GADADHAR MISHRA v. BIRAJA DEVI — 1998 DIGILAW 451 (ORI)

P. K. MISRA, J. ( 1 ) PLAINTIFF No. 1 is the appellant in all the three appeals against the common order dated 2-2-1996 passed by the Civil Judge (Senior Division), Baripada, rejecting the three separate petitions for injunction. Since the three appeals are directed against the common order in one suit and common questions of fact and law arise for determination, all the appeals are being disposed of together by the present order. ( 2 ) PLAINTIFF No. 10 is a Society registered under the Societies Registration Act (Act 21 of 1860) having its registered office at Bhanjapur. Late Prasanta Kumar Mohanty was admittedly the President of the said Society till his death on 6-12-1993. It is claimed that after the death of Prasanta Kumar Mohanty, plaintiff No. 1 who was the General Secretary, in consultation with plaintiff No. 2 who was the Vice-President, convened a meeting and plaintiff No. 1 was elected as the President and plaintiff No. 3 was elected as the General Secretary. It is further claimed that during the life time of Prasanta Kumar Mohanty, huge amounts were diverted from the funds of plaintiff No. 10 to the personal accounts of Prasanta Kumar Mohanty and his relation as well as to the accounts of defendant No. 18, Vinobha Smarak Trust, which had been created by Prasanta Kumar Mohanty and his close relations. It is further claimed in the plaint that defendant No. 1, the widow of late Prasanta Kumar Mohanty, and their sons and other close relations who were posing to be members of the Governing Body had no connection with plaintiff No. 10. On these allegations, the suit was filed claiming the following reliefs :-" (A) A decree be passed declaring the plaintiff and such of Pro forma defendants as found to be genuine members of the Governing Body of the Society of the plaintiff No. 10 and defendants are strangers; (b) The defendant Nos. On these allegations, the suit was filed claiming the following reliefs :-" (A) A decree be passed declaring the plaintiff and such of Pro forma defendants as found to be genuine members of the Governing Body of the Society of the plaintiff No. 10 and defendants are strangers; (b) The defendant Nos. 1 to 15 be restrained by order of permanent injunction from interfering in the management of the society and not to withdraw any amount and deal with in any manner with the money in the Bank accounts as of Schedule A and not to deal with or spend any incoming money under banner of or in the name of plaintiff No. 10 in any manner and to pass a mandatory injunction directing the defendant No. 1 to return the records and assets of the society to the plaintiffs; (c) A declaration be given that the sum of Rs. 25,00,000/- in the FDR Account no. 520604 dated 2-12-1992 with the defendant No. 16, in the name of the defendant No. 18, money belonging to the plaintiff No. 12 and the plaintiff are entitled to it and an injunction restraining the defendants Nos. 1, 4 and 10 from withdrawing the same or dealing with the same in any manner; (d) A declaration be given that the sum of Rs. 3,33,210/- now in the Savings Bank Account No. C and I-1487 of the defendant No. 18 with defendant No. 16 is the money of the plaintiff No. 10 and the defendant Nos. 1, 4 and 19 be restrained by an injunction to withdraw any amount from the said Account; (e) A declaration be given that the sum of Rs. 2,38,150/- now in the FDR No. 635004 dated 6-3-1993 are in the name of Late Prasanta Mohanty with defendant No. 16 is the money belonging to the plaintiff No. 10 and the defendant Nos. 1 to 4 be restrained by an injunction from withdrawing the same; (f) Cost of the suit be decreed against the defendants; (g) Any other relief or reliefs to which the plaintiffs are entitled in law and equity be passed. " ( 3 ) ALONG with the suit, the plaintiffs filed three separate petitions under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the "c. P. C. ") for injunction. Misc. " ( 3 ) ALONG with the suit, the plaintiffs filed three separate petitions under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the "c. P. C. ") for injunction. Misc. Case No. 69 of 1994 was filed praying for interim injunction restraining, the opposite parties in the said Misc. Case (defendants 1, 4 and 16) from withdrawing any amount from the Fixed Deposit Account No. 635004 from the Bank. Misc. Case No. 70 of 1994 was filed for restraining the opposite parties in the said Misc. Case (defendants 1, 4, 19 and 18) from operating Account No. C andi 1487 and FDR No. 520604. In Misc. Case No. 71 of 1994 interim injunction was sought for against the opposite parties (original defendants 1 to 17) from receiving or drawing any amount in cash or cheque issued in the name of the Society-plaintiff No. 10 as well as from operating the Account SIB 55, C and I 2, C and I 8, C and I 9 and S. B. No. 3001, 3627, CI 1/34 and Account No. 474 of the Society and from tampering or manipulating the registers or books of account or any other documents of the Society. Though ad interim orders of injunction were passed, all the three petitions under Order 39, Rules 1 and 2, C. P. C. were rejected. Misc. Appeal No. 89 of 1996 is directed against the order in Misc. Case No. 69 of 1994; Misc. Appeal No. 90 of 1996 is directed against the order in Misc. Case No. 70 of 1998 and Misc. Appeal No. 91 of 1996 is directed against the order in Misc. Case No. 71 of 1994. ( 4 ) THE contesting defendants-respondents