Kerala High Court

Felix Fernandez vs Ice Sellers Sannadha Sangham on 23 October, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                     &

               THE HONOURABLE MR. JUSTICE JOHNSON JOHN

   WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946

                          RFA NO. 396 OF 2019

        AGAINST THE JUDGMENT DATED 04.07.2019 IN OS NO.42 OF 2015 OF

                       SUB COURT, KARUNAGAPPALLY

                                 -----

APPELLANT/PLAINTIFF:

            FELIX FERNANDEZ,
            AGED 73 YEARS,
            S/O FERNANDEZ, RESIDING AT T.R.A 14, THEVALLY, KOLLAM
            WEST VILLAGE, KOLLAM PIN-691 009.


            BY ADVS.
            A.JANI(KOLLAM)
            SMT.NISA FASIL(KOLLAM)
            SRI.G.SIVASANKAR
            SMT.L.JYOTHY KUMARI
            SMT.N.RAJI



RESPONDENTS/DEFENDANTS:

    1       ICE SELLERS SANNADHA SANGHAM,
            A SOCIETY REGISTERED UNDER THE TRAVANCORE-COCHIN
            LITERARY SCIENTIFIC AND CHARITABLE SOCIETY ACT BEARING
            REG. NO Q 806/90, SAKTHIKULANGARA, KOLLAM REPRESENTED
            BY ITS SECRETARY.

    2       SECRETARY,
            ICE SELLER SANNADHA SANGHAM, 1806/90,SAKATHIKULANGARA,
            KOLLAM, AT PRESENT MR. SHIBU, AGED ABOUT 44 YEARS.
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RFA NO. 396 OF 2019                     -2-



     3       PRESIDENT,
             ICE SELLERS SANNADHA SANGHAM, 1806/90,SAKATHIKULANGARA,
             KOLLAM, AT PRESENT MR. R.VIJAYAN, AGED ABOUT 54 YEARS.

     4       TREASURER,
             ICE SELLER SANNADHA SANGHAM, 1806/90,SAKATHIKULANGARA,
             KOLLAM, AT PRESENT MR. GOPALAKRISHNAN.

     5       JACQUILLIN,
             AGED 47 YEARS
             W/O VALLARIAN, AUSTIN DAYLE, SAKTHIKULANGARA VILLAGE,
             KOLLAM, PIN 691581.

     6       GODSON,
             AGED 62 YEARS,
             S/O WILSON, VIPIN NIVAS, NEENDAKARA, KOLLAM-691 582.

     7       SUJITH,
             AGED 48 YEARS
             S/O BHASKARAN, AYYARATHUPUTHEN VEEDU, NEENDAKARA,
             KOLLAM.

     8       RAJAPPAN,
             AGED 65 YEARS
             S/O SUBRAMANYAN, CHEMBAKASSERIL VEEDU, SAKTHUKULANGARA,
             KOLLAM.

     9       KORNALIS,
             AGED 62 YEARS
             S/O JOHN, KOTTOORPADINJATTATHIL, THEKKUMBHAGOM, KOLLAM,
             PIN-691319.


             BY ADVS.
             SHRI.JAI GOVIND M.J.
             SRI.M.T.SURESHKUMAR
             SRI.R.RENJITH
             SRI.K.SHAJ



      THIS   REGULAR   FIRST   APPEAL   HAVING   COME   UP   FOR   HEARING    ON
23.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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                      SATHISH NINAN &
                    JOHNSON JOHN, JJ.
           = = = = = = = = = = = = = = = = = =
                  R.F.A. No.396 of 2019
           = = = = = = = = = = = = = = = = = =
         Dated this the 23rd day of October, 2024

                       J U D G M E N T

Sathish Ninan, J.

The suit for a declaration that the plaintiff is a

member of the first defendant Society, to declare

Ext.A11 Sale Deed as void, for recovery of possession,

and for other reliefs, was dismissed by the trial court.

The plaintiff is in appeal.

2. The first defendant is a Society registered

under the Travancore-Cochin Literary, Scientific and

Charitable Societies Registration Act, 1955. The Society

was formed in the year 1990. It was formed to function

as a charitable entity to eradicate unemployment of its

members and to uplift their family life and to educate

the children of the members. The plaintiff became a

member of the Society in the year 1994. In the year

1998, the plaintiff was elected as Secretary of the

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Society. During his tenure the Society acquired various

items of properties under Exts.A3, A4 and A5 sale deeds.

According to the plaintiff, during the period 2001-02,

when he was the President of the Society, the then

treasurer committed gross misappropriation.

3. In the year 2003, alleging misappropriation, a

criminal case was registered against him. The case

ultimately ended in acquittal as per Ext.A8 judgment

dated 12.05.2015. On 03.07.2015, the plaintiff issued

Ext.A9 notice to defendants 1 to 4 requiring them to

permit the plaintiff to continue as member of the

Society. Without heeding to the request, the claim was

denied as per Ext.A10 reply. A portion of the property

of the Society which was purchased under Ext.A5, was

purportedly conveyed by the Society as per Ext.A11 Sale

Deed dated 12.01.2007, in favour of the fifth defendant.

The plaintiff alleges that Ext.A11 is a fraudulent,

collusive and void document. According to the plaintiff,

the transaction is grossly under valued. It is also

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alleged that such sale was without any sanction from the

general body.

4. The defendants denied the plaint allegations. It

was contended that the suit is barred by limitation.

According to them, the plaintiffs were removed from the

membership as early as in the year 2009. It was

contended that Ext.A11 is a true, genuine and bonafide

transaction.

5. The trial court held that the suit is barred by

limitation. It was also held that Ext.A11 conveyance and

the termination of the membership of the plaintiff was,

as decided by the general body.

