Gandhinagar Education Society v. M.A.M.R.Muthiah

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 19TH DAY OF DAY OF DECEMBER 2017 THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN O.A.Nos.1230 and 1231 of 2017 and A.Nos.2491 and 4018 of 2017 in C.S.No.300 of 2017 C.S.No.300 of 2017:

M.A.M.R.Muthiah Treasurer and Executive Committee Member The Gandhinagar Education Society "Chettinad House"

Rajah Annamalaipuram, Chennai 600 028 ..Plaintiff Vs

1. The Gandhinagar Education Society Rep.by its Secretary, AR, Ramaswamy (Kumararajah Muthiah Hr.Sec.School Campus) No.4, Crescent Avenue Road, Gandhi Nagar, Adyar, Chennai 600 020.

2. AR.Ramaswamy Secretary, The Gandhinagar Education Society (Kumararajah Muthiah Hr.Sec.School Campus) No.4, Crescent Avenue Road, Gandhi Nagar, Adyar, Chennai 600 020.

..Defendants O.A.No.1230 and 1231 of 2017:

1.Gandhinagar Education Society Rep.by its Secretary AR Ramaswamy, (Kumararajah Muthiah Hr.Sec.School Campus) No.4, Crescent Avenue Road, Gandhi Nagar, Adyar, Chennai- 600 020.

2.AR.Ramaswamy, Secretary, Gandhinagar Education Society, (Kumararajah Muthiah Hr.Sec.School Campus) No.4, Crescent Avenue Road, Gandhi Nagar, Adyar, Chennai- 600 020.

..Applicants/Defendants (in O.A.Nos.1230&1231 of 2017)

vs M.A.M.R.Muthiah, Treasurer and Executive Committee Member, The Gandhinagar Education Society, "Chettinad House"

Rajah Annamalaipuram, Chennai- 600 028.

..Respondent/Plaintiff (in O.A.Nos.1230&1231 of 2017) O.A.No.1230 of 2017:

Original Application praying that this Hon'ble court be pleased to grant interim injunction restraining the Respondent, his men, servants or agents or anyone claiming under him from in any manner covening the Executive Committee Meeting of the Gandhi Nagar Education Society on 20.12.2017 or on any other date pursuant to the notie dated 09.12.2017, pending disposal of the suit.

O.A.No.1231 of 2017:

Original Application praying that this Hon'ble court be pleased to grant interim injunction restraining the implementation of or acting upon of the result of the election for the Executive Committee and the office bearers of the Gandhi Nagar Education Society held on 1.12.2017 pending disposal of the suit.

A.No.2491 of 2017:

1.Dr.Meena Muthiah, Wife of late M.A.M.Muthiah Chettiar, Chettinad House, Rajah Annamalaipuram, Chennai- 600 028

2.Mr.V.Vaidhyanathan, Son of late Vaithisubramaniya Iyer, No.26/73, Venkatakrishna Road, Rajah Annamalaipuram, Chennai- 600 028 3.Mr.V.K.Ramarao, Son of V.Suryanarayana Rao, M-36/3, 7th Cross Street, Besant Nagar, Chennai- 600 090 4.Mr.G.Annamalai, Son of A.Ganapathy, New No.4, Somasundaram Avenue, Sakthi Nagar, Porur, Chennai- 600 116 5.Mr.M.Seetharaman Son of S.Muthuswamy Old No.4, New No.7, Appavoo Gramani, second Street, Rajah Annamalaipuram, Chennai 6.D.V.Venkatraman, Son of D.V.Venkateswaran Old No.31, New No.4, Third Cross Street, Ramakrishnan Nagar, Chennai -28.

7.S.Sasipraba Daughter of Sethuraman, No.27, Teachers Colony, Adayar, Chennai- 20.

