Delhi High Court
Salman Khurshid vs Delhi Public School Society & Anr. on 24 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 24.08.2017
+ CS(OS) 3094/2015
SALMAN KHURSHID ..... Plaintiff
Through: Plaintiff in person.
Ms Sakshi Kotiyal, Mr Adil Singh,
Mr Vikramaditya Singh and Mr Imtiaz Ahmed,
Advs.
versus
DELHI PUBLIC SCHOOL SOCIETY & ANR. ..... Defendants
Through: Mr Sandeep Sethi, Sr. Adv with
Mr.Puneet Mitta) & Ms.Vasudha Bajaj, Advs. for
defendant no. 1.
Mr.Sudarshan Batra, Sr. Adv. with Mr.Bhuvan
Gugnani, Adv. for defendant no.2.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
IA No.21658/2015 (O. 39 R. 1&2 CPC)
1. Vide the present suit, the plaintiff has sought the quashing of the
letter/notice dated 17.09.2015 bearing No. DPSS: 2015-16:1489 issued by
the defendants exercising powers under/Rule II(7) of Memorandum of
Association (MoA) of defendant no.1, on the grounds of it being illegal,
null and void and a decree of permanent injunction against the defendants
CS(OS) No.3094/2015 Page 1
restraining them from interfering with his life membership with defendant
No.1 and has also claimed damages. The plaintiff has also challenged Rule
II(7) of MoA of defendant no. 1/Society as invalid and non est in view of the
judgment of this Court in Sarabjit Singh and Ors. vs. All India Fine Arts
and Crafts Society and Ors. (1989) ILR 2 Delhi 585;
2. Along with the suit, the plaintiff has filed an application under order
39 Rules 1 and 2 of Civil Procedure Code (hereinafter referred to as CPC)
seeking interim injunction against his expulsion from the membership of
defendant no. 1/ Society pursuant to notice dated 17.09.2015.
3. Defendant No.1 is the registered non-profit Society and defendant
No.2 is the Chairman of defendant No.1. Defendant No.1 has set up several
schools of its own and franchises across the country and abroad. The
objective of defendant No.1 is laid down in its MoA. The plaintiff is the life
member of defendant No.1/Society and claims that his association with
defendant No.1 is almost 50 years old. It is contended that the plaintiff had
studied and had been a Head Body and cricket captain of Delhi Public
School, Mathura Road and thus contributed in rich legacy of defendant-
society.
CS(OS) No.3094/2015 Page 2
4. The plaintiff contends that defendant No.1-Society at present has 18
life members out of which two had been inducted unlawfully. As per the
MoA, the Working Committee is to be constituted according to the Rules
and Regulations of the Society which shall be its Governing Body and is
responsible for the policy decisions for running the schools including
academic and administrative matters. The Working Committee consists of
Chairpersons or Members of the Managing Committee of the Society School
as well as the so called franchise schools. Relying on Rule VII of the Rules
and Regulations of Delhi Public School Society (hereinafter called the
DPSS), it is contended that these rules ensure democratic functioning. The
relevant rules are reproduced as under:-
"Rule VIII(2)
VIII. Working Committee
2. The Working Committee shall consist of (1) Chairman,
(2) Vice-Chairman, (3) Treasurer, (4) Secretary (5)
Principal/Principals of Schools upto Higher Secondary
level, (6) Five other persons elected by the Society from
among its own members, (7) one teacher of each institution
of Higher Secondary level nominated by the Chairman in
consultation with its Principal and (8) Vice-Principal of
Higher Secondary Schools.
One of the five elected members or any other suitable
persons could be appointed as Education Member. If such a
person is not a member of the Working Committee, he
CS(OS) No.3094/2015 Page 3
would became an ex officio member of the Working
Committee and of the Society." (emphasis added)
5. The plaintiff has also referred to the rules dealing with the election of
the Chairperson and its powers and quoted Rule III and Rule VIII(7). The
said rules, as relied upon by the plaintiff, are reproduced as under:-
"Rule III
Unless otherwise provided by the bye-laws, all disputed
questions at meetings shall be determined by vote. Each
member of the Society or of the Working Committee as the
case may be, present at the meeting shall have one vote and
the votes of the majority shall prevail. In case of equality of
votes, the Chairman shall have a casting vote."
Rule VIII(7)
"The decision of the Working Committee may in case of
urgency, with the approval of the Chairman, be arrived at
by circulation of the proposed and getting assent of the
members of the Working Committee present at the time in
Delhi"
6. It is contended by the plaintiff that he being life member of the
defendant no. 1/Society visited the premises/office of Society on 30.03.2015
at 9.30 AM (during the normal office hours) for few minutes on the request
and with a senior member of the Working Committee, Dr. Sharda Nayak. It
was a routine visit and being life member of the society, he was within his
rights to visit the school. The plaintiff at that time, was also apprised that
CS(OS) No.3094/2015 Page 4
two former Chairmen i.e., Narender Kumar and Ashok Chandra would also
be present,but Ashok Chandra did not show up. During this period, he heard
the grievances relating to commercialization of the education and, thereafter
he left the defendant no. 1/Society premises. On the next date, he learnt from
the newspaper reporting that Dr. Sharda Nayak, life member of the Society
had declared herself as the new Chairperson of the defendant no. 1/Society
and an FIR had been registered against her in Amar Colony, Police Station
for criminal trespass, etc. The FIR did not have any mentioning of
wrongdoings by the plaintiff. It is contended that he was in no manner party
to any alleged event transpired at the initiative of Dr. Sharda Nayak. Dr.