6. We have heard learned counsel Sri.A.Jani on

behalf of the appellant-plaintiff and Sri.K.Shaj and

Sri.M.T.Suresh Kumar on behalf of the respondents.

7. The points that arises for determination are :-

(i) Is the finding of the trial court that the suit is barred by limitation, correct?

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(ii) Is the contention of the appellant that Ext.B1 bye- laws does not provide for removal from membership of the Society, sustainable?

(iii) Does the decree and judgment of the trial court warrant any interference?

8. Even according to the plaintiff, ever since in

the year 2003 he was not permitted to participate in the

general body. According to the defendants, the plaintiff

was removed from the membership of the first defendant

Society in the year 2009. Therefore, the right to sue

accrued to the plaintiff at least by the year 2009. The

suit is filed only in the year 2015. It would be

relevant to refer to the averments at paragraph 34 of

the written statement, with regard to the procedure

followed by the first defendant for removing the

plaintiff from its membership. The same reads thus :-

"34) The plaintiff and his son were abstained from their duty from 23.11.2004. The general body of 1st defendant dtd 14.12.2008 discussed the matter in detail and resolved to remove them from the membership by due process of law after conducting enquiry. Committee dtd 26.04.2009 decided

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to conduct a domestic enquiry into the matter after issuing the charge memo to the plaintiff. The charge memo was in respect of the misappropriation of Rs.6,17,483/- and the unauthorized absence of plaintiff from 23.11.2004. A charge memo was issued to him inviting his reply within 7 days. The charge memo was sent by registered post but it was returned "unclaimed". The committee dtd 26.05.2009, discussed the matter in detail and appointed a sub committee consisting of W. God-son, M. Kuttappan and T.Vamanan to enquire in to the charges framed against the plaintiff.

The sub committee conducted domestic enquiry after issuing notice to the plaintiff and his son Joy Felix. The sub committee issued registered notice, but it was returned unserved. Therefore it was published in the Keralarajayyam daily. Even then they haven not turned up for the enquiry. The sub committee found that the plaintiff and his son were purposely evading from the enquiry and they found that the plaintiff and his son were elaborately guilty of charges leveled against there in the charge memo. After on 21.07.2009 show cause notice was issued to the plaintiff and his son calling there explanation but it was also not accepted and therefore notice was repeated on 10.08.2009 but that was also returned unserved. Therefore the general body dtd 26.07.2009 was fixed and they were given opportunity to submit their case. On 26.07.2009, general body meeting was convened and after discussion, they were terminated from the 1st defendant. The plaintiff and his son were well aware that they were terminated from the 1st defendnat's membership. The plaintiff and his son were well aware of their termination. The file regarding the domestic enquiry was missed from the office of 1st defendant and the 1st defendant honestly believes that the file was unlawfully taken away by the plaintiff. Minute books and some other documents were also missed from the office of the first defendant."

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It is to be noticed that, even in Ext.A10 reply notice

issued by the first defendant the decision of the

Managing Committee, removing the plaintiff from the

membership, was intimated.

9. The learned counsel for the appellant would

argue that the alleged resolution regarding termination

of membership has not been produced by the first

defendant. It is to be noticed that, it is the

allegation of the defendants that the plaintiff removed

the relevant records of the Society. It is to be noticed

that, even according to the plaintiff he was not

permitted to participate in the general body of the

Society ever since in the year 2003.

10. When the plaintiff seeks a declaration that the

termination of his membership is illegal or void and

that he continues to be a member, such a declaration

would be governed by Article 58 of the Limitation Act.

The period of limitation thereunder is three years from

the date on which the right to sue first accrues. In the

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present case, the right to sue having accrued in the

year 2009, the suit filed in 2015 is barred by

limitation. The trial court was right in having held so.

11. The learned counsel for the appellant urged a

contention that, Ext.B1, the amended bye-laws of the

first defendant Society does not provide for termination

of membership from the Society. Referring to clause-20

of the amended bye-law he would argue that all that is

provided for is, to remove a member of the governing

body if he acts against the interests of the Society.

However, a reading of clause-10 of the amended bye-laws

makes it clear that, termination/removal from membership

of the Society is contemplated. Clause-10 reads thus :-

"hIp-¸v : 10 : kw-L-¯nð \nópw ]n-cnªp-t]m-Ip-ó AY- hm ]n-cn-¨p-hn-Sp-ó Aw-K-¯n-\v kw-L-¯nð \n-b-am-\p-kc-Ww A-S-¨n-«p-Å AY-hm kw-Lw \n-b-am-\p-kc-Ww ssIh-iw h- ¨n-«p-Å bm-sXm-cp-Xp-Ibpw Xn-cn-¨p-In-«p-ó-Xn-\v A-h-Im-iw Cñm- ¯-XpamWv. kw-Lmw-K-¯n-sâ {I-a-t¡-Sp-IÄ sIm-ïv kw-L- ¯n-\v \-ãw kw-`-hn-¡p-ó ]-£w \ãw Cu-Sm-¡p-ó-Xn-\v {]- kvXp-X Aw-K-¯n-\v tað kw-L-¯n-\v \n-b-a-\-S-]-Sn-IÄ kzo-I- cn-¡m-hp-ó-Xp-amWv."

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The clause specifically deals with initiation of legal

proceedings against a member on termination of his

membership in cases where the Society has suffered

damages consequent on his misconduct. The clause further

provides that, on termination of membership, such person

is not entitled for any amounts from the Society.

Anyhow, having held that the challenge against the

termination from the membership of the plaintiff is

barred by limitation, the same is inconsequential.

12. With regard to the challenge against the

alienation (Ext.A11) by the Society, the plaintiff being