8.L.Arumugam, Son of Loganathan, 40, I cross St., R.K.Nagar, Thiruvanmiyur, Chennai -41 9.Mr.V.S.Sukumar, "Soundaram"

78, 4th Main Road, Gandhi Nagar, Adayar, Chennai - 20 10.Mr.V.S.Ravikumar, V.S.Flat-1, 2nd Floor, 95, 4th Main Road,

Gandhi Nagar, Adayar, Chennai- 20 11.Mr.V.Jayaraman, Son of Vaithiyasubramaniaiyer, No.l31, Chamiers Road, R.A.Puram, Chennai- 600 028 12.Dr.R.M.Arumugam, Son of A.R.Ramasamy, Door No.6, Gandhi Nagar 3rd Main Road, Gandhi Nagar, Adayar, Chennai - 20 13.G.K.Balasubramanian, Son of G.R.Krishnamurthy, A-1, Shree Durga Apartment, No.185, R.K.Road, Mandaiveli, chennai -28 ..Applicants/Proposed defendants 3-15 vs 1.M.A.M.R.Muthiah, Treasurer and Executive Committee Member, The GandhiNagar Education Society, "Chettinad House"

Rajah Annamalaipuram, Chennai-28 ..Respondent/Plaintiff 2.The Gandhinagar Educational Society, Repd by its Secretary AR.Ramaswamy, (Kumararajah Muthiah Hr.Sec.School Campus) No.4, Crescent Avenue Road, Gandhi Nagar, Adayar, Chennai -20 3.AR.Ramasamy, Secretary, (Kumararajah Muthiah Hr.Sec.School Campus) No.4, Crescent Avenue Road, Gandhi Nagar, Adayar, Chennai -20 ..Respondents/Defendants 1 & 2 Application praying that this Hon'ble court be pleased to implead the applicants herein as party defendants 3-15 in the suit.

A.No.4018 of 2017:

L.Muthukrishnan S/o.PL.M.Lakshmanan 1C, Sea Shells Apartments, No.31, Beach Road, Kalashetra Colony, Beasant Nagar, Chennai- 600 090 ..Applicant/3rd Party

versus 1.M.A.M.R.Muthiah, Treasurer and Executive Committee Member, The Gandhinagar Education Society, "Chettinad House", Rajah Annamalaipuram, Chennai- 600 028 ..1st Respondent/Plaintiff 2.The Gandhinagar Education Society Represented by its Secretary AR.Ramaswamy, (Kumararajah Muthiah Hr.Sec.School Campus), No.4, Crescent Avenue Road, Gandhi Nagar, Adyar, Chennai- 600 020 ..1st Respondent/Plaintiff 3.AR.Ramaswamy Secretary, (Kumararajah Muthiah Hr.Sec.School Campus), No.4, Crescent Avenue Road, Gandhi Nagar, Adyar, Chennai- 600 020 ..Respondents 2 & 3/Defendnats 1 & 2 Application praying that this Hon'ble Court be pleased to implead the applicant herein as the party defendant including all the other members of the 1st respondent society viz., 1)Smt.Geetha Muthiah, 2)Mr.M.A.M.M.Annamalai, 3)Smt.V.Valliammai, 4)Mr.V.Chandramoleeswaran, 5) Mr.A.Subramanian, 6)Mr.V.Palaniappan, 7)Mr.T.Thenappan, 8) Mr.RM.Palaniappan, 9)Mr.G.Ayyappan, 10)Mr.M.Nagarajan, 11) Mr.P.K.Ramananand, 12)Mr.B.Vijaynallendran as party defendants in the above suit.

These applications coming on this day before this court for hearing the court made the following order: CS.No.300 of 2017 had been filed by M.A.M.R.Muthiah, Treasurer and Executive Committee Member of the Gandhi Nagar Education Society, against the Gandhi Nagar Education Society, represented by its Secretary, AR.Ramaswamy and against AR.Ramaswamy, seeking for declaration that the notice dated 5.4.2017, convening a Executive Committee

Meeting and the Annual General Body meeting of the 1st Defendant Society to be held on 28.4.2017 is null and void and violative of the Memorandum of the 1st Defendant Society and the Tamil Nadu Societies Registration Act and for permanent injunction, restraining the Defendants from in any manner, convening any Executive Committee meeting or Annual General Body Meeting, relating to passing of accounts of statements of the Society and School for the financial year 2015-2016 and subsequent years, till the annual accounts and statements of income and expenditure, including supporting documents are dealt with, verified by the Treasurers and audited by an independent Auditor and for permanent injunction, restraining the convening of any Executive Committee Meeting or General Body Meeting till an independent Auditor verifies and audits the annual accounts and for costs.