Sharda Nayak filed a civil suit and on being approached by the counsel of
Dr. Nayak, he accepted the case brief of Dr. Nayak. It is contended that it
was done by the plaintiff being an officer of the Court and designated Senior
Advocate of the Supreme Court and as being duty bound by the provisions
of Advocate Act. The plaintiff attended the hearing in Dr.Nayak‟s case on
19.06.2015 and 25.06.2015 during summer vacation in an interlocutory
application bearing No.12524/2015 in pending civil proceeding bearing No.
CS(OS) No. 1011/2014. He received a letter dated 24.07.2015 calling upon
to explain the events of 30.03.2015. The plaintiff has also reproduced the
CS(OS) No.3094/2015 Page 5
contents of the said letter in its petition. He contends that the said letter was
issued in violation of the provisions of Rule II (7) of Rules and Regulation
of DPS Society. The plaintiff has also challenged the constitution of the
Working Committee alleging that the defendant no. 2 did not consult the
Principals, Vice-Principals of the schools of Higher Secondary level,
therefore, the letter was void ab initio. The plaintiff has contended that the
Society is hell bound to cancel his life membership and earlier also it
invoked Rules II (7) in the year 2008 for the said purpose. The notice was
challenged before Single Judge of this Court who directed the Society to
give personal hearing to the plaintiff. The defendants challenged the said
order before Division Bench of this Court and Division Bench refused to
stay the order of Single Judge and then instead of giving personal hearing to
the plaintiff the said notice was withdrawn by the defendant no. 1/Society.
The plaintiff has contended that Rule II(7) is ultra vires since it does not
include in itself an opportunity of personal hearing. It does not provide the
forum of adjudication of the issues. The Rule consequences a drastic civil
action, but is silent on the matter whether the directions issued under the
Rule are appealable or not. The said rule is also ultra vires in view of the
findings of the Single Judge‟s interlocutory order in Sarabjit Singh and Ors
CS(OS) No.3094/2015 Page 6
(supra). He further contends that his reputation has been injured by the
defendants by publication and communication of defamatory imputation in
notices dated 24.07.2015 and 17.09.2015 which was circulated amongst the
members of the defendant no. 1/Society. It contains false allegations and
malicious accusations unsubstantiated by any facts. It is further contended
that the allegations of defendant No.1 in the notice dated 24.07.2015 were
refuted by the plaintiff in its reply dated 21.08.2015. The allegations that he
had entered unauthorizedly was incorrect. He accompanied Dr. Nayak on
her invitation only. While the defendant No. 2 has chosen to take action
against the plaintiff and Dr. Nayak, no action has been taken against
Narender Kumar and Ashok Chandra, rather appointed them as Chairman,
Emeritus and Co-Chairman respectively. This shows that defendants are
acting mala fidely against the plaintiff. It is further contended that the
plaintiff is not a party to execution of any instructions or orders or letters
issued by Dr. Sharda Nayak. The plaintiff has further contended that in his
reply he has elaborately mentioned the reasons which show that defendant
No.1-Society has been violating the objectives of the MoA and the rules and
regulations of DPSS and is acting mala fidely and its action is motivitated
and the notice was also issued belatedly. That the notice was issued at the
CS(OS) No.3094/2015 Page 7
behest of defendant No. 2, who wanted to take revenge from the plaintiff
since the plaintiff being member of Disputes Resolution Committee (DRC),
made inquiries into the alleged malpractices of the defendant no. 2 who
refused to accept the said decision of 3 member DRC. Defendant no. 2 did
not place that report of DRC before Society nor took any action on it. Since
the notice dated 24.07.2015 had been issued at the instance of defendant
No.2 who did not like the report of DRC, he, in his reply to notice, asked the
defendant no. 2 to recuse himself, but his demand was rejected. The
plaintiff had complained that the defendant No.2 had been acting illegally in
issuing franchises on taking money and terming it as a maintenance fee, etc,
thus guilty of violating the rules of the society. It is submitted that defendant
No.2 in connivance with his supporters have been trying to eliminate every
voice of honest dissent and reasonable disagreement by expelling life
members like plaintiff in arbitrary and illegal manner in order to have
complete control over the defendant No.1-Society. It is contended that his
reply was rejected illegally and without any reason. That the plaintiff also
asked for the proofs of the allegations in his reply to the notice dated
24.07.2015, but proofs were never given to him. The impugned notice does
not disclose any evidences which prove the allegations levelled against him
CS(OS) No.3094/2015 Page 8
in the show cause notice. It is contended that the DPS World Foundation is
an independent initiative of DIPSITES, of which he was the former
President and current patron. The allegation that DPS World Foundation is
an initiative only to illegally cash upon the goodwill of defendant no.
1/Society is false and has no connection with defendant No.1/Society. It is
contended that all the allegations are baseless. It is contended that the
plaintiff has a good prima facie case and the balance of convenience also
lies in his favour and that he shall suffer irreparable loss and injury if the
interim stay is not granted to him.
7. The suit as well as the application is contested by the defendants. It is
submitted that the plaintiff has not come up before this Court with clean
hands and has concealed from the knowledge of this Court the material
facts. This act of concealment of fact is sufficient to disentitle him to any
discretionary relief in view of sub-section (i) of Section 41 of the Specific
Relief Act, 1963. It is submitted that the plaintiff has concealed that he had
started another school in the name and style of DPS World Foundation
across India and has also given franchise of such school to various people.
