Karnataka High Court
The Basavanagudi vs Vasudeva Rao on 5 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 749 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 749 OF 2022 (DEC/INJ)
BETWEEN:
1. THE BASAVANAGUDI
UNION AND SERVICE CLUB
NO 60, SRI KRISHNA RAJENDRA ROAD
BASAVANAGUDI
BENGALURU - 560004
REP BY ITS SECRETARY
2. THE PRESIDENT
THE BASAVANAGUDI UNION
AND SERVICE CLUB
NO 60, SRI KRISHNA RAJENDRA ROAD
BASAVANAGUDI
Digitally BENGALURU - 560004
signed by ...APPELLANTS
VANDANA S
(BY SRI. H.A.ASHOK., ADVOCATE)
Location:
HIGH
COURT OF AND:
KARNATAKA
VASUDEVA RAO
S/O LATE D GOPAL RAO
AGED ABOUT 67 YEARS
MEMBERSHIP NO V - 19
R/AT NO 19, 4TH MAIN ROAD
HANUMANTHANAGAR
BENGALURU - 560019
...RESPONDENT
(BY SRI. M.K. SABINA., ADVOCATE)
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RFA No. 749 of 2022
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 23.02.2022 PASSED IN OS
No.5223/2017 ON THE FILE OF THE X ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants in O.S.No.5223/2017 is
directed against the impugned judgment and decree dated
23.02.2022 passed by the X Additional City Civil and Sessions
Judge, Bengaluru, (hereinafter referred to as the 'Trial Court' for
short), whereby the said suit filed by the respondent-plaintiff
against the appellants-defendants for declaration that the notices
dated 11.08.2016 and 23.01.2017 issued by the appellants
purporting to terminate the membership of the respondent in the
appellant No.1-Club was declared as null and void and the
appellant No.1-Club was restrained by a decree for permanent
injunction from obstructing the respondent-plaintiff from using the
Club facilities as its member subject to certain conditions.
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2. Heard Sri H.A.Ashok, learned Counsel for the appellants-
defendants and Smt.M.K.Sabina, learned Counsel for the
respondent-plaintiff and perused the material on record.
3. The material on record discloses that the respondent is a
member of the appellant No.1-Club and appellant No.2 is the
President of the appellant No.1-Club. On 11.08.2016 and
23.01.2017, the appellant No.1-Club issued notices to the
respondent-plaintiff purporting to terminate his membership putting
forth various allegations against the respondent.
4. Pursuant thereto, the membership of the respondent in the
appellant No.1-Club having been terminated by the appellants, the
respondent instituted the aforesaid suit for declaration, permanent
injunction and other reliefs.
5. The said suit having been contested by the appellants, the
Trial Court framed the following:
ISSUES:
1. Does plaintiff proves that the termination of plaintiff's
membership by defendant-Club is illegal, null and void?
2. Does plaintiff proves that two notices dated
11.08.2016 issued by the defendants and final
communication dated 23.01.2017 refusing to revoke
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termination of plaintiff's membership in defendant-Club
is null and void?
3. Does plaintiff proves that the defendants are liable
to be permanently restrained from obstructing the
plaintiff to use the facilities of the defendant Club as its
member?
4. Does plaintiff is entitled for the reliefs sought for?
5. What order or decree?
6. The plaintiff examined himself as PW1 and Exs.P1 to 8 were
marked, while the Secretary of the appellant No.1-Club examined
himself as DW1 and Exs.D1 to D17 were marked on their behalf.
After hearing the parties, the Trial Court answered issue No.1 in
the affirmative, thereby holding that the termination of the plaintiff's
membership by the defendant-Club was illegal, null and void. So
also, the Trial Court answered issue Nos.2 and 3 in the affirmative
in favour of the plaintiff and came to the conclusion that the notices
dated 11.08.2016 and 23.01.2017 terminating the membership of
the plaintiff in the appellant No.1-Club and refusing to revoke his
termination was null and void and consequently, restrained the
appellants-defendants from obstructing the respondent-plaintiff
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from using the facilities of the Club as its member. Accordingly, the
Trial Court proceeded to decree the suit as prayed for by the
plaintiff, aggrieved by which, the appellants-defendants are before
this Court by way of the present appeal.