2. Pending the suit, several applications came to be filed by the Plaintiff. Listing them itself is an effort. To the extent possible, a perusal of the records reveal that the Plaintiff had filed OA.No.404 of 2017, OA.No.405 of 2017, OA.No.406 of 2017, OA.No.407 of 2017, OA.No.531 of 2017, A.No.3590 of 2017, A.No.3588 of 2017, A.No.3589 of 2017, A.No.2896 of 2017, A.No.2897 of 2017, A.No.4019 of 2017, A.No.4020 of 2017, A.No.4021 of 2017 and A.No.2387 of 2017.

3. All these applications in general pertain to the claim of the Plaintiff that as a Treasurer, he did not

have an opportunity to personally verify and vouch the individual expenditure vouchers and without the same, the accounts had been finalised for the Financial Year 20152016 and consequently, seeking permission to verify the accounts to inspect and counter sign the vouchers and for appointment of an independent auditor and related reliefs.

4. This court had initially granted him time to carry out inspection, extended time further and also gave one further chance. But, however, according to the Plaintiff, he was not actually given the vouchers for verification, but a statement of income and expenditure was given and he felt that as a Treasurer, that was inappropriate for him to examine. In the mean while, there were also proceedings by the Registrar of Societies and there was an urgent need to conduct elections. Since the demand for appointment of an auditor before finalising the statement of accounts and further demand not to convene the meeting without finalising the account only helped in frustrating the activities of the Society.

5. It is pertinent to point out that there are a number of Educational Institutions, which are being run by the Society and it was an imperative necessity that functioning of the Institution should not be affected by the internecine quarrels among the committee members or those who proclaim themselves to be in management and proclaimed that they are in management for a good cause.

6. Arguments in the applications were also being

protracted. In the mean while, while the applications were pending, A.No.2491 of 2017 came to be filed by 13 Applicants and they sought to implead themselves as the proposed Defendants 3-15 in the suit. Similarly, A.No.4018 of 2017 also came to be filed by one Applicant, L.Muthukrishnan, seeking to implead himself and 12 other members of the 1st Defendant Society, as party Defendants to the suit.

7. At this juncture, it is pertinent to point out that the 1st Defendant Society, actually has only 25 members and they appear to be vertically divided among themselves. Quite broadly and as has emanated during the arguments, the Plaintiff has drawn to his support the Applicant in A.No.4018 of 2017 and also the members mentioned in the said application, who were sought to be impleaded as Defendants. Similarly, the 2nd Defendant, has the support of the Applicants in A.No.2491 of 2017.

8. This court has tried to bring about a consensus among the parties. The Applicants in A.No.2491 of 2017 and in A.No.4018 of 2017 did not have separate cause for grievance. If they had, they could have very well instituted separate proceedings to enforce their rights. On the other hand, their only intention was to ride on the back of either the Plaintiff or the 2nd Defendant and frustrate any effective orders being passed. This attitude became evident since at no point of time there was any constructive arguments advanced, but on the

other hand, it was much focussed in preventing any order being passed. They did not participate during the hearing of the various applications mentioned above. They did not file applications to implead themselves in the pending applications. But, they were silent spectators and used the applications filed by them as a leverage to complain that though the impleading applications had been filed, they were not being properly heard. This was without enlightening the court as to how they would assist the court in the on going litigation.

9. As a matter of fact, had the suit been instituted after going through the preliminary steps of Order 1 Rule 8 of CPC, then the doors could very well have been opened for any third party to participate in the proceedings. But, unfortunately, the Plaintiff did not choose to do so. He did not chose to do so even after institution of the suit. It is not known on what basis the impleading Applicants had knowledge about the pending proceedings. It is also not known as to the exact reason why they did not participate in the various applications, which were argued continuously before this court right from the time the suit was instituted.

10. The averments in the affidavit filed in support of both the applications proclaim that the Applicants are very much interested in the functioning of the Society. But, however, their intentions run contrary adverse to such proclaims. I hold, even before going into

the merits of the suit and even before discussing further issues, which have been vehemently argued in OA.No.1230 and OA.No.1231 of 2017, that the Applicants in A.No.2491 of 2017 and A.No.4018 of 2017, have no bona fide intentions, but filed the applications only with the sole objective of frustrating the judicial proceedings. I hold that the affidavits filed are only hollow pleadings and no purpose would be served by entertaining them.

