Karnataka High Court
M/S Precision Granite And Marble Pvt Ltd vs Federation Of Indian Granite And Stone ... on 18 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 8150 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8150 OF 2023 (CPC)
BETWEEN:
M/S PRECISION GRANITE
AND MARBLE PVT LTD
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF THE
INDIAN COMPANIES ACT, 1956
AND HAVING ITS OFFICE AT NO.140
AND 140A, 2ND PHASE
BOMMASANDRA INDUSTRIAL AREA
BENGALURU-560099
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI VISHAL SURANA
AGED ABOUT 43 YEARS
S/O J B SURANA
...APPELLANT
(BY SRI. ABHINAV RAMANAND A, ADVOCATE)
Digitally signed
by
DHANALAKSHMI AND:
MURTHY
Location: High
Court of 1. FEDERATION OF INDIAN GRANITE
Karnataka
AND STONE INDUSTRY
A SOCIETY REGISTERED UNDER
THE PROVISIONS OF THE KARNATAKA
SOCIETIES REGISTRATION ACT 1960
AND HAVING ITS OFFICE AT NO.429/7
12TH CROSS ROAD, SADASHIVA NAGAR
BENGALURU -560 080
REPRESENTED BY ITS PRESIDENT
2. SRI ISHWINDER SINGH
AGED MAJOR
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MFA No. 8150 of 2023
PRESIDENT
FEDERATION OF INDIAN GRANITE
AND STONE INDUSTRY
NO.429/A, 12TH CROSS ROAD
SADASHIVA NAGAR
BENGALURU-560080
3. SRI S KRISHNA PRASAD
AGED MAJOR
GENERAL SECRETARY
FEDERATION OF INDIAN GRANITE
AND STONE INDUSTRY
NO.429/7, 12TH CROSS ROAD
SADASHIVA NAGAR
BENGALURU-560080
4. DISCIPLINARY SUB COMMITTEE
FEDERATION OF INDIAN GRANITE
AND STONE INDUSTRY
NO.429/7, 12TH CROSS ROAD
SADASHIVA NAGAR
BENGALURU-560080
REPRESENTED BY ITS CHAIRMAN
5. EXECUTIVE COMMITTEE
FEDERATION OF INDIAN GRANITE
AND STONE INDUSTRY
NO.429/7, 12TH CROSS ROAD
SADASHIVA NAGAR
BENGALURU-560 080.
REPRESENTED BY ITS PRESIDENT
...RESPONDENTS
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. ANOOP HARANAHALLI, ADVOCATE AND
SRI. YESHU MISHRA, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED
10.11.2023 PASSED ON I.A.NO. 1 IN OS.NO.1057/2023 ON
THE FILE OF THE VIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, REJECTING THE I.A.NO.1 FILED UNDER
ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.
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MFA No. 8150 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff under Order 43
Rule 1(r) of CPC, challenging the order dated 10.11.2023
passed by the VIII Additional City Civil & Sessions Judge
(CCH-15), Bengaluru whereby IA No.1 filed by the plaintiff
under Order 39 Rules 1 and 2 of CPC in
O.S.No.1057/2023 has been rejected and the ex-parte
order granted on 15.02.2023 has been vacated.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial court.
3. The plaintiff filed a suit for the following relief:
(i) A judgment and decree declaring the
resolution passed in the 292nd Executive
Committee Meeting dated 16.06.2022 of the 1st
defendant Federation disqualifying and
terminating the Life Membership of the plaintiff
in the Federation of Indian Granite and Stone
Industry (1st defendant) and which is
communicated to the plaintiff by notice bearing
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No.FIGSI/Notice/943 dated 15.07.2022 as
illegal and void-ab-initio;
(b) A decree of permanent injunction
restraining the defendants, their officers, men
and any other person acting or claiming
through them from denying or any manner
depriving the plaintiff of all the benefits that are
extended to members of the 1st defendant
Federation."
Along with the plaint, he has also filed IA No.1 under
Order 39 Rules 1 and 2 of CPC, seeking temporary
injunction restraining defendant No.1 from giving effect to
or bring into operation the resolution passed by 292nd
Executive Committee Meeting held on 17.06.2022 in so far
as the disqualification of the plaintiff from the membership
of the first defendant Federation. The trial court granted
an ex-parte injunction order on 15.02.2023. After service
of notice, defendants appeared through counsel and filed
their objection. After hearing the parties, by the
impugned order dated 10.11.2023, the trial court rejected
the IA filed by the plaintiff under Order 39 Rules 1 and 2
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of CPC and vacated the ex-parte interim order granted on
15.02.2023. Being aggrieved by the same, plaintiff has
filed this appeal.