7. A perusal of the material on record including the impugned
judgment and decree will indicate that the Trial Court has correctly
and properly considered and appreciated the entire material on
record including the pleadings and evidence of the parties and has
recorded the following findings:
ORDER
8. Issue No.1 and 2:- Since both these issues
are interconnected they are tried together to avoid repetition
of facts. It is the specific case made out by the plaintiff that
he is the member of the defendant No.1- Club since past 30
years and has been utilizing the facilities of the said Club
which has provided to its members many social recreation
facilities like indoor and outdoor games including facilities of
library, bar, canteen and entertainment etc. He also claims
that he has been regularly paying the charges payable to the
said Club as its member. However it is his case that due to
his personal commitment and other work he could not
frequently visited the Club or frequently utilize all the
facilities offered by the defendants Club since past one or
two years and ultimately he was made aware of the fact that
there were certain non-usage charges which are payable to
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the Club and other amounts arising out of the use of the
recreation and other facilities of the Club and therefore he
requested the President of the defendant No.1-Club i.e.,
defendant No.2 on 20.11.2015 by an application seeking to
waive off the pending payments towards non-usage charges
on the ground of non-usage of the facilities.
9. It is the further claim of the plaintiff that once again on
14.01.2016 he made request to the defendants to consider
him as a senior citizen member and both his requests were
not properly responded to by the defendants-Club and
though he was ready to make the payment, it has not been
considered by the defendants and ultimately he was issued
with two separate notices from the defendants-Club on
11.08.2016 rejecting his request for waiver off pending
payments and in other notice there was a mention made
about a final notice dated 09.07.2016 being sent to him
stated to have been returned as unclaimed and that as per
the bye-laws of the defendant Club his membership has
been terminated and he was restrained from entering the
Club premises. Thus it is the grievance of the plaintiff that
these two notices issued by the defendant No.1 Club are
contrary to the terms of bye-laws of the Club and also
against the principles of natural justice.
10. The claim of the plaintiff has been categorically
refuted by the defendants Club according to whom it had
acted in accordance with law and purely as per the terms of
the bye-laws of the Club. It is the justification pleaded by the
defendants that as per the legislation of the Government of
India and the State Government, the members of the Club
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are provided with the said facilities which come under the
purview of luxury tax payable to the Govt. and therefore all
the members have to mandatorily pay luxury tax and there is
no exemption in this regard.
11. It is further contended by the defendants that the
decision was unanimously taken by all the members in an
annual general body meeting held in the year 2011 wherein
it was resolved that in order to maintain the Club apart from
recovering the regular charges, the members are also liable
to pay the charges of non-usage of the facilities amounting
to Rs.165.41 Ps. and the said resolution was already
incorporated in the bye-laws after getting approval from the
Registrar of the Co-operative Societies and therefore since it
was an unanimous decision taken as per the law, the plaintiff
is also bound by it being the member of the Club and
therefore he cannot seek any exemption in this regard, but
despite knowing the said fact he remained in arrears of the
charges for non-usage of the facilities for long period and
therefore notices were issued to him which were also not
responded to by him and ultimately the defendant No.1
Club has to terminate his membership as per law and also
as per the terms of bye- laws of the Club. In view of this
justification pleaded by the defendants, the burden is on the
plaintiff to prove as to how the said notices are bad in law
and as to how the termination of his membership is in
violation of the bye- laws of the Club.
12. To substantiate his case the plaintiff has deposed
before the Court as P.W.1 and produced 8 documents of
which Ex.P.1 is said to be the representation given by him to
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the defendant No.1 Club seeking waiver of pending
payment for non-usage of facility, Ex.P.2 is the reply issued
by the defendant No.1 Club to the plaintiff wherein it is stated
that after discussing his request with the Executive
Committee it was decided that as per the bye-laws there is
no such provision for waiving of the pending payments and
thereby his request was refused. Again on the very same
day Ex.P.3- letter has been issued by the defendant stating
that their final notice dated 09.07.2016 sent to P.W.1 has
been returned as not claimed and therefore as per Clause-
5(iii) of the Bye-laws his membership has been terminated
for non-payment of dues and further his entry in the Club
premises was also restricted.