11. It is also not revealed by them that in what manner they would be of assistance to the Court in deciding the issues brought about by the Plaintiff and contested by the 2nd Defendant. They may be the members of the Society. They may also be holding posts of President, Secretary, Treasurer, but that does not entitle them to masquerade themselves as being honestly interested in the judicial proceedings. Judicial proceedings had been initiated and if the Applicants felt that they must also participate in the same and to be heard, they should have filed applications to intervene in the applications in which orders were passed time to time. However, without any effective contribution to bring about any settlement in the 1st Defendant Society, it was clear that the two applications were filed only for keeping alive the litigation and vertically divided.

This is very unfortunate since the Society members are involved in administering the Educational Institutions and the object of any Educational Institution is to foster unity and

harmony and such unity and harmony can be fostered only when people in the administration, practice unity and harmony even though there may be differences among themselves. Consequently, at the very threshold, I am not prepared to countenance the impleading applications and holding them to lack bona fide, A.Nos.2491 of 2017 and A.No.4018 of 2018 are to be dismissed.

12. OA.Nos.1230 and 1231 of 2017 are a direct fallout of an earlier order of this court dated 24.11.2017. As stated above, on 24.11.2017, various applications, which had been mentioned above at the beginning of this order, were all pending. However, this Court thought it fit to pass an order in the main suit itself on 24.11.2017. It was pointed out in the order that the Plaintiff had claimed that he should examine the records and that only thereafter, the meeting should be convened to finalise the accounts.

13. This Court had passed the following order on 24.11.2017:- "6.

All the applications filed in the suit including application filed to implead other members of the Society as party/defendants are all kept open for further arguments if deemed necessary, which situation the Court hopes would not arise in view of the following Order:- (a) By consensus, the said notices dated 08.11.2017 calling for the Executive Committee Meeting and Annual General Body Meeting on 01.12.2017 are validated by this Court and the Executive Committee Meeting and the Annual General Body Meeting of the Gandhinagar Education Society shall be held as scheduled on 01.12.2017 at the respective timings at the same

venue. Issues have been raised with respect to the agenda which had been placed for consideration by the members. All the agenda which have already been placed are retained. '

14. Thereafter, with respect to the accounts, this court had held that the accounts can be passed for the present and they may be revisited again within a period of six months from 1.12.2017. This Court further had examined another issue, which was also raised during the arguments, with respect to playground of the Society at Gandhi Nagar, Chennai. The members were encouraged to have a discussion about the same, but this Court had held that a final decision may be taken, but it should not be acted upon. Thereafter, this Court further had held as follows:- "8. The Members may conduct themselves during the meeting in a manner befitting the dignity of the Society and it is also hoped that the Members would also uphold the dignity of the post which the Hon'ble Judge held."

15. It was further held as follows:- "9. ... The Chairman and the Judge Observer shall jointly declare the results of the elections on the same day. "

Accordingly, a report had also been filed and the Judge Commissioner had also forwarded in sealed covers his report with respect to the Annual General Body Meeting and also with respect to the Executive Committee Meeting.

16. The Judge Commissioner had filed a detailed report along with the ballot papers and supporting documents and had finally declared that Dr.Meena Muthiah had been unanimously elected as President,

Mr.M.A.M.M.Annamalai had been elected as Vice President and Mr.M.A.M.R.Muthiah had been elected after elections as Secretary and Mr.L.Muthukrishnan had been elected after elections as Joint Secretary and Mr.V.Palaniappan had been elected after election as Treasurer.

17. The process adopted by the Judge Commissioner has been attacked by the 2nd Defendant in OA.Nos.1230 of 2017 and 1231 of 2017.

18. The 2nd Defendant for himself and also as Secretary of the 1st Defendant Society had filed the said two applications, seeking an order of interim injunction, restraining the Respondent, namely, the Plaintiff, from convening the Executive Committee Meeting of the Gandhi Nagar Education Society on 20.12.2017 or on any other date pursuant to the notice dated 9.12.2017 and for interim injunction, restraining the implementation or acting upon the result of the election for the Executive Committee and Office Bearers of the Gandhi Nagar Educational Society, held on 1.12.2017, pending disposal of the suit.

