Madras High Court
The Hosur Small And Tiny ... vs M/S.Sri Lavanya Springs Pvt.Ltd on 24 July, 2023
CMA No. 2908 / 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.07.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal No. 2908 of 2022
and
C.M.P. No. 22484 of 2022
1.The Hosur Small and Tiny Industries
Association (Hostia),
Represented by its Secretary S. Sridhar,
Office at CP-6, Sipcot Phase II,
Hosur – 635 109,
Krishnagiri District.
2.Mr. K. Velmurugan,
The President (Hostia).
3.Mr. S. Moorthy,
The Deputy President
(2 & 3 petitioners having office at CP-6,
Sipcot Phase II, Hosur – 635 109,
Krishnagiri District) ... Appellants
Versus
1.M/s.Sri Lavanya Springs Pvt.Ltd.,
Represented by its
Managing Director, M. Padmanaban,
Having Office at No. 509/2, Chinna Elasagiri,
Via., Titan Watches Limited, Sipcot Post,
Hosur – 635 126, Krishnagiri District.
2.Mr. R. Vadivelu, The Treasurer
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3.Mr. R. Kumar, Vice President, Region I
4.Mr. K. Mohammed Ismail, Vice President, Region II
5.Mr. R. Sudhakar, Vice President, Region III
6.Mr. T. Bairappa, Vice President, Region IV
7.Mr. K. Karunakaran, Vice President, Region V
8.Mr. S. Varadaraja Perumal, Joint Secretary, Region I
9.Mr. K. Sivakumar, Joint Secretary, Region II
10.Mr. G. Sasikumar, Joint Secretary, Region III
11.Mr. N. Ravi, Joint Secretary, Region IV
12.Mr. A. Maharajan, Joint Secretary, Region V
13.Mr. Jawahar Kumaran S.N., Executive Member
14.Mr. K. Muraleedharan, Executive Member
15.Mr. Mahesh Kayarat Rajan, Executive Member
16.Mr. Durairaj, Executive Member
17.Mr. Dillibabu.M, Executive Member
18.Mr. V. Radhakrishnan, Executive Member
19.Mr. M.R. Kumar, Executive Member
20.Mr. S. Saravanan, Executive Member
21.Mr. S. Dennis Angel, Executive Member
22.Mr. B. Elanchelian, Executive Member
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23.Mr. R. Sampath Kumar, Executive Member
24.Mr. N.K. Premarajan, Executive Member
25.Mr. M. Thimmarayasamy, Executive Member
26.Mr. P. Ganesan, Executive Member
27.Mr. D. Prakash, Executive Member
28.Mr. R. Ravichandran, Executive Member
29.Mr. H. Anil Deth, Executive Member
30.Mr. T. Manikandan, Executive Member
31.Mr. S. Rajkumar, Executive Member
32.Mr. A. Ramaiah, Executive Member
33.Mr. Rameshwaran, Executive Member
34.Mr. K. Moorthy, Executive Member
35.Mr. K. Chandramohan, Executive Member
36.Mr. L. Vijaykumar, Executive Member
37.Mr. T. Gnanavel, Executive Member
38.Mr. K. Karuppiah, Executive Member
39.Mr. M. Murugesan, Executive Member
40.Mr. N. Alagesan, Executive Member
41.Mr. B. Mahesh, Executive Member
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42.Mr. P. Muniyappan, Executive Member
43.Mr. K. Sivakumar, Executive Member
44.Mr. K.R. Dhurai, Executive Member
45.Mr. G. Senthilkumar, Executive Member
46.Mr. R. Rathanakumar, Executive Member
47.Mr. V. Mohan, Executive Member
48.Mr. C. Murugesh, Executive Member
49.Mr. E. Mageshwaran, Executive Member
50.Mr. M. Narayana, Executive Member
51.Mr. M. Madhaiyan, Executive Member
52.Mr. William James, Executive Member
53.Mr. Kiran Kumar, Executive Member
54.Mr. E. Prakash, Executive Member
55.Mr. S. Prakash, Executive Member
56.Mr. P. Shankar, Executive Member
57.Mr. K. Prabhakaran, Executive Member
58.Mr. C. Shivakumar, Executive Member
59.Mr. K. Thirupathi, Executive Member
60.Mr. Anas Rahman Khan.J, Executive Member ... Respondents
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PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1(r) of
the Civil Procedure Code seeking to allow the Civil Miscellaneous
Appeal setting aside the fair and decreetal order of the learned Additional
District Judge, Hosur dated 12.08.2022 in I.A. No. 1 of 2021 in O.S. No.