13. As regards Ex.P.4, it is said to be a reminder issued
by P.W.1 to the President of the defendant No.1 Club
wherein he has reiterated that the notice of termination of his
membership is not in accordance with the conditions of bye-
laws and it is also stated that he will pay the non-usage dues
and had sought for reply from the defendant. As regards
Ex.P.5, it is another letter issued by P.W.1 on 22.11.2016 to
the defendant stating that his suspension is not according to
law and to allow him to pay the dues and to restore his
membership. He has also produced Ex.P.6 which is a
notice of extra-ordinary general body meeting of the
defendant Club. This also includes the bye-laws of the
Club.
14. As regards Ex.P7, it is the legal notice issued by
P.W.1 to the defendant Club calling upon it to withdraw all its
notices issued to him terminating his membership and
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restraining him from entering the Club premises. Ex.P.8 is
the reply issued by the defendant Club to the letter dated
09.12.2016 issued by P.W.1 stating that his termination
cannot be revoked as per the bye-laws. As against this oral
and documentary evidence placed before the Court by
P.W.1, as stated supra, the Secretary of the defendant
Club has also deposed before the Court as D.W.1 and he
has also relied on as many as 15 documents in support of
their defence.
15. As regards Ex.D.1, it is the notice which was issued to
P.W.1 through registered post which was returned as not
claimed by him. Ex.D.2 is the ledger entries maintained by
the defendant Club with respect to the minimum usage
charges payable to it from the members. As regards Ex.D.3,
it is the notice dated 27.07.2016 which was said to have
been put in the notice board of the Club showing the dues
payable by P.W.1 towards the charges of non-usage of
facilities. Ex.D.1 to 3 were the documents admitted by P.W.1
and therefore they were got marked during the course of
his cross- examination. As regards Ex.D.4, it is the
authorization letter issued to D.W.1 by the defendant Club
authorizing him to represent the defendants.
16. As regards Ex.D.5, it is the Hand Book of Rules and
Bye-laws of the defendant Club. Again Ex.D.6 is the
statement of arrears of dues payable by P.W.1. Ex.D.7 is the
same letter dated 20.11.2015 by P.W.1 which is already
marked in his evidence as Ex.P.1. As regards Ex.D.8, it is
also the same letter which is marked at Ex.P.2. As regards
Ex.D.9, it is the postal AD slip. Ex.D.10 is the notice issued
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to P.W.1 and other members calling upon them to clear the
dues payable by them. As regards Ex.D.11, it is the letter
dated 19.08.2016 written by P.W.1 to the Secretary of the
Club wherein he had pleaded his willingness to make
payment. As regards Ex.D.12, it is the same document
which is marked at Ex.P.4 in the evidence of P.W.1. Ex.D.13
is the letter issued by P.W.1 to the President of the
defendant Club requesting to revoke his suspension of
membership. As regards Ex.D.14, it is also a letter dated
29.04.2017 written by P.W.1 addressed to the President of
the defendant Club. Ex.D.15 is also one such letter dated
09.12.2016. Ex.P.15 is the same copy of Ex.D.13.
17. In the backdrop of this oral and documentary evidence
placed before the Court by both the parties now it is to be
seen whether the disputed notices issued by the defendant
Club to P.W.1 are in accordance with law and in accordance
with bye-laws of the defendant Club. The undisputed facts
involved in the case are with regard to the earlier
membership of P.W.1 with the defendant Club and his earlier
user of the facilities provided by the Club. It is also an
admitted fact that for some period the plaintiff had not
regularly used the facilities of the Club which is admitted by
him in his pleadings itself. No doubt he had not regularly
used the said facilities of the defendant Club for about 2-3
years even as per his own admissions, but despite such
non-user of the facilities whether the defendants are justified
in terminating his membership for non-payment of dues and
whether such termination is in consonance with and in
accordance with their bye-laws, is only crucial disputed issue
involved in the case.
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18. Both the counsels have submitted their respective
written arguments in this case reiterating their respective
stands taken in their pleadings. At the first instance the
learned counsel for plaintiff in his written argument has
once again invited my attention to the terms of bye-laws of
the defendant Club and it has been also reiterated as to how
the defendant Club has not followed these bye-laws while
terminating his membership. It is the specific grievance of
P.W.1 that Clause-5(iii) of the Bye- laws specifically
mandates issuance of notice by 3 different modes i.e.,
RPAD, courier, SMS or e-mail. This fact is also not denied
by the defendant Club.