4. Sri Abhinav Ramanand, the learned counsel
appearing for the appellant/plaintiff has raised the
following contentions:
(i) Firstly, the order of termination is issued by the first
defendant - Federation on 15.07.2022 without giving
notice to the plaintiff. In fact, as per the impugned order,
the notice is served to only J.B.Surana and no notice has
been issued to the plaintiff - Company.
(ii) Secondly, the termination order has been issued
on the basis that the plaintiff has violated Clauses 7.8(g)
and (h) of the Bye-law of the first defendant - Federation.
In fact, it has not violated any clause of the Bye-law of
respondent No.1.
(iii) Thirdly, the plaintiff - Company has not filed any
writ petition before the High Court of Karnataka. The writ
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petition which is referred to in the termination order is
filed by one J.B.Surana. The allegation is also against
J.B.Surana, the plaintiff - Company has nothing to do with
the writ petition filed by J.B.Surana. The Company has
not authorized him to file any writ petition.
(iv) Fourthly, J.B.Surana, is an ex-President and
Member of Advisory Committee of the first defendant -
Federation. In the interest of Federation, he has filed a
writ petition in his individual capacity.
(v) Fifthly, even before filing the writ petition he has
given a representation to the Federation on 31.10.2020
explaining that the amendment of bye-law is contrary to
the interest of the members of the Federation. Inspite of
his request, there is no change in the bye-law, on the
other hand, it has been sent for approval of the Registrar.
Since the Registrar has approved the bye-law, J.B.Surana
has no other alternative but to approach this Court.
Therefore, even for the sake of argument, if it is
considered that the writ petition is filed on behalf of the
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plaintiff - Company, they have complied Clause 7.8(g) of
the Federation Bye-law.
(vi) Sixthly, even though in the impugned termination
order they sought that there is violation of Clause 7.8(h)
of the Bye-law, there is no discussion regarding the
forgery of the signature of the petitioner in the writ
petition filed before this Court in W.P.No.10292/2020, in
the proceedings of the Executive Committee Meeting. For
the first time, this allegation has been made in the show-
cause notice and in the final order. Therefore, the notice
issued by respondent No.1 is without authority of law.
(vii) Seventhly, there is no complaint lodged by any
of the petitioners, who are parties to the writ petition.
There is no allegation that the signature has been forged,
the only allegation is that without disclosing correct facts,
signature has been obtained. Hence, he contended that
this aspect has not been looked into by the trial court, the
trial court under the wrong impassion that J.B.Surana is
representing the plaintiff - Company and plaintiff -
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Company authorized J.B.Surana to file a writ petition and
he has filed a writ petition on behalf of the plaintiff -
Company in violation of first defendant's Bye-law, has
erred in rejecting the IA filed by the plaintiff under Order
39 Rules 1 and 2 of CPC. Hence, he prays for allowing of
the appeal.
5. Per contra, Sri Ashok Harnahalli, learned Senior
Counsel appearing for the respondents/defendants has
raised the following contentions:
(i) Firstly, M/s. Precision Granite and Marble Pvt. Ltd.
is a Company having only two directors, one is J.B.Surana
and another one is Vishal Surana, who is the son of
J.B.Surana. Even though Vishal Surana is the Managing
Director of the plaintiff - Company, he has authorized
J.B.Surana to represent the Company. W.P.No.
10292/2020 has been filed by J.B.Surana representing
the plaintiff - Company. It is not in his individual capacity.
(ii) Secondly, the said writ petition has been filed by
obtaining the signature of other petitioners by fraud. The
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petitioner Nos. 4 to 7 have withdrawn the case by filing a
memo, only petitioner Nos. 1 to 3 were prosecuting the
case. The writ petition has been dismissed by order dated
03.09.2021. On 30.05.2022, writ appeal in W.A.No.
1098/2021 has been dismissed by confirming the order
passed by the learned Single Judge and that has been
confirmed by the Apex Court in SLP (Civil)
No.15040/2022. Therefore, in the cause-title of the writ
petition, even though J.B.Surana is shown as the Director
of M/s.Precision Granite and Marble Pvt. Ltd., he is the one
who is authorized to represent the plaintiff - Company, he
has filed the writ petition on behalf of the Company. Since
the said Company is a member of the first defendant-
Federation, before challenging the amendment of bye-law,
as per Clause 7.8(g) of the Bye-law, he has not
approached the Federation. Hence, the plaintiff has
violated the Bye-law of the Federation.