The DPS World Foundation is using name of Delhi Public School and its
logo DPS. It is submitted that the plaintiff is a life member of defendant
CS(OS) No.3094/2015 Page 9
No.1-Society and his act of floating a parallel school prima facie shows that
he is acting against the interest of defendant No.1/Society. It is submitted
that since the plaintiff has concealed these facts, the suit is liable to be
dismissed. The plaintiff is also misleading the public at large by depicting
that the DPS World Foundation is the other wing/franchise/branch of
defendant No.1-Society while the truth is to the contrary. By doing this, the
plaintiff is trying to take advantage of the goodwill and the fame of
defendant No.1-Society and, therefore, his act is contrary to and detrimental
to the interest of defendant No.1-Society. It is further submitted that no
cause of action now exist in favour of the plaintiff as he ceased to be a
member of the defendant No.1-Society with effect from 17.10.2015 in terms
of notice dated 17.09.2015. The defendants have admitted that the plaintiff
was one of the members of Dispute Resolution Committee (DRC) along
with Mr Ravi Vira Gupta and Shri Montek Singh Ahluwalia. It is, however,
contended that the Committee was not constituted to look into the
allegations of wrongdoing and theft of a crucial vote during the last elections
as alleged by the plaintiff, in fact, the voting did not take place for the post
of Chairman alone, but also for the post of Vice-Chairman. The DRC was
constituted in terms of the DPS Election Rules whose duties were to resolve
CS(OS) No.3094/2015 Page 10
the dispute during the election. It is further contended that the objectives of
defendant no. 1 Society as contained in MoA allow the defendant no. 1 to
give franchise to other institutions. It is submitted that there are now 17 life
members as the plaintiff ceases to be a life member with effect from
17.10.2015. Dr. Sharda Nayak also ceases to be the life member on
05.07.2015 and the civil proceedings initiated by her and pending before this
Court, are being contested by the defendants. It is further contended that the
members of the Working Committee are elected members from amongst the
life members who are elected in accordance with the rules of defendant
No.1-Society. The process of their election is the same which is adopted for
the election of Chairman and Vice-Chairman. Such elections were held and
the results were notified on 10.01.2014. It is further contended by the
defendants that the plaintiff along with Dr. Sharda Nayak had trespassed the
office on 30.03.2015 and she forcibly occupied the office of defendant No.2
(Chairman of defendant No.1 who was in United States from 26.03.2015 on
a personal visit), after breaking open the locks of his office. It is further
contended that they took control of the premises of defendant No.1 and
thereafter they were also joined by one Shri Narender Kumar. It was in the
presence of plaintiff and other persons that Ms Dr. Sharda Nayak announced
CS(OS) No.3094/2015 Page 11
herself as Chairperson of defendant No.1 and also issued several orders in
that capacity in the presence of plaintiff. The said orders were e-mailed after
hacking e-mail ID of the Secretary. All the details of the act of the plaintiff
were incorporated in the show-cause notice dated 24.07.2015. It is
contended that it was not a routine or short visit, but the plaintiff remained in
the premises with Dr. Sharda Nayak and Narender Kumar till 2.00 PM.
Thereafter, Mr. Narender Kumar and Smt. Dr. Sharda Nayak continued
occupying the Chairman Office for the remaining part of the day. It is
further contended that for an act of illegally barging into the office of
Chairman and hacking the email of defendant no. 1/Society and for other
illegal acts, an FIR No.420/2015 under Section 448/34 IPC was registered at
PS Amar Colony on 31.03.2015 at about 10.50 hours. It is contended that
the contention of the plaintif that he came to know of the alleged incident
(actions of Dr. Sharda Nayak) through morning Newspapers on next day is
false since FIR itself was lodged at 10.15 AM on the next date so
newspapers could not have carried the story in the morning issue of
31.03.2015. It is contended that it is an admitted fact that the plaintiff had
accompanied Dr. Sharda Nayak. The defendant no. 2 had reported the said
act of the plaintiff to the police on 12.05.2015 with a request to investigate
CS(OS) No.3094/2015 Page 12
the matter. It is contended that the plaintiff was part of a well-planned
conspiracy to illegally occupy and take over the premises of defendant No.1-
Society. This fact stands corroborated by the fact that the plaintiff had
supported the act of Ms. Sharda Nayak by appearing on her behalf in the
Court of Law. His interest, therefore, is in conflict with the interest of the
Society. His this act is violative of Rule 9 of the "Rules of Advocates Duty
Towards Court" which prohibits an Advocate to appear before any judicial
authority for or against any establishment if he is in the management of that
establishment and the only exception is to appear as an amicus curiae or
without a fee on behalf of the Bar Council, Incorporated Law Society or a
Bar Association. That this is part of the rules of Professional Standards
framed by the Bar Council of India. The plaintiff‟s act is also violative of
Section 35 of the Advocates Act, 1961. It is submitted that the Working
Committee of DPS Society has decided in April, 2015 to take appropriate
action against the plaintiff. The minutes of meeting dated 22.07.2015 of
Working Committee shows that there was consultation with the Working
Committee before the letter dated 24.07.2015 was issued to plaintiff. It is
submitted that the participation of Principals, Vice-Principals and teachers in
the composition of Working Committee has lost its relevance over the years
CS(OS) No.3094/2015 Page 13
due to large number of schools and, therefore, DPS Society on 11.01.2014
and 23.01.2014 decided that only the Principals of the school shall be
invited to the meetings as and when considered necessary for the conduct of
the business of that particular school. It is further contended that up to 2007,
Principals and Vice-Principals/Teachers have not been part of the Working
Committee and, thereafter only Principals were invited and that too not on
all the occasions and the same principle was also followed by the plaintiff
for 15 years during his tenure as President of DPS Society and he was also
party to all the decisions. It is further contended that the plaintiff is now
challenging the vire of Rule II(7) of DPS Society while he as a President of
the Society himself had invoked the said rule and took action against late
Shri B.K. Raizada and now he cannot take a different stand qua these rules.