19. It is the allegation of P.W.1 that the defendant Club
except issuing notice to him through registered post, has not
complied with the other requirements i.e., sending of notice
through courier and also through SMS or e-mail and
therefore the very issuance of notice without complying with
these material requirements of bye-laws is bad in law and
consequently the termination of his membership through
such mode is also illegal. However, it is the defence of the
defendants that the Bye-laws require the issuance of notice
through any one of the four modes contemplated therein.
How far this contention of the defendants could be accepted,
is to be seen.
20. The learned defence counsel for the first time during
the course of his arguments raised the issue regarding the
very jurisdiction to entertain and try this suit. He has
vehemently argued that the dispute involved in the case is
one between the plaintiff Club and its member which touches
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the very management and administration of the Club which
is admittedly registered under the provisions of Societies
Registration Act and therefore, the competent authority to
resolve this dispute is the Registrar and therefore, this court
lacks jurisdiction to decide this case. In support of his
arguments he has also sought rely on a couple of decisions
of the Hon'ble High Court reported in T.P. Davar v/s Lodge
Victoria No.363, S.C. Belgaum in Supreme Court Reports
1964 Page-2 wherein it is held that the source of power to
expel members is not governed by the provisions of the Act
since the members are governed by contracts and rules
must be strictly observed and therefore the jurisdiction of the
civil court is barred to entertain any such disputes between
the members.
21. Thus what has been observed in the above cited
decision is that the source of the power of Associations,
Clubs and Lodges to expel their members is the contract on
the basis of which they become members and the
members are bound by the rules of the Lodge. It is further
held that the jurisdiction of civil courts in such cases is
limited and it cannot be held that the civil courts sit as a court
of appeal from the decision of such a body.
22. The same principles laid down in the above cited
decision where reiterated by the Hon'ble High Court in a
subsequent decision reported in Dr.K.T. Shivaiah v/s G.P.
Puttaswamy Gowda in ILR 1993 Kar 1563 which is also
cited by the learned defence counsel. In this decision, the
petitioner therein had questioned the termination of his
service as Secretary of the Association and in that context of
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the matter the Hon'ble High Court held that it is the Central
Committee which is competent to appoint the Secretary of
the Association and can also exercise the powers of the
Central Committee and the rules and regulations framed by
a Society like the one involved in that case are not statutory
provisions as such but they are in the nature of a contract
between the members and members and members and the
society and therefore these rules are not enforceable in a
court of law.
23. With due regards to the principles laid down in the
above cited decisions before considering the application or
otherwise of such principles to the present case it is to be
seen whether the case on hand warrants the application of
those principles. No doubt in the instant case the defendant
herein is also not a Society but it is a Club and though it is
registered under the Societies Registration Act, but it is to be
noted that a Club merely because it is registered under the
said Act it does not assume the character of a Society so as
to come under the strict purview of the Act. In other words, a
Club is not a Society and even in the decisions cited above,
it is well settled that the bye-laws of such Societies or
associations registered under the Societies Registration Act
are supreme as rightly pointed out by the plaintiff's counsel
and therefore the court in the case on hand has to look into
whether the defendants Club has acted strictly in
accordance with the said bye-laws or whether it has violated
the principles of natural justice.
24. It is further significant to note that as discussed supra,
the defendant herein is registered not under the Companies
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Act or Co-operative Societies Act, but it is registered under
the Societies Registration Act. Section 25 of the Act gives
power to the Registrar to deal with certain aspects
concerning the said associations or societies which are
registered under the said Act. Section 25 of the Act runs
thus:
Section 25
Enquiry by the Registrar, etc
(1) The Registrar may on his own motion and shall
on the application of the majority of the members of the
governing body or of not less than one-third of the
members of the society, hold an enquiry or direct some
person authorised by him by order in writing in
accordance with the rules made in this behalf to hold an
enquiry into the constitution, working and financial
condition of a registered society.