80 of 2021 and to dismiss the said interim application.
For Appellants : Mr. T.M. Hariharan.
For Respondents : Mr. S. Parthasarathy, Senior Counsel for
Mr. P. Dinesh Kumar for R1.
R2 to R60 – given up.
JUDGMENT
The appeal has been filed challenging the order passed in I.A. No.
1 of 2021 in O.S. No. 80 of 2021 on the file of the Additional District
Court, Hosur dated 12.08.2022.
2.The brief facts leading to the filing of the above appeal are as
follows;
(a)The first appellant is an Association registered in the year 1980
under the Tamil Nadu Societies Registration Act. The Association has
1200 members. The Association has its bye-laws. The bye-laws were
amended in the year 2017. The election to the post of President,
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CMA No. 2908 / 2022
Secretary and other Office Bearers of the Association was held in the
year 2018.
(b)On 26.09.2019, the Annual General Body Meeting was held to
amend the bye-laws of the Association and the bye-laws were amended.
As per the amended bye-laws, a post of Vice President was created who
would be elected by the members. He would hold office for the first two
years. Thereafter, he would automatically hold the post of President for
next two years.
(c)Some of the members of the Association including the
Managing Director of the first respondent herein filed a Suit in O.S. No.
111 of 2020 on the file of the District Munsif Court, Hosur for a prayer
to declare the resolution passed on 26.09.2019 by the Association as
illegal; that the election notification dated 05.12.2020 for the conduct of
election on 28.12.2020 on the basis of the amended bye-laws is illegal
and for other consequential reliefs.
(d)The plaintiffs in the said Suit also filed an interim application in
I.A. No. 2 of 2020 praying for an injunction restraining the respondents
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therein from conducting the election on 28.12.2020. The learned District
Munsif, Hosur dismissed the said application stating that there is no
illegality in the resolution passed by the Association; that the notice was
communicated to the members of the Association as per the bye-laws;
that the bye-laws were not registered due to a technical issue faced by the
District Registrar and not because the Registrar found any illegality in
the amendment. Admittedly, the said order has not been challenged by
the parties and election was conducted on 28.12.2020 and the appellants
were elected along with the other Office Bearers who are the respondents
2 to 60 herein.
(e) The first respondent herein thereafter filed a Suit before the
learned Additional District Court, Hosur in O.S. No. 80 of 2021 praying
for the following reliefs;
(i) for a declaration that the election held on 28.12.2020 is null and
void.
(ii) for a permanent injunction restraining the Office Bearers from
acting in the capacity as Office Bearers of the Hosur Small and Tiny
Industries Association (Hostia).
(iii) to appoint a retired District Judge to conduct election as per
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the old bye-laws of the year 2017.
(f)The first respondent also filed I.A. No. 1 of 2021 praying for an
interim injunction restraining the appellants and the respondents 2 to 60
herein from acting as Office Bearers of the Association. The appellants
resisted the said application. The learned Judge found that the first
respondent herein had not established balance of convenience in its
favour and that irreparable injury would be caused if the injunction was
not granted. However, the learned Judge found that since the amended
bye-laws were not registered by the District Registrar, hence cannot be
acted upon and passed an order restraining the appellants and the
respondents 2 to 60 from conducting the elections as per the amended
bye-law.
(g)Aggrieved, by the said order, the appellants have preferred the
above appeal.
3.(a) Mr. T.M. Hariharan, learned counsel for the appellants
submitted that the amended bye-laws was not registered due to a
technical issue faced by the District Registrar and not because there was
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CMA No. 2908 / 2022
any illegality in the amended bye-laws. The learned counsel stated that
the order of the learned District Munsif in I.A. No. 2 of 2020 in O.S. No.
111 of 2020 and the letter of the District Registrar confirms the said fact.