8. It is submitted that the Society in earlier proceedings against the
plaintiff did not shy away to offer a post decisional hearing to the plaintiff.
In fact, plaintiff himself expressed regret for his actions and defendant No.1/
Society acting magnanimously withdrew the said notice. The defendants
have placed reliance on the General Body Meeting held on 16.08.2010. It is
submitted that notice under Rule II(7) was given to plaintiff after carefully
considering his reply. The show-cause notice contained clear grounds of
CS(OS) No.3094/2015 Page 14
allegations duly supported by materials. The plaintiff never asked for
personal hearing which was to be given on his asking as held by the
Division Bench in earlier proceedings. The Court held "that personal
hearing be granted to the plaintiff if he so desires". The body which issued
the notice is the only body which is required to consider the reply and give
personal hearings if it is so desired by the plaintiff. The principles of natural
justice were duly followed by defendants.
9. The past conduct of the plaintiff also shows that he does not subscribe
to the aims and objectives of the defendant No.1/Society, which is pre-
requisite for anyone to continue as a member. It is also denied by the
defendants that Rule II(7) has been declared ultra vires by Single Bench in
Sarabjit Singh and Ors .(supra). It is submitted that the said order was an
interlocutory order and not a final order. Besides that Rule 11(7) were not
under challenge in those proceedings but some other rules of identical nature
of other society were the subject matter of adjudication. The operation of the
said order was stayed by the Division Bench and hence, the reliance of the
plaintiff on the said order was misplaced. It is denied that the
communications dated 24.07.2015, 15.09.2015 and 17.09.2015 are
defamatory. It is further contended that the said communications were not
CS(OS) No.3094/2015 Page 15
circulated to any of the members except the members of the Working
Committee which was necessary for consultative process. The plaintiff
however chose to circulate his reply dated 21.08.2015 to all the life
members and also to all pro-Vice Chancellors of various schools established
under the aegis of defendant No.1 and it was plaintiff who made the private
communication public by circulating the same.
10. It is further contended that the plaintiff is the trustee of another outfit
DPS World Foundation and has made his wife the Chairman of the said
Society and the main object of the said Society is the same as that of
defendant No.1. The said Society is illegally using the name and logo of
defendant No.1/Society. It is further contended that plaintiff has admitted all
the facts of the show-cause notice in his reply.
11. It is contended that the decision of DRC in which the plaintiff was
one of the members was the subject matter of the Civil Suit being CS(OS)
No. 960/2014 filed by an unsuccessful candidate to the post of Chairman.
The said civil suit stands withdrawn by the plaintiff therein. Hence, the
contention of the plaintiff that the action against the plaintiff was in response
to his report was incorrect. Moreover, the said report was dated 28.01.2014
while the show-cause notice dated 24.07.2015 has been issued to the
CS(OS) No.3094/2015 Page 16
plaintiff for his illegal acts of 30.03.2015 and for subsequent events. It was
only after considering the reply of the plaintiff to the show-cause notice, in
which the plaintiff has admitted all the facts, the Working Committee after
due deliberation, reached the consensus to remove the plaintiff from the life
membership. It is denied that the said act of the defendant is a pre-conceived
conclusion or is mala fide. It is submitted that the plaintiff has no cause of
action in his favour. He has no prima facie case and the balance of
convenience also does not lie in his favour. The suit as well as the
application is liable to be dismissed.
12. Reiterating the contentions in the suit and application, it is argued by
the plaintiff that the constitution of the Working Committee was in violation
of Rules since no Principals, Vice-Principals of the school up to higher
secondary level or teacher representative appointed by Chairperson were
present or were invited, which was mandatory as per Rule VIII(2). It is
argued that the show-cause notice was illegal and untenable. It is argued that
the notice was issued on the allegations that plaintiff was complicit with Dr.
Nayak who committed trespass and other crimes for which the FIR was
recorded on 31.03.2015, but the name of the plaintiff find no mention in the
said FIR and in the statements of the staff and the learned Metropolitan
CS(OS) No.3094/2015 Page 17
Magistrate, Saket District Courts also did not summon him as no culpability
was found against him. It is further argued that even the documents filed by
the defendants and annexed from Page 2 to 13 of the defendant‟s documents
filed along with the reply to the ad interim injunction application, do not in
any way suggest the involvement of the plaintiff in the incident of
31.03.2015. It is argued that Dr.Nayak had acted in that manner being
encouraged by Mr. Narender Kumar, but, the defendants did not take any
action against him and appointed him as Chairman Emeritus and Chairman
of the Managing Committee of DPS Mathura Road. It is argued that there
was no basis for issuance of the notice dated 24.07.2015. It is further argued
that the plaintiff being an Advocate was discharging his duties towards his
client who engaged him, and that his life membership with defendant
No.1/Society does not disqualify him from appearing in a Court of Law
against the defendant No.1/Society. It is argued that law debars only
members of Executive Committee and since he was not a member of the
Working Committee of the defendant No.1/Society, he was within his rights
to appear before a Court of Law. In support of the argument, reliance is
placed on para 18 (8) of O.P. Sharma and Ors. vs. High Court of Punjab
and Haryana (2011) 6 SCC 86, wherein the Court has held as under:-
CS(OS) No.3094/2015 Page 18
"18(8) An Advocate shall not appear in or before any Court
of Tribunal or any other authority for or against an
organization or an institution, society or corporation, if he
is a member of the Executive Committee of such
organization or institution or society or corporation.