(2) The Registrar or the person authorised by him under
sub-section (1) shall have the following powers,
namely,-
(a) he shall, at all reasonable times, have free access to
the books, accounts, documents, securities, cash and
other properties belonging to or in the custody of the
society and may summon any person in possession or
responsible for the custody of any such books,
accounts, documents securities, cash or other
properties to produce the same at any place at the
headquarters of the society or any branch thereof;
(b) he may summon any person who, he has reason to
believe, has knowledge of any of the affairs of the
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society to appear before him at any place at the
headquarters of the society or any branch thereof and
may examine such person on oath;
(c) (i) he may, notwithstanding anything contained in
this Act or in any rule or regulation prescribing the
period of notice for a general meeting of the society,
require the governing body of the society to call a
general meeting at such time and place at the
headquarters of the society or any branch thereof and to
determine such matters as may be directed by him. If
the governing body of the society refuses or fails to call
a meeting, he shall have power to call it himself;
(ii) any meeting called under sub-clause (i) shall have all
the powers of a general meeting called under the rules
or regulations of the society and its proceedings shall
be regulated by such rules or regulations;
(iii) when an enquiry is made under this section, the
Registrar shall communicate the result of the enquiry to
the society concerned.
25. If we read the above provision contained U/S 25 of the
Act, it could be said that the Registrar can though discharge
certain duties or has got certain powers to deal with certain
issues concerning the administration or management of the
said association, but those acts are in the nature of having
access to the books and accounts in the custody of the
Society, to summon any person having custody of such
records, summon any person having knowledge of the
affairs of the Society to appear before him and examine such
person on oath, may require the Governing Body of the
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Society to call a general meeting and determine such
matters as directed by him. Thus nowhere the provision
deals with the resolution of any disputes by the Registrar
arising between the members or the Club or Association,
etc. On the contrary the acts which are enumerated in
Section 25 of the Act are purely touching the administration
and management of the Society by the governing body.
Therefore as rightly pointed out by the plaintiff's counsel, it
cannot be said that there is any such express bar contained
under the Act to approach the civil court for resolution of the
dispute of the nature which is involved in the present case.
26. Moreover as stated supra a Club cannot be termed as
a Society so as to bring it within the ambit of the Act. Hence,
U/S 9 of CPC it cannot be said that this court lacks
jurisdiction to entertain the dispute of the present nature.
Therefore the exhaustive argument canvassed by the
learned defence counsel for the first time in the arguments
that this court lacks jurisdiction to adjudicate the present suit,
cannot be accepted. Consequently the ratio laid down in the
above cited decisions relied on by the counsel cannot be
applied to the facts on hand.
27. As discussed supra, if we read Section 25 of the Act,
it can safely be held that there is no such express bar for a
member of a society to approach the civil court for redressal
of his grievance and under such circumstances the
jurisdiction of the civil court cannot be held to be ousted. In
this regard it would be relevant to refer the decision cited by
the plaintiff's counsel reported in Amiya Vilas Swami &
others v/s Shankha Brita Das & others in 2007(6) AIR
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Kar R 562 wherein the Hon'ble High Court has clearly dealt
with this aspect as under:
"Karnataka Societies Registration Act (17 of 1960),
S.25- Civil P.C. (5 of 1908), S.9- Ouster of jurisdiction of
civil Court- Constitution, of a registered Society- No
adequate, effective and sufficient remedy provided
under Karnataka Act- Jurisdiction of civil Court cannot
be impliedly ousted.
The jurisdiction of the Civil Court is not expressly
barred under the provisions of Karnataka Act. It is only
by implication, the jurisdiction of the civil Court is
sought to be ousted. Implication is an indirect method of
ousting the jurisdiction of the Civil Court. In such a
case, the provisions which oust the jurisdiction of the
civil Court, must provide for a mechanism to adjudicate
such dispute. The cumulative effect of the statutory
provision should provide for adequate remedy on par
with the jurisdiction of the Civil Court. In such
circumstances, it can be inferred that the jurisdiction of
the civil Court is impliedly excluded.
Reading of provisions of Section 25 shows that, the
Registrar can hold an enquiry and u/s 25 sub-section (2)
clause (c) sub-clause (iii) he can communicate the result
of the enquiry to the society concerned. Section is silent
as to what happens to the report, or whether the
Registrar can take further decision on the basis of
enquiry. If a society is to be communicated with the
result of the enquiry, whether such a society is bound
by the report or whether the society in pursuance of the
said report could take action, all that is provided is only
enquiry and submitting of report. In this case, reading of
S.25 does not provide for raising any such dispute nor
provide for adjudication, hence if cannot be inferred or
understand to mean that the dispute touching the
constitution or a dispute between the members and the
members and members and the society could be
adjudicated. What is not provided in Law cannot be
inferred".