(b)The learned counsel further submitted that the Suit filed by the
first respondent itself is not maintainable since it was not filed in a
representative capacity. Though there are 1200 members, the first
respondent has instituted the Suit with a malafide motive and is putting
the entire association in trouble. Further, the order passed by the learned
Judge restraining the appellants from conducting the elections on the
basis of the amended bye-laws is beyond the scope of the prayer made in
the application and in any case, the order in effect amounts to allowing
the third prayer in the Suit.
(c)The learned counsel relied upon the Judgment of the
Honourable Supreme Court in Supreme Court Bar Association and
Others Vs. B.D. Kaushik reported in (2011) 13 Supreme Court Cases
774 and the Judgment of this Court in The Tamil Nadu Evangelical
Lutheran Church, represented by its present Secretary Vs. Daniel
Shanmugam and Ors. reported in 2010 (5) CTC 481.
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4. (a) Mr. S. Parthasarathy, learned Senior Counsel for the first
respondent submitted that admittedly the amended bye-laws have not
been registered by the District Registrar. As long as it is unregistered,
the election cannot be conducted on the basis of the amended bye-law
and hence, the order passed by the learned Judge moulding the relief is
valid.
(b)The learned Senior Counsel further submitted that the resolution
passed by the Association amending the bye-laws on 26.09.2019 is
illegal as the said bye-law has been passed without following the
procedure prescribed under the Act. The first respondent had made its
objections for the registration of the amended bye-law. Therefore, it
cannot be said that the amended bye-law was not registered solely
because there was a technical issue in the office of the District Registrar.
(c)The learned counsel relied upon the Judgment of this Court in
Tirunelveli Dakshina Mara Nadar Sangam rep.by its Secretary Vs.
State of Tamil Nadu and Ors. reported in 2023 (4) CTC 279; Judgment
of this Court in Ankur Grand Owners Association rep.by its Secretary
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Vs. District Registrar (Admin) and Ors reported in 2023 (3) CTC 841;
and the Judgment of this Court in The Music Academy rep. by its
Executive Trustee Vs. Inspector General of Registration and Ors.
reported in 2005 4 L.W. 67.
5.The above appeal is taken up for final hearing with the consent
of the learned counsel for the appellants and the learned counsel for the
first respondent. The respondents 2 to 60 are formal parties in the
instant appeal.
6.This Court is of the view that the issue as to whether the Suit
filed by the first respondent in O.S. No. 80 of 2021 is maintainable is a
matter which has to be adjudicated only before the trial Court while
hearing the main Suit. In the peculiar facts of the case, where admittedly
the District Registrar had stated that the bye-laws cannot be registered
because of a technical issue and also that he had received certain
objections, this Court is of the view that this issue as to whether the
amended bye-laws should be implemented for conducting next election
also has to be decided in the Suit. This Court finds that the order of the
learned District Munsif in I.A. No. 2 of 2020 in O.S. No. 111 of 2020 is
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that if the amended bye-laws is not registered because of a technical
issue, the same can be acted upon. Admittedly this has not been
challenged. The learned Additional District Judge on the other hand in
the impugned order has stated that since the amended bye-law is not
registered, the amended bye-law cannot be acted upon. In view of these
two orders which are contrary to each other, this Court is of the view that
it is desirable that this issue has to be ultimately decided in the pending
Suits.
7.This Court finds that the impugned order passed by the learned
Additional District Judge restraining the appellants from conducting the
elections on the basis of amended bye-laws is beyond the scope of the
interim application. The learned Judge had also found that the
respondent is not entitled to any relief as prayed for. The learned
Additional District Judge having found that the first respondent had not
made out prima facie case or established the balance of convenience in
its favour ought to have dismissed the application. The direction not to
conduct election on the basis of the amended bye-laws is inappropriate.
An election has been conducted on the basis of the amended bye-laws
and the present office bearers have been elected on the said basis.
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Therefore, in the absence of any adjudication as to whether the amended
bye-laws have to be implemented or not in the Suit, the direction issued
by the learned Additional District Judge not to act upon the amended
bye-laws cannot be sustained. Though it is true that the Courts can mould
the prayer and grant relief, in the instant case, this Court finds that the
said direction amounts to allowing the prayer in the Suit without trial.