(iii) Thirdly, the other petitioners in the writ petition
have given representations before the Federation that
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their signature has been forged by J.B.Surana. Since there
is a serious allegation against J.B.Surana, who is an
authorized person and director to represent the plaintiff -
Company and since he has violated Clauses 7.8(g) and (h)
of the Bye-law, the Executive Committee has taken a
decision to remove the plaintiff - Company from the
membership of the Federation. Thereafter, a show-cause
notice has been issued on 26.11.2021. Since J.B.Surana
was representing the plaintiff - Company, it has been
issued in his name as a Director of M/s.Precision Granite
and Marble Pvt. Ltd. On 30.12.2021, one more notice has
been issued for personal hearing. He has not appeared
before the Committee and he has not denied the
allegations made against him. Therefore, the order of
termination has been passed terminating the plaintiff -
Company from the membership of the first defendant -
Federation. The trial court, after considering all these
aspects, has rightly vacated the ex-parte temporary
injunction granted, by dismissing the IA filed under Order
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39 Rules 1 and 2 of CPC. Hence, he sought for dismissal
of the appeal.
6. Heard the learned counsel for the parties and
perused the impugned order.
7. It is not in dispute that the plaintiff filed a suit for
the aforesaid reliefs. He has also filed an application
under Order 39 Rules 1 and 2 of CPC seeking temporary
injunction restraining the defendant No.1 from giving
effect to or bring into operation the resolution passed by
292nd Executive Committee Meeting held on 17.06.2022 in
so far as the disqualification of the plaintiff from the
membership of the first defendant Federation which is
communicated to the plaintiff by notice dated 15.07.2022
and consequently direct the defendant to extend all
membership benefits to the plaintiff by order of temporary
injunction against the defendant till the deposal of the
suit.
8. As per the records produced by the parties, the
plaintiff - Company has two directors, one is J.B.Surana
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and another one is Vishal Surana who is the son of
J.B.Surana and who is the Managing Director of the
plaintiff - Company. The Managing Director has authorized
J.B.Surana to represent the plaintiff - Company. The
specific allegation of first defendant - Federation is that
the plaintiff - Company has violated the Clauses 7.8(g)
and (h) of the Federation Bye-law. Therefore, the
Federation has given a show-cause notice on 26.11.2021
to J.B.Surana, Director of M/s.Precision Granite and
Marbles Pvt. Ltd. Even though notice is addressed to
J.B.Surana, prima-facie, it appears that it is issued to
J.B.Surana who is representing M/s.Precision Granite and
Marbles Pvt. Ltd., i.e., plaintiff - Company, which is the
member of the first defendant - Federation. In the notice,
it is specifically stated that there is violation of Clauses
7.8(g) and (h) of the Bye-law and serious allegation is
made against the plaintiff - Company that J.B.Surana,
who is representing the plaintiff - Company has filed a writ
petition in W.P.No.10292/2020 before the High Court of
Karnataka violating Clause 7.8(g) & (h) of the Bye-law.
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In the show-cause notice, a serious allegation is made that
the Federation has received a complaint from some of the
petitioners who are parties in the writ petition, later they
have withdrawn the writ petition but their signature has
been forged by J.B.Surana, and J.B.Surana representing
the plaintiff - Company has not denied the allegation
made against him. Even on, 30.12.2021, first defendant -
Federation has given a notice for personal hearing but he
has not appeared. On going through the records produced
by the parties, prima-facie, it appears that the plaintiff -
Company is represented by J.B.Surana and he has
received the notice on behalf of the plaintiff - Company.
9. The trial court, after going through the records
produced by the parties, has exercised the discretionary
jurisdiction by rejecting the IA filed by the plaintiff under
Order 39 Rules 1 and 2 of CPC on the ground that he has
not made out any prima-facie case and the balance of
convenience is also in favour of the defendants. The well
considered order of the Trial Court granting injunction or
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refusing injunction cannot be varied or modified or
annulled by the appellate court dealing with an appeal filed
under Order 43 Rule 1(r) of CPC, unless the said order
suffers from any absurdity or perversity.
10. Viewed from any angle, the order in question is
neither opposed to law nor facts nor probabilities. Even if
the appellate Court were to come to a different conclusion
than that of the one arrived at by the Trial Court, it cannot
be substituted or varied, unless the order suffers from any
absurdity or perversity. Suffice to state that the order
does not suffer from any absurdity or perversity.
Therefore, this Court cannot interfere with the well
considered order passed by the Trial Court and hence, the
appeal is liable to be dismissed.
ORDER
a) The appeal is dismissed.
b) The order dated 10.11.2023 passed by VIII
Additional City Civil and Sessions Judge,
Bengaluru on I.A.No.I filed under Order 39 Rules 1
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and 2 read with Section 151 of CPC in
O.S.No.1057/2023, is confirmed.
c) It is made clear that any observation made in the
order is only for the purpose of deciding this
appeal. The trial court is directed to decide the
suit, in accordance with law, without being
influenced by the observations made in this order.
Sd/-
JUDGE
CM