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28. In view of the principles laid down in the above
decision, now it cannot be said that the plaintiff herein has to
necessarily approach the Registrar for redressal of his
grievance involved in this case, because as stated supra the
Act does not specifically provide any effective or sufficient
remedy for redressal of all kinds of disputes between the
society and its members. In the present case as stated
above, the defendant herein is not even a Society in the
strict sense, but it is a recreational Club formed by its
members. Therefore having regard to the nature of the
dispute involved in this case it could safely be held that this
Court certainly assumes jurisdiction to decide the case on
hand.
29. Now the next material aspect which requires
consideration is as to whether the plaintiff herein could prove
that defendant Club before terminating his membership has
not acted as per the rules and regulations and the bye-laws
of the Club and as to how the act of the defendant has
resulted in serious miscarriage of justice and violation of the
principles of natural justice. As stated above, it has been the
specific grievance of P.W.1 that the defendant has not
terminated his membership as per bye- law No.5(iii) which
specifically mandates that the notice has to be issued to the
members in three different modes i.e., by RPAD, by Courier
or through SMS or e-mail. Thus, according to his grievance
this requirement is not satisfied by the defendant.
30. According to PW1, though the defendant has sent him
many messages, but the notice sent through registered post
has not been served upon him in accordance with law. The
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defendant on the other hand, has contended that though
these three modes of service of notice are provided under
the bye-laws, but the said rule has to be construed not in the
sense that all the three modes are to be mandatorily
exhausted, but the notice could be sent through any one of
such modes. It would be relevant to refer the evidence of the
parties in this regard.
31. D.W.1 in his cross-examination has clearly admitted
that as per the above said bye-laws the notice was required
to be sent through all the modes provided under the bye-
laws with a clear gap of 15 days and in case the plaintiff fails
to comply with the said notice issued under all the modes
then only his membership needs to be kept under
suspension. This material piece of his admission is found in
his cross-examination dated 01.12.2021 on page-13 in para-
2 which reads thus:-
"It is true to suggest that notice to the plaintiff
was required to be sent by RPAD, courier, SMS
or through E-mail with a clear gap of 15 days as
per the bye-laws. It is true to suggest that in
case the plaintiff fails to comply with the said
notice issued in all the above modes, then his
membership will have to be kept under
suspension for 3 months".
32. Thus the above statement of D.W.1 clearly falsifies
the contention of the defendant that the notice could be
issued by any one of the three modes provided under the
bye-laws. Even in his further cross-examination he has not
specifically stated that they have issued notice dated
09.07.2016 through SMS or E-mail to P.W.1 though he has
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pleaded ignorance in this regard. It is further relevant to refer
the material documents in this regard.
33. The defendant has produced a letter dated
11.08.2016 addressed to P.W.1 stating that the final notice
dated 09.07.2016 sent by the defendant was returned as not
claimed and therefore his membership has been terminated
by the defendant. This final notice dated 09.07.2016 is under
serious dispute by P.W.1 which is produced at Ex.D.1. Thus
according to the defendant this Ex.D.1 is the final notice
which has entitled it to terminate the membership of P.W.1
since he alleged to have not claimed this notice. It is relevant
to note that in Ex.D.18 we find the sentence as "by
registered post has been returned as not claimed,
returned to sender" has been in the hand writing whereas
the rest of the contents are typed. We even do not find the
initials put to this over writing found in Ex.D.8.
34. No doubt Ex.D.1 shows that this notice dated
09.07.2016 was returned as not claimed by P.W.1, but as
rightly pointed out by the learned counsel for plaintiff, the
defendant has not complied with the other requirements of
the bye-laws i.e., by issuing notice to P.W.1 through the
other modes as enumerated in Clause-5(iii) of the Bye- laws
as discussed supra and this fact is also not specifically
denied by D.W.1 in his cross-examination. Under such
circumstances prima facie it is proved that they have not
acted in accordance with their own bye-laws. It is further
significant to note that even after issuance of Ex.D.1 notice
there was correspondence between the plaintiff and the
defendant.