19. It has been stated in the affidavits filed in support of the said two original applications that the Executive Committee for the donor member category and life member category had been declared as elected merely on the ground that the number of candidates was less than the number of vacancies. It was stated that the candidature of each candidate was not put to vote. It was therefore stated that the elected members from the donor member

category and life member category have been improperly elected as the general body did not have an opportunity to actually elect them. It was also further stated that the contested posts of Secretary, Joint Secretary and Treasurer have been elected by the Executive Members, who formed the Electorate and not by the General Body.

20. According to the Applicants, the total strength of the General Body was 28, out of which, two did not attend and one life member was not physically present and he was also absent and consequently, the total attendance was 25. Out of 25, there were 8 donor members. Out of life members, 9 members attended and out of ordinary members, 8 members attended. In the Executive Committee, there were 9 vacancies for donor members. Since 8 members were available, they were chosen as elected by the Judge Commissioner. Similarly, there were 7 life members and since there were 7 vacancies, all of them have been chosen as elected by the Judge Commissioner. Out of the Executive Committee members, there was an election and 5 were declared elected. Consequently, the Judge Commissioner declared as elected 8 donor members, 7 life members, without putting the names to vote and after contest also declared as elected 5 ordinary members.

21. In this connection, the only Rule, which is to be examined, is Rule IV(a) of the bye laws, which is as follows:- "IV.a. The Management of the Society shall vest

in an Executive Committee of 21 members, 5 elected from among the ordinary members, 7 from among the life members and 9 from among the donor members, at a meeting of the General Body held every 3 years for the posts of One President, One Vice President, One Secretary, One Joint Secretary, One Treasurer and 16 Committee Members."

22.

The above Rule has been divergently interpreted by Mr.AR.L.Sundaresan, the learned senior counsel for the Applicant in both the applications and by Mr.AL.Somayaji, learned senior counsel and Mr.T.Mohan, the learned counsel for the Respondent.

23. According to Mr.AR.L.Sundaresan, the learned senior counsel for the Applicant, even though there were only 8 donor members to be elected and there were 8 donor member vacancies available, still the General Body should have had an opportunity to reject any of the donor members. Similarly, even though 7 life members had expressed willingness to be in Executive Committee and out of 11 life members, two expressed unwillingness and one was not physically present, leaving behind only 7 as the only option, the General Body should have been given an opportunity to vote for the said 7 life members.

24. The learned senior counsel for the Applicant has relied on the above Rule IV(a) and stated that the Rule IV(a) stipulated that the Executive Committee shall consist of 21 members and out of 21 members, there shall be 7 from among the life members and 9 from among the donor members. According to him, this choice of 7 and 9 from among the

life members and donor members should have been exercised by the General Body as a whole. Merely because there were only 7 members totally available and 8 members totally available, they cannot be declared as elected without the General Body having a say in the same.

25. Mr.AL.Somayaji, the learned senior counsel, on the other hand, termed this interpretation as unviable and in this particular instance, bye laws is impracticable. According to the learned senior counsel in the present case, there were 8 donor members alone available. There were 9 vacancies, of which 8 expressed willingness to participate as Executive Committee Members. Elections from and out of donor members would be a wasteful exercise. Even though one of the members votes, he stands to be elected. There cannot be an election when there are no contestants. There were 8 donor members and all of them are eligible to be selected and there were 8 vacancies and consequently, the Judge Commissioner had very correctly stated that all members are elected. There was no contest or no other candidate challenging those 8 members. Putting them to vote would have no consequence at all. A similar argument was argued with respect to life members.

26. To the extent that in the present case, election would be meaningless, since the General Body can never reject a candidate because there is absolutely no contest among the life members, I hold that the decision

taken by the Judge Commissioner is to be upheld and accordingly, it is upheld.