Since the applicability of the new bye-laws is the issue in the Suit, such
an order cannot be passed in an interim application and therefore, the
same is liable to be set aside.
8.It is submitted by the appellants and the first respondent that the
period of the Office Bearers who were elected in 2020 came to an end in
December 2022. In view of the pending Suits and the impugned order
passed, no elections were conducted thereafter. This Court is of the view
that since the very issue as to whether the amended bye-laws have to be
adopted or the old bye-laws have to be followed for conducting the
election is pending trial, it is not desirable to conduct an election pending
adjudication of the said issue. The Association cannot function without
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office bearers till then. Hence, it is necessary that the elected Office
Bearers be permitted to hold office till the next elections are conducted
after the decision is taken in the Civil Suits.
9.It is seen that the issue in the Suit filed in O.S. No. 111 of 2020
on the file of the District Munsif Court, Hosur and the Suit filed in O.S.
No. 80 of 2021 on the file of the Additional District Court, Hosur are
substantially the same. Therefore, this Court is of the view that in the
interest of justice both the Suits have to be tried by the same learned
Judge. Hence, it is necessary to transfer the Suit in O.S. No. 111 of 2020
on the file of the District Munsif Court, Hosur to Additional District
Court, Hosur.
10.It is also reported by the learned Senior Counsel for the first
respondent that they had filed a Writ Petition before this Court praying
for a direction to the District Registrar to consider their objections and
pass orders on the registration of the bye-laws expeditiously. Though an
order has been passed by this Court, it appears that the District Registrar
is yet to pass orders. This Court sees no reason as to why the District
Registrar has not taken any action so far. Since the District Registrar is a
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63rd defendant in the Suit in O.S. No. 80 of 2021, it is open to the trial
Court to issue such directions to the 63rd defendant to take appropriate
action at the earliest.
11.It is reported by the learned counsels on either side that the
second appellant has resigned from the post of President of the first
appellant Association and the third appellant is acting as a President and
the same is recorded.
12.To sum up,
(a) For the above reasons, the order passed by the learned
Additional District Judge, Hosur in I.A. No. 1 of 2021 in O.S. No. 80 of
2021 which restrains the parties to conduct elections on the basis of the
amended bye-laws is set aside.
(b)The Suit in O.S. No. 111 of 2020, on the file of the District
Munsif Court, Hosur is transferred to the file of the learned Additional
District Judge, Hosur to be tried along with O.S. No. 80 of 2021. The
learned District Munsif, Hosur shall transmit the records in O.S. No. 111
of 2020 to the Additional District Court, Hosur forthwith. The learned
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Counsels on either side submitted that the pleadings are complete in both
the Suits. The learned Additional District Judge, Hosur on receipt of the
records from the learned District Munsif, Hosur shall conduct trial in
both the Suits simultaneously and conclude it within a period of three
months from the date of receipt of the record. It is needless to say that
the Suits shall be decided without being influenced by any of the
observations made either by this Court or by any other Court.
(c)Since the issue as to whether the new bye-laws or the old bye-
laws have to be applied for conducting elections has to be adjudicated in
the Suits, the learned Additional District Judge, Hosur is directed to
complete the trial within the time stipulated in para (b) above.
(d)The elected Office Bearers shall continue to hold Office till the
next election is conducted after the decision in the Civil Suits. The
learned Senior Counsel for the first respondent submitted that since the
Office Bearers are allowed to continue in office beyond the term, there
should be a direction to them to act in a transparent manner. This Court
is of the view that such a direction may not be necessary as the Office
Bearers are expected to always act in a transparent manner. However, if
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the Office Bearers act in a manner that warrants any action, it is open to
the first respondent to take action in accordance with law.
13.Accordingly, this Civil Miscellaneous Appeal is disposed of
with the above directions. No costs. Consequently, the connected
Miscellaneous Petition is closed.
24.07.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1.The District Munsif Court,
Hosur.
2.The Additional District Court,
Hosur.
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CMA No. 2908 / 2022
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CMA No. 2908 / 2022
SUNDER MOHAN, J
ay
C.M.A. No. 2908 of 2022
and
C.M.P. No. 22484 of 2022
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CMA No. 2908 / 2022
Dated: 24.07.2023
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