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35. In his cross-examination dated 10.02.2021 D.W.1 has
clearly pleaded ignorance to say that whether the defendant
has issued notice dated 09.07.2016 through SMS or e-mail
to the plaintiff. It is further pertinent to note that though as
per the subsequent endorsement found on Ex.D.1 it is stated
that the notice was not claimed by P.W.1, but initially there
was another endorsement dated 12.07.2017 stating that
notice could not be served as it was returned as 'door
locked' and this fact is also admitted by D.W.1 in his cross-
examination dated 01.12.2021. It is also admitted by him that
as on the date of issuance of this notice dated 09.07.2016,
the old bye-laws were in operation. If that is the admitted fact
certainly the defendant ought to have acted in accordance
with the said bye-laws by complying with the issuance of
notice under all the three modes which are mentioned in
Clause-5(iii) of the bye-laws and this material requirement
has not been satisfied by the defendant.
36. It is further significant to note that nowhere in the
entire cross-examination of P.W.1 it has been suggested to
him that he was duly intimated with regard to termination of
his membership by issuance of notice to him by all the three
modes as per the bye-laws. However the learned counsel for
defendant has urged that there was no occasion for the
defendants to issue such notice to P.W.1 through e-mail
since he had not furnished e-mail address to the defendant.
This explanation offered on behalf of the defendant cannot
be sustained for the reason that as per their own bye-laws,
the notice was required to be issued not only through RPAD
or SMS but also through courier with a clear gap of 15 days
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and it is only after compliance of this material requirement, if
the plaintiff thereafter fails to comply with the said notice his
membership was to be terminated as per heir bye-laws.
37. Therefore as rightly urged by P.W.1 the entire
approach of the defendant No.1- Club in terminating the
membership of P.W.1 is now proved to be contrary to their
own bye-laws. However it has been suggested to P.W.1 in
his cross-examination dated 27.08.2019 in para-6 that as per
Ex.D.3 notice which is said to have been put on the notice
board of the Club on 27.07.2016 shows that he was due to
pay an amount of Rs.10,579/- to the Club. It is pertinent to
note that though as per their records P.W.1 was shown to be
due to pay the said sum towards the arrears of charges
payable to the Club, but it is significant to note that even as
per the own admission of D.W.1 since 2015 till the date they
have not allowed the plaintiff inside their Club premises. This
Ex.D.3 is dated 27.07.2016. When the defendants had
already restrained P.W.1 from entering their Club premises
in the year 2015 itself then it cannot be said that P.W.1 must
have any access to the said notice board of the Club as on
27.07.2016 so as to come to know about the amount due
from him payable to the Club. Therefore even though this
document shows his liability for payment of the said sum, it
cannot be said that he was made aware of the issuance of
notice by the defendants.
38. Even otherwise it is relevant to note that P.W.1 has
been pleading his readiness to clear all dues payable to the
Club, but the conduct of the defendant No.1- Club indicates
that they have not given him any opportunity of clearing the
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entire dues. On the contrary they have ventured to terminate
his membership contrary to their own bye-laws which has
certainly resulted in miscarriage of justice as well as violation
of principles of natural justice. Therefore both these issues
will have to be answered in favour of the plaintiff in the
affirmative.
39. Issue No.3:- P.W.1 has also alleged that the
defendants by illegally terminating his membership, have
been restraining him from entering the Club premises and
from using the facilities of the Club as its member. The fact
that P.W1 has been denied the access to the Club and
using the facilities of the Club has been admitted by the
defendant No.1 although he has pleaded justification stating
that since his membership was already terminated P.W.1
has no right to use the Club facilities. In view of the findings
rendered on issue Nos.1 & 2 it is now proved that the
alleged termination of membership of P.W.1 by the
defendant No.1 Club is contrary to the conditions of bye-
laws of their own Club. As discussed supra, the defendant
No.1 Club by not following the due procedure in terminating
his membership as per bye-laws, have illegally obstructed
him not only from entering the Club premises but also from
using the Club facilities as its member.