27. There is yet another point, which was urged by both Mr.AL.Somayaji and Mr.T.Mohan, which stares in the face of the Applicant. The Applicant is the 2nd Defendant in the suit, Mr.AR.Ramaswamy. He crossed the stage of being selected to contest for the post of Secretary because he was one among the beneficiaries of being selected as a donor member without election. He did not question this process that he himself was not selected by the General Body. But, when there was a contest among the Executive Committee members for the post of Secretary and when he had lost, he had filed the present applications.

The applications lack bona fide.

28. It is also seen that even in the previous meeting, it is the Executive Committee, which selected the President and other Office Bearers. Mr.AR.L.Sundaresan widened the arguments, saying that within the President, Vice President, Secretary and Treasurer, the Secretary must be selected only by the General Body. Once again, he relied on Rule IV(a). Interpretation of Rule IV(a) is beyond the scope of ambit of this Court at this present juncture. The suit is not based on that grounds.

29. There had been a consensus that a Judge Commissioner was to be appointed and election shall be conducted. Elections had been conducted and results have been declared. If there is material fault in the procedure

adopted leading to a candidate, who has been selected, to be other wise declared as non elected, then the procedure can be looked into by this court. But, the Applicant herein has not questioned his own case in crossing the first stage of being elected without opposition as a donor member to the Executive Committee. Thereafter, he lost the elections for the post of Secretary and has come to court. This exposes himself. This cannot be permitted.

30. The contention raised that once again the General Body must have been given an opportunity to select the President, Vice President, Secretary, General Secretary and Treasurer is too far fetched. Among the Executive Committee members, they nominate or elect one among themselves as President, as Vice President, as Secretary, as Joint Secretary and as Treasurer. This is to regulate the meeting of the Executive Committee. The General Body has no say in the internal functioning of the Executive Committee. Therefore, I hold that the Applicant does not have any locus to file the present applications. Had he been aggrieved, he should have initiated separate proceedings. He cannot appear to utilise the judicial proceedings to obtain orders riding on the back of the Plaintiff's proceedings. This cannot be permitted.

31. Very fortunately, neither party has imputed mala fide on the part of the Judge Commissioner. The Judge Commissioner had exercised his discretion and had declared the elections. Interpretation of Rule or Bye Law is not

vested with the Court unless it is ultravires the Tamil Nadu Societies Registration Act or shocks the conscience of the Court. There is a tendency to some times have an ambiguous bye law or rule inserted so that it facilitate the interpretation to suit convenience and may be invoked in times of necessity. Rule IV(a) apparently has been worded similarly a little ambiguously. If at all that has to be changed, it is for the General Body to look into it and it is for the Registrar of Societies to approve the same. The Court cannot go into that aspect. I therefore decline to take up that aspect.

32.

The learned senior counsel for the Respondent/ Plaintiff has relied on 1994 4 SCC 225 (Morgan Stanley Mutual Fund Vs. Kartick Das) wherein the Honourable Supreme Court had held that suits filed at the penultimate quer should be viewed carefully since injunction granted would cause immense hardship and administrative inconvenience. This was with respect to meetings of Board of Directors. Mr.AL.Somayaji, learned senior counsel has stated that the present case is also similar to that.

33. The learned senior counsel has also relied on 2008 4 SCC 171 (Dhananjay Malik and others Vs. State of Uttaranchal and others) wherein the Honourable Supreme Court had held that if a candidate had participated in a selection process, he cannot thereafter turn around and question the procedure adopted. In the present case also, the Applicant had been the beneficiary of being chosen as

Executive Committee Member in his capacity as donor member, but was chosen to be a Executive Committee member without any election. He directly became the Executive Committee Member because of the exact number of vacancies and there being no contest among the donor members. Having obtained that benefit, he cannot turn around and say that the donor members and life members should have been elected by the General Body. I find no merits in this argument.

34. For all the reasons stated above, I am not in agreement with the contentions raised by the Applicants in OA.Nos.1230 and 1231 of 2017 and accordingly, OA.Nos.1230 and 1231 of 2017 are also to be dismissed.

35. In the result, A.Nos.2491 of 2017, A.No.4018 of 2018, OA.No.1230 of 2017 and OA.No.1231 of 2017 are dismissed. No costs.

Sd/.C.V.K.J.

19.12.2017 //Certified to be a true copy// Dated this the day of 2017. DL/13.02.2018 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.