"Executive Committee" by whatever name it may be called,
shall include any committee or body of persons which, for
the time being is vested with the general management of the
affairs of the organization or institution, society or
corporation..."
13. It is further argued that the allegations of plaintiff‟s association with
DPS World Foundation is baseless and afterthought. DPS World Foundation
was launched on 16.08.2015 while the show-cause notice was issued on
24.07.2015 and that this fact further shows that the defendants were working
with a pre-determined mind to remove him. It is further argued that the
plaintiff is only a life trustee of the DPS World Foundation, which is an
initiative of DIPSITES i.e., Alumnus of Delhi, just like any other Dipsites
and the support extended by him to them is in the capacity of Patron of the
Dipsites. The "DPS World is an independent initiative of DIPSITES" and
DPS World Foundation has also issued as advisory to this effect which
states that "A Dipsites Knowledge Initiative and an independent effort of
DPS Alumni (Dipsites). Not a part of the Delhi Public Society, New Delhi"
showing that it has no connection with defendant No.1/Society. Even if the
defendants were aggrieved of his association with DPS World Foundation
CS(OS) No.3094/2015 Page 19
then instead of serving a notice upon him, they should have asked the
plaintiff to disassociate himself from DPS World Foundation.
14. The use of trade name, etc. of defendants by DPS World Foundation
is already a subject matter of another set of proceedings bearing
FAO(Comm.) 21/2016 before the Division Bench of this Court and,
therefore, those proceedings cannot be used as proxy. He was also not given
the material relied upon by the defendants in the show-cause notice and the
Chairman of the Society also did not recuse himself despite his request. It is
argued that the principles of natural justice were not followed by the
defendants since the plaintiff was not given personal hearing. The
contention that, personal hearing was not given because plaintiff did not ask
for it has no justification. It is argued that in the year 2008-09 when his
membership was terminated, he had not asked for personal hearing, but on
his challenge to such termination, the Division Bench in proceedings bearing
FA(OS) No. 565/2009 directed defendants to give personal hearing to the
plaintiff. It is argued that the Bombay High Court in a similar case held that
a personal hearing is necessary in case of expulsion of member of a society
and has relied upon the findings in the case of Mumbai Cricket Association
vs. Ratnakar Shvram Shetty & Ors. (2014) 2 Mah LJ 726. It is argued that
CS(OS) No.3094/2015 Page 20
the principle of natural justice can also be read in the rules of the
associations and the same has been held in the several pronouncements and
has relied on T.P. Daver vs. Lodge Victoria (AIR) 1963 (SC) 1144 (para 8),
Central Inland Water Transport Corporation v. Brojo Nath Ganguly
(1986) (3) SCC 156 (para 98); Institute of Chartered Accounts of India vs.
L.K. Ratna, 1986 (4) SCC 537 (para 18 & 27); Delhi Transport Corp. V.
DTC Mazdoor Congress 1991 (Supp.1) SCC 600 (para 220, 230, 240 &
247); LIC of India v. Consumer Education and Research Centre 1995(5)
SCC 482 (para 23); Escorts Farms v. Commissioner Kumaon Division
(2004) 4 SCC 281 (para 64); S.M. Kamble vs. JT. Registrar, Co-Operative
Societies, CIDC Navi Mumbai and Ors. (2008) 1 AIR Bom R 274 (DB)
(para 11-12). Further, It is argued that in the case Shri Sarbjit Singh and
Ors. (supra), the Court had declared the rules/provision identical to Rule
II(7) of the defendant-Society, as void. It is argued that neither the Division
Bench nor Supreme Court in SLP disturbed the findings of the Single Judge
as regard the validity of rules of expulsion and the findings still remains
persuasive, if not binding. Reliance is placed on the paragraphs 21 to 26 of
the said judgment in support of the arguments.
CS(OS) No.3094/2015 Page 21
15. It is further argued that the Working Committee was not constituted
as per rules and even the truncated committee did not consider all the
contentions of the plaintiff which is clear from the defendants‟ documents at
pages 19 and 23 and the minutes of the meeting dated 02nd April, 28th April
and, therefore, the notice needs to be stayed. It is further argued that cases
cited by the defendants, i.e., Aligarh Muslim University & Ors. v. Mansoor
Ali Khan AIR 2000 SC 2783 is distinguishable both in law and on facts. The
Apex Court has cautioned that "Care must be taken, wherever the Court is
justifying a denial of natural justice, that its decision is not described as a
„preconceived view...".
16. It is argued that the findings in the case of A.C. Muthiah v. Board of
Control for Cricket in India and Anr. (2011) 6 SCC 617 is distinguishable
on the facts and circumstances of this case. In that case, the matter in issue
before the court did not relate to expulsion of a member from a society. It is
argued that the plaintiff has not violated any rules and regulations of the
defendant-society and no violation has been so cited in the show-cause
notice dated 24.07.2015 and notice dated 17.09.2015. It is argued that
plaintiff has a good prima facie case and the balance of convenience also
lies in his favour. Relying on Ambalal Sarabhai and Ors. vs. Phiroz H.
CS(OS) No.3094/2015 Page 22
Anita 1938 SCC Online Bom 126 it is argued that the plaintiff is entitled for
the ad interim injunction on account of violation of the principle of natural
justice by defendants. Reliance is also placed on the Apex Court judgment in
Board of Control for Cricket in India vs. Cricket Association of Bihar
(2015) 3 SCC 251.