40. It is relevant to note that as per the own admission of
D.W.1, the plaintiff has been the member of their Club since
past 30 years. He has also admitted that till 2016 there was
no difference between the plaintiff and defendant No.1 Club.
It is also not denied by D.W.1 that P.W.1 had issued request
letter to the Club as per Ex.P.1 requesting the defendant
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No.1 Club for waiving off the pending payments for non-
usage of the Club facilities. D.W.1 has also admitted that
they have not replied to the said letter nor they have
responded to many other subsequent request letters of the
plaintiff. This conduct of the defendant No.1 Club clearly
goes to show that pending consideration of the request letter
of P.W.1, the defendant No.1 has attempted to take steps for
terminating his membership without responding to his
request letters. Under such circumstances it cannot be said
that there was any deliberate or intentional omission on the
part of PW.1 in clearing the dues towards the non-usage
charges.
41. Moreover the defendant No.1 has also not denied the
fact that till this date P.W.1 has been ready to clear the
entire dues payable to the Club. Therefore all these facts
and circumstances clearly establish that the approach of the
defendant No.1 Club towards P.W.1 is arbitrary and contrary
to their own rules and regulations and the bye-laws.
Therefore they are certainly liable to permit P.W.1 from
continuing the membership with the defendant No.1 Club by
clearing the dues. Since it is now proved that the defendant
No.1 Club has acted contrary to the bye-laws of the Club,
they have no legal right to obstruct him from using the Club
facilities since it is now proved that his membership has not
been terminated as per law. Therefore this issue also will
have to be answered in favour of the plaintiff in the
affirmative.
42. Issue No.4:- In the light of the findings given on all the
preceding issues it is now proved that since the alleged
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termination of membership of P.W.1 by the defendant No.1
Club is contrary to law and the rules and bye-laws of the
defendant No.1- Club, the defendant No.1 Club is under a
legal responsibility to continue the membership of the
plaintiff to their Club. However since P.W.1 has also
admitted that he has remained in arrears of the charges of
non-usage of Club facilities, he is also liable to clear the
entire dues so as to get the continuation of his membership
with the defendant No.1 Club. Hence this issue is also
answered in his favour in the affirmative.
43. Issue No.5:- In the light of the findings given on the
preceding issues and in the facts and circumstances of the
case the parties to the suit are directed to bear their own
costs of litigation. In the result the court hereby proceeds to
pass the following:-
ORDER
The suit filed by the plaintiff against the defendants
for declaration and permanent injunction is hereby
decreedas prayed for.
It is hereby declared that the disputed two
notices dated 11.08.2016 and 23.01.2017 issued by
the defendants are null and void. Consequently the
termination of the plaintiff's membership of the
defendants Club by the defendants is illegal.
The defendants-Club are hereby restrained
by an order of permanent injunction not to obstruct
the plaintiff from using the Club facilities as its
member. The defendants are hereby directed to
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continue the membership of the plaintiff to their Club
by recovering the arrears of charges payable by him
towards the Club.
No order as to costs.
Draw decree accordingly.
8. Upon reconsideration, re-appreciation and re-evaluation of
the material on record, I do not find any illegality or infirmity in the
impugned judgment and decree nor can the same said to be
capricious or perverse or contrary to the material on record
warranting interference by this Court in the present appeal.
9. It is however relevant to state that in order to continue his
membership in the appellant No.1-Club, the respondent-plaintiff
would necessarily have to abide by and comply with all the terms
and conditions of the appellant No.1-Club including payment of all
arrears due to the appellant No.1-Club and continue to pay the
amounts due to the Club to utilize the Club facilities and pay the
sums payable to the appellant No.1-Club as and when they fall due
without any default.
10. In the result, I pass the following :
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ORDER
1. The appeal is hereby dismissed.
2. The impugned judgment and decree dated 23.02.2022 in
O.S.No.5223/2017 passed by the X Additional City Civil and
Sessions Judge, Bengaluru, is hereby confirmed.
3. It is made clear that respondent -plaintiff would be entitled to
use the appellant No.1-Club as its Member and all the
facilities subject to clearing all arrears and continue to pay
the amounts due to the appellant No.1-Club without any
default.
In view of the dismissal of the appeal, I.A.No.1/2023 stands
disposed of.
Sd/-
JUDGE
JT/-
