashtra and Others, (2004) 4 SCC 697, considered the situations wherein the court may grant interim relief even in cases where such interim relief may tantamount to a final relief. Pertinently, this case also arose out of an election dispute. In this case, the appellant before the Supreme Court had filed his nomination for the post of Chairman of a co-operative society. His was the only nomination filed for the said post. On the appointed day, only four directors, including the appellant, were present. The returning officer awaited the arrival of the other directors

for 10 minutes. Thereafter, he drew up the proceedings. The returning officer held that the quorum for the said meeting was half plus one Director. Since the quorum was not complete, the special meeting was stayed. The appellant was aggrieved by this decision of the returning officer and assailed the same in a writ petition before the Bombay High Court. He sought quashing of the said proceedings of the returning officer and also, in substance, sought a declaration that he be declared as the duly elected Chairman of the Society. The High Court declined the interim relief sought by the appellant which led to the filing of the appeal before the Supreme Court. The Supreme Court, inter alia, observed as follows:

"11. The courts and tribunals seized of the proceedings within their jurisdiction take a reasonable time in disposing of the same. This is on account of fair-procedure requirement which involves delay intervening between the previous and the next procedural steps leading towards preparation of case for hearing. Then, the courts are also overburdened and their hands are full. As the conclusion of hearing on merits is likely to take some time, the parties press for interim relief being granted in the interregnum. An order of interim relief may or may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes an order of interim nature. Ordinarily, the court is inclined to maintain status quo as obtaining on the date of the commencement of the proceedings. However, there are a few cases which call for the court's leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any judge to test.

12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case -- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.

13. The present one is a case where we are fully satisfied that a foolproof case for the grant of interim relief was made out in favour of the petitioner in the High Court on the basis of the material available before the Court. There was only one nomination filed which was found to be in order and was not withdrawn. The time appointed for filing nominations, scrutiny and withdrawal was over. There was no contest. Nothing had remained to be done at the meeting of the Committee which was to be convened only for the purpose of declaring the result. Nothing was to be put to vote. Holding of a meeting was only for the purpose of performing the formality of declaring the appellant as elected. In fact the election programme, as notified, itself contemplated the meeting at 1400 hours for voting and counting "if felt necessary". The provision as to

quorum lost all its significance. It did not make any difference whether there were eight Directors to hear the declaration of result or just four or even none. Maybe, the Directors having learnt of there being a single valid nomination and that too not withdrawn, and also knew that the result of the election was a fait accompli, and therefore, did not want to take the trouble of even coming to the venue of the meeting. Unless something was brought to the notice of the Court either by way of material in the shape of documents or affidavits or even by way of a plea raised before the Court which could come in the way of the relief being granted to the writ petitioner, in a case of such nature, the interim relief ought to have been granted. The writ petitioner appellant is right in submitting that the election was for a period of one year out of which a little less than half of the time has already elapsed and in the absence of interim relief being granted to him there is nothing which would survive for being given to him by way of relief at the end of the final hearing".

53. In my view, this decision squarely applies to the facts of the present case. It is absolutely clear to me that the constitution/Memorandum of Association of defendant No. 1 society stood amended on 17.12.2011 whereby the tenure of the President, apart from other office bearers, was reduced from two years to one year. The said amendment has come into force legally and factually, it was acted upon by the defendant society, and even acknowledged by defendant No. 2 in various ways. He not only circulated the amended constitution - being the Secretary, NNF and Editor of NNF Today, but also participated in the elections for the post of President Elect 2013-14 and President 2015 by filing his nominations without any protest or demur. He took advantage of the said election process and got elected as the President for one year, i.e. 2015. Only thereafter, he has sought to take several steps with a view to perpetuate his tenure as President

even beyond 2015. If the grant of interim relief in favour of the plaintiffs would tantamount to granting final relief in the facts of the present case, the denial of interim relief sought by the plaintiffs would tantamount to dismissal of the suit itself. The plaintiffs would be met with a fait accompli if the said relief is not granted, as the remainder of the year 2016 would soon run out before the suit is finally decided, and defendant would have achieved their illegal objectives and designs. It is absolutely clear that the plaintiffs have not just a prima facie case, but a very strong prima facie case in their favour. The balance of convenience is entirely in favour of the plaintiffs and in favour of granting the interim reliefs sought for by the plaintiffs in the aforesaid factual background, and undoubtedly irreparable injury would be sustained not only by the plaintiffs, but by the general body of members of the defendant society, if defendant No. 2 is permitted to usurp the office of the President, NNF and perpetuate his rein for even a single day more. His term as the President, NNF, expired on 31.12.2015 and he should have demitted his office on his own on the said date. However, he has continued to proclaim and claim himself to be the President, NNF, even thereafter. The denial of interim relief to the plaintiffs, at this stage, would certainly result in miscarriage and failure of justice, and it would not be possible to put back the clock even if the plaintiffs ultimately succeed in the suit, as defendant No. 2 would have perpetuated his illegal usurpation of the office of President, NNF for the remainder of 2016. Undoubtedly, the denial of interim relief to the plaintiffs would cause undue and extreme hardship to them. Pertinently, when the general body approved the amendments to the constitution/MOA in 2011, the general body also expressed its displeasure of the fact that the constitutional amendments made in 2008 were not

circulated to the public at large for the last three general body meetings despite they being passed in governing council meetings during the last three years. This clearly shows that the overwhelming majority of members of the defendant society were of the view that, inter alia, the tenure of the President, NNF, should be reduced from two years to one year. The general body of a society is supreme, and since the said general body has expressed its view in unequivocal terms, the said view has to be respected by all, including defendant No. 2. His conduct in seeking to perpetuate his rule as the President even beyond the period of one year can only be described as dishonest. Even if the tenure of the President NNF were to be again increased to two years by further amendment of the MOA/ constitution, the same can, possibly, not extend the tenure of defendant No.2. He contested the elections for President-Elect 2013-2014, President for one year 2015. The further amendment, if any, can only be made prospectively.

54. For all the aforesaid reasons, the interim application filed by the plaintiffs is allowed. Defendant No. 2 is forthwith restrained from continuing and acting as the President of defendant No. 1 NNF or taking any steps in that capacity for holding any meeting of the governing body or the general body of NNF or acting in any capacity as member of any committee of NNF. All decisions taken in any of the meetings of NNF or its governing body, or the constitutional committee in relation to the amendment of the constitution/Memorandum of Association of defendant No. 1 society, as amended on 17.12.2011, and contrary to the said amendments, shall remain stayed during the pendency of the suit.

55. Considering the fact that defendant No. 2 has sought to usurp the office of the President, NNF, by resort to, evidently unethical and illegal means, defendant No. 2 shall pay costs of Rs. One lakh. Out of the said costs, Rs. 50,000/- shall be paid to the plaintiffs and the remaining Rs. 50,000/- shall be deposited in the account of defendant No. 1-Society, whose members have also suffered legal injury on account of defendant No. 2 not adhering to the amended constitution/Memorandum of Association of defendant No. 1. The costs be paid within two weeks.

56. The application stands disposed of.

(VIPIN SANGHI) JUDGE APRIL 19, 2016