17. It is argued by learned counsel for the defendants that the plaintiff is
not entitled to the discretionary relief of injunction since he has not come to
the Court with clean hands and has suppressed the material facts from the
knowledge of this Court. It is argued that the plaintiff has concealed the fact
that he has floated an organization under the name and style of DPS World
Foundation School for setting up schools across India and is giving
franchisees and is also using the registered trade names „Delhi Public School
and its acronyms „DPS‟ of defendant No.1 and the logo without its consent
and thus has acted against the interest of defendant no. 1. A civil case being
CS(COMM) No. 154/2016 was filed by defendant No.1/Society and the
Court vide order dated 18.04.2016 in the said case restrained the DPC World
Foundation and DPS World School from using the name "Delhi Public
School" and "DPS" and logo of the defendant no. 1/Society. The appeal
against the said order before Division Bench, also failed. It is argued that the
CS(OS) No.3094/2015 Page 23
plaintiff is offering patron membership of DPS World Foundation for one
lakh and franchise under the impugned trademark for Rs.25 lakh in India
and Rs.35 lakhs abroad and till date have entered into numerous franchise
agreements and are running the school despite the interim order dated
18.04.2016. It is further argued that in its reply to the show-cause notice, the
plaintiff has nowhere denied the fact that he had accompanied Dr. Sharda
Nayak who was found committing act of a criminal trespass for which an
FIR No.420/2015 under Section 448/34 IPC at PS Amar Colony was
registered and chargesheet, against her, was filed before learned
Metropolitan Magistrate, Saket Courts. It is argued that the argument of the
plaintiff that the defendants had not taken any criminal action against him
and no case was being registered against him and no allegations were made
against him before a Criminal Court is not true because defendants have
filed a protest application in the Court of learned MM for taking action
against the remaining persons, including the plaintiff which is pending
disposal. It is submitted that the plaintiff has admitted that he accompanied
Dr. Sharda Nayak and this fact was reported to the police by the defendants
on 12.05.2015. It is further argued by learned counsel that the plaintiff has
not disputed the fact that he represented Dr. Sharda Nayak in the suit titled
CS(OS) No.3094/2015 Page 24
as CS(OS) No.1011/2015 by her. By doing so, the plaintiff has admittedly,
acted against the interest of the Society since he is actively supporting and
conniving with the people who had acted illegally and against the interest of
the defendant no. 1/Society. It is argued that the plaintiff being a life
member of the defendant no. 1/Society could not have appeared in a case
against the Society and his appearance against the Society is in violation of
Rule 9 of Rules of the Advocate Duty towards Court and also against the
Rules of Professional Standard framed by Bar Council and in violation of
Section 35 of Advocates Act. It is argued that the plaintiff is doing a
somersault, now by challenging Rule II(7) being ultra vires and violative of
natural justice while he himself had cancelled the membership of Mr B.K.
Raizada under Rule 11(7), when he was working as Chairperson of
defendant No.1/Society and in the suit filed by Mr B.K. Raizada,
challenging the cancellation of his membership, and wherein he also
challenged the constitutionality of Rule 11(7), the plaintiff had defended the
constitutional validity of the said Rule. Now, when action is taken against
him invoking the same rules, it is not open to him to challenge its
constitutionality.
CS(OS) No.3094/2015 Page 25
18. Relying on Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai
Mody 1964(3) SCR 480; M/S. Seemax Construction (P) Ltd. v. State Bank
of India and another AIR 1992 Del. 197; Polymer Papers Ltd. v. Mr.
Gurmit Singh and Ors. AIR 2002 Del.530; T.A. George and Anr. v. Delhi
Development Authority and Ors. AIR 1995 Del.131, learned counsel has
argued that the one who seeks equity must do equity and come to the Court
with clean hands. Further, relying on the judgment of Supreme Court in the
case of M/S Gujarat Bottling Co.Ltd. & Ors vs The Coca Cola Co. & Ors
(1995) 5 SCC 545, it is argued that the Court has propounded and reiterated
the equitable principle that a party seeking interim relief must show that he
is not responsible for the state of things complained of. Further, relying on in
the case of Aligarh Muslim University (supra)(2000) 7 SCC 529 (para 23),
it is argued that the plaintiff is not entitled to interim relief. Learned counsel
has also relied on Apex Court‟s finding in A.C. Muthiah (supra) (para 138,
142, 147 and 149) and argues that the plaintiff is not entitled to the relief
because being a member of the defendant no.1/Society, instead of watching
the interest of the Society, he is pursuing his own interest in DPS World
Foundation and thus has the conflict of interest with defendant no. 1/Society.
