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1994 DIGILAW 186 (CAL)

Rabindra Nath Ghosh v. Radio Marime Institute

1994-06-07

ASHOK KUMAR CHAKRABORTY

body1994
Judgment : This application under section 115 of the Code of Civil Procedure is directed against order dated January 21, 1994, passed by the learned Assistant District Judge, 6th Court, Alipore, in Misc. Appeal No. 106 of 1993 affirming the order No. 24 dated February 15, 1993, passed by the learned Munsif, 1st Court, Alipore, in Title Suit No. 77 of 1992. 2. The facts of the case are that the petitioner filed Title Suit No. 77 of 1992 in the 1st Court of the learned Munsif at Alipore against the opposite parties praying, inter alia, for declaration of title and also for a further declaration that the Governing Body constituted by the opposite party No.2 is illegal and has no locus standi to represent the defendant/opposite party No.1 society and also for a declaration that the Memorandum of Association was invalid, ultra vires, illegal, arbitrary and not according to law, and not binding upon the petitioner and that the impugned notice dated January 23, 1992, was without jurisdiction and of no effect. The petitioner's case was that he was a founder member of the defendant No.1 society and that he was illegally expelled from the membership of the society by resolution dated 23.1.92. It was further alleged that several acts of mal-feasance and misfeasance were committed by the defendant No.2. It was also alleged that defendant No.2 mis-appropriated funds of the society. Accordingly an application for temporary injunction for restraining the defendant No.2 from interfering with the functioning of the plaintiff as founder member of the Institute and its day to day functioning in the day section of the Institute at premises No.6. Gariahat Road (South), Calcutta-3l, P. S. Jadavpur and from operating and withdrawing any money from the bank accounts of the Institute namely, S. B. A/C No. 4573 with the U. B. I. Lake Gardens Branch and S. B. A/C No. 6A/4970 with the Indian Bank, Ballygunge Branch by passing any new resolution was filed. It was alleged on behalf of the petitioner that under the Rules of the Societies Registration Act the petitioner was not liable to expulsion as the founder member of the same and that no opportunity was given to him for making his defence against his expulsion from membership of the Institute and thereby violating the provisions of natural justice. 3. It was alleged on behalf of the petitioner that under the Rules of the Societies Registration Act the petitioner was not liable to expulsion as the founder member of the same and that no opportunity was given to him for making his defence against his expulsion from membership of the Institute and thereby violating the provisions of natural justice. 3. In the written objection several grounds against maintainability of the suit was taken. The case of the defendant was that under Rule 10 of the Memorandum certain immunity to the founder member have been allowed but that does not mean that founder member is immuned from expulsion. Under Rule 11 clause 3 of the Memorandum any member can be expelled. It was further denied that the plaintiff was not given any opportunity of being heard before his expulsion and reference was made to two letters dated 11.2.91 and 9.11.92 respectively of the Institute addressed to the plaintiff where the plaintiff was informed that appropriate action would be taken against him. It was further contended that the court should not interfere with the internal administration of the Institute. 4. Learned Advocate for the petitioner submitted that the interest of the Institute was of paramount consideration. The learned Appellate Court did not consider that aspect of the matter by simply dismissing the appeal without any order as to the running of the Institute. He further submitted that the principle of natural justice was not adhered to and the petitioner was not given an opportunity of being heard. 5. Mr. Samir Chaudhury, learned Advocate for the opposite party No.2, however, contended that the principles of natural justice was not ignored, as the petitioner was given prior notice before his expulsion and was given opportunity of being heard which he did not avail. He further submitted that the petitioner instead of looking after the interest of the Institution was trying to destroy the Institution itself by seeking an order from the court that the bank account should not be operated by the newly constituted body. The intention of such a prayer, according to him, is to prevent the Institution from operating in the manner as it is expected. 6. Heard the submissions of the learned Advocates for both parties. The intention of such a prayer, according to him, is to prevent the Institution from operating in the manner as it is expected. 6. Heard the submissions of the learned Advocates for both parties. It appears that there is a concurrent finding of the courts below that two letters dated 11.10.92 and 4.1.92 were duly served upon the petitioner before the resolution for expelling the petitioner was taken. Learned Advocate for the opposite party also produced before the court the copies of the letters dated 11.10.91 and 4.1.92 from which it will appear that notices were served before the resolution for expulsion was finally taken on 23.1.92. I am, therefore, not in a position to agree with the submission of the learned Advocate for the petitioner that principles of natural justice were not followed when the resolution for expulsion of the petitioner was taken. In so far as the other point taken by Mr. Bagchi that interest of the Institute is of paramount consideration and the object of the injunction petition was not merely for the purpose of re-instatement of the petitioner as the founder member but also it is the duty of the court to see whether the Institution itself shall suffer by the activities of the newly constituted governing body. He also contended that for the purpose saving the financial position of the Institute a prayer was made in the injunction petition for restraining the defendant from handling the bank accounts. He further contended that no order was passed by the learned courts below ill respect of the financial effect which is likely to occur because of expulsion of the petitioner and accordingly, the order is liable to be set aside. I am not in a position to agree with this contention of Mr. Bagchi. It follows as a natural corollary that with the expulsion of the plaintiff/petitioner somebody will have to fill up the void created by the expulsion of the petitioner and some arrangement has got to be made in respect of the financial management. The defendant, accordingly was under an obligation to take such steps to see that the Institution does not suffer for lack of fund or even if the fund is available that should be utilised for the benefit of the Institution. The prayer for stopping the defendant to operate the bank account accordingly cannot be acceded to. The defendant, accordingly was under an obligation to take such steps to see that the Institution does not suffer for lack of fund or even if the fund is available that should be utilised for the benefit of the Institution. The prayer for stopping the defendant to operate the bank account accordingly cannot be acceded to. The matter regarding financial mis-management by the newly constituted society, as submitted by Mr. Bagchi, can be gone into during the trial of the suit. 7. Before parting with this revisional application it may be noted that the revisional court ought not to interfere in its revisional jurisdiction unless a jurisdictional error is committed in passing the impugned order. The impugned order has been passed after appreciation of the evidence by the learned appellate court and as such there is no reason to interfere with the said order in this revisional application. 8. The revisional application accordingly fails and is dismissed. There will be no order as to costs. 9. Learned Munsif is directed to dispose of the suit within a period of six months, if possible, since the Institution is involved. It is also fit and proper that till the disposal of the suit, there will be no transfer by way of surrender of the lease in respect of the premises in which the Institution is situated. As prayed for, let XEROX copies of this order be handed over to the learned Advocates for the parties on usual undertaking.