It is argued that the powers of the Court in such matters are limited to an
CS(OS) No.3094/2015 Page 26
enquiry to judge if the action taken by the Society against its member,
cancelling his membership or expelling him from Society- is as per the rules
or Articles of the Association or not. It is submitted that the rules/Articles of
Association of Society are in the nature of contract between the Society and
its member and, therefore, the Court does not sit in appeal over the
expulsion order and reliance is placed on Ch. Hoshiar Singh Mann and
Ors. vs. Charan Singh and Ors. 162(2009)DLT 208 (para 21). It is further
argued that so long as the Society has acted in good faith its order cannot be
challenged. It is submitted that defendant No.1 has acted in good faith and in
the interest of the society and since the acts of the plaintiff were damaging
and against the interests of the society, the act of the defendant no. 1 is
justified. It is further argued that there is no bar in Society‟s Registration
Act against asking a member to withdraw, hence the Society retains the
power to ask any of its members to withdraw. It is further argued that the
Rule 11(7) is not ultra vires and the order of the Single Judge in Sarabjit
Singh and Ors (supra) was an interlocutory order and not a final order. In
appeal, the operation of the said order was stayed by Division Bench vide
order dated 10.07.1989 and later the said suit itself was withdrawn. Hence,
the reliance on that order is misplaced. It is further argued that Working
CS(OS) No.3094/2015 Page 27
Committee was properly constituted as per the rules and practices. The
plaintiff in the capacity of President of defendant no. 1, never insisted that
the members or Principals, Vice-Principals of DPS should participate in the
meeting of Working Committee. It is argued that the record shows that from
1993 to 2004 about 148 meetings were held where only 40 meetings were
attended by the Principal and Vice Principal. It is submitted that as per the
Resolution dated 11.12.2000 of defendant No.1, Vice Principals were not
required to be invited for the Working Committee and the said Resolution
was also confirmed by the plaintiff. It is submitted that the General Body
meeting held on 28.12.2001 was chaired by the plaintiff and the General
Body meeting approved the minutes of previous meeting wherein it was
resolved that Vice-Principal would not be invited. The plaintiff is thus
stopped from making this grievance. The plaintiff remained the President of
DPS Society for 15 years and was party to the said decisions and, therefore,
at this belated stage, he cannot challenge the formation of Working
Committee on this ground. It is further argued that the Working Committee
was duly consulted before the letter dated 24.07.2015 was issued. It is
further argued that no Resolution of the Working Committee is required
under the rules. Rule provides that "the Chairman of the Society may in
CS(OS) No.3094/2015 Page 28
consultation with the President and Vice-President or in consultation with
the Working Committee at any time by notice in writing require a member to
withdraw from the Society". It is submitted that the bare reading of the rule
shows that there is no requirement of a Resolution of a Working Committee,
let alone of General Body. It speaks only of consultation with the President
and Vice-President or with the Working Committee. It is submitted that the
Consultation with the Working Committee is not mandatory yet in this case
Working Committee was consulted. It is further submitted that in the earlier
suit of the plaintiff for the same relief in CS(OS) No. 1844/2008 titled as
Salman Khurshid vs. Delhi Public School Society, interim injunction was
refused to the plaintiff by this Court vide order dated 27.10.2009 on the
ground that the plaintiff had failed to show a prima facie case in his favour
as to how Rule II(7) is ultra vires. He has no prima facie case. It is argued
that from the admitted facts, it is evident that the plaintiff is not only having
an adverse interest but is also acting adversely and his acts are harming the
goodwill and the reputation of the defendant no. 1/Society thus, the balance
of convenience also does not lie in his favour. It is further argued that if the
plaintiff is allowed to remain a member of the Society in the present
scenario when he is working against the interest of the society, it is the
CS(OS) No.3094/2015 Page 29
Society which is ultimately going to suffer an irreparable loss and injury.
Reliance is also placed on Dorab Cawasji Warden v. Coomi Sorab Warden
and others AIR 1990 SC 867 (paras 12 to 15).
19. I have given thoughtful consideration to the rival contentions of the
parties and the arguments.
20. The Court at this stage has to consider whether the plaintiff has a
prima facie case in his favour in order to be entitled for ad interim
injunction. In its order dated 16.10.2015, this Court had already noticed that
one month period which was to be reckoned from the date of the impugned
letter dated 17.09.2015 is to expire on 16.10.2015. Therefore, the one month
period giving an option to the plaintiff to withdraw from the membership of
DPS Society or his membership would be ceased on expiry of one month
period, has already expired and, therefore, pursuant to this letter, the
membership of the plaintiff in defendant No.1/Society stands cancelled.
21. The defendants have acted under Rule II (7) of the Rules and
Regulations of the DPS Society and the plaintiff has challenged the vire of
Rule II (7) and argues that the rule which were identical to Rule II (7) was
under challenge before the Single Bench, this Court in Sarabjit Singh and
Ors. case (supra) and the Court declared the rules as ultra vires and the said
CS(OS) No.3094/2015 Page 30
order if not binding has persuasive effect. The defendants have argued that
the order in Sarabjit Singh and Ors. (supra) was challenged in Division
Bench which stayed the order of Single Bench and in SLP parties
compromised and withdrew the suit and in such scenario, the order of Single
Judge in Sarabjit Singh and Ors. (supra) is no longer a law. The orders in
Sarabjit Singh and Ors. (supra) shows that the Single Judge by an
interlocutory order declared the rules, which were identical to Rule II(7) of
Defendant No.1/Society, as ultra vires. The said order was stayed by the
Division Bench and thereafter matter was withdrawn settled. The order of
Single Judge thus is not operative and does not have any persuasive value,
either. The reliance on this case is of no consequence. It is also an
undisputed fact that the plaintiff himself while working as a President of
DPS Society using the said rule, cancelled the life-membership of Shri B.K.
Raizada and in the Court of Law, in the suit filed by Mr B.K. Raizada,
challenging the validity of Rule II(7), supported the constitutional validity of
the said Rule. The Court did not stay the action taken by plaintiff under Rule
II(7). Also, in the earlier suit of plaintiff, wherein also he had challenged the
validity of Rule II(7), no ad interim injunction was issued by Court. In view
CS(OS) No.3094/2015 Page 31
of this fact, at this stage, no prima facie view as to the nullity of the said
Rule can be taken.
22. In the case of M/S Gujarat Bottling Co.Ltd. (supra), the Supreme
Court has laid down the guidelines to be followed while considering the
application for grant of temporary injunction:-
"43. The grant of an interlocutory injunction during the
pendency of legal proceedings is a matter requiring the
exercise of discretion of the court. While exercising the
discretion the court applies the following tests -- (i)
whether the plaintiff has a prima facie case; (ii) whether the
balance of convenience is in favour of the plaintiff; and (iii)
whether the plaintiff would suffer an irreparable injury if
his prayer for interlocutory injunction is disallowed. The
decision whether or not to grant an interlocutory injunction
has to be taken at a time when the existence of the legal
right assailed by the plaintiff and its alleged violation are
both contested and uncertain and remain uncertain till they
are established at the trial on evidence. Relief by way of
interlocutory injunction is granted to mitigate the risk of
injustice to the plaintiff during the period before that
uncertainty could be resolved. The object of the
interlocutory injunction is to protect the plaintiff against
injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the
action if the uncertainty were resolved in his favour at the
trial. The need for such protection has, however, to be
weighed against the corresponding need of the defendant to
be protected against injury resulting from his having been
prevented from exercising his own legal rights for which he
could not be adequately compensated. The court must weigh
one need against another and determine where the "balance
of convenience" lies. [See:Wander Ltd. v. Antox India (P)
Ltd. [1990 Supp SCC 727] , (SCC at pp. 731-32.] In order
CS(OS) No.3094/2015 Page 32
to protect the defendant while granting an interlocutory
injunction in his favour the court can require the plaintiff to
furnish an undertaking so that the defendant can be
adequately compensated if the uncertainty were resolved in
his favour at the trial."
The plaintiff can be said to have a prima facie case in his favour for
grant of ad interim injunction when he has a right which needs protection
against the alleged violation of that right. In this case, a show-cause notice
dated 24.07.2015 was issued before the impugned letter/notice was issued.
The said notice was issued because certain acts of the plaintiff were
considered against the interest of the defendant no.1/Society. Those acts of
the plaintiff were explained in the said notice. The plaintiff in its reply has
not denied any of such incidents and acts, but had given the explanations of
such incidents and facts. He has not denied that he had visited the DPS
Society on 30.03.2015 along with Dr. Sharda Nayak and entered into the
Chairman‟s Office when the Chairman was outside India. He, however, has
taken the plea that it was done at the request of a Dr. Sharda Nayak. The
defendants took criminal action by filing a FIR against Dr. Sharda Nayak,
and other conspirators. The plaintiff‟s contention in his reply to show-cause
notice dated 21.08.2015 that he came to know of the alleged incident that
Dr. Sharda Nayak had taken over as a Chairman of the Society and after
CS(OS) No.3094/2015 Page 33
hacking the e-mail of the Society issued certain orders only on the next
morning, i.e., 31.03.2015 from the newspaper reporting does not inspire
confidence for the reason that the plaintiff could not have learned of the
incident through morning newspaper of 31.03.2015 because the matter itself
was reported by the defendants against Dr. Sharda Nayak to the Police on
31.03.2015 and FIR was also recorded only on 31.03.2015. The plaintiff has
also not denied that he had accepted the brief on behalf of Dr. Sharda Nayak
and contested her case. The grievance of defendants is that Dr. Sharda
Nayak had acted against the interest of defendant no.1/Society. If the
plaintiff despite being life member of defendant no. 1/Society supports the
person acting against the interest of Society, the only conclusion that can be
drawn is that he is acting against the interest of Society. The other ground
for expulsion is that the plaintiff has floated a parallel institution in the name
DPS World Foundation and also launched a function on 16.08.2015, at 6.30
PM at the Grand Ballroom of the Leela Palace, Chanakyapuri, New Delhi
and in that function as a life trustee of the foundation delivered a speech and
also invited members of the defendant no. 1, Principal and Pro-Vice
Principal of all schools associated with DPS. The said DPS World
Foundation is alleged to be the personal initiative of the plaintiff and the
CS(OS) No.3094/2015 Page 34
allegations are that it is trying to cash upon the goodwill of the defendant-
Society and thereby infringed its intellectual property rights. The defendants
also filed a Suit bearing CS(OS) No.154/2016 for infringement of their
intellectual property rights and stay was granted to them against DPS World
Foundation. The plaintiff has not denied his association with DPS World
Foundation, which he claims is initiative of Dispites of which he is one of
the patron. The legal right of the plaintiff to continue to be life member of
defendant Society was subject to certain conditions and one was that life
member should not act to the detriment and against the interest of defendant
Society.
23. The above mentioned facts prima facie show that the plaintiff has
been acting against the interest of the defendant no.1/Society. The plaintiff
thus has failed to show prima facie the existence of a legal right in his
favour which needs to be protected during pendency of suit
24. The above facts also prima facie show that defendants have been
acting bona fidely while issuing the show-cause notice dated 24.07.2015. It
was after considering the reply of the plaintiff that the impugned letter was
issued. In view of the above, it is apparent that plaintiff has no prima facie
case in his favour. The balance of convenience also does not lie in his
CS(OS) No.3094/2015 Page 35
favour. Also on expiry of 30 days period from the date of the impugned
letter, he ceases to be a member of the defendant no. 1/Society.
25. The application, therefore, has no merit and the same is dismissed.
CS(OS) 3094/2015
List before the Roster Bench on 01.09.2017.
DEEPA SHARMA
(JUDGE)
AUGUST 24, 2017
BG
CS(OS) No.3094/2015 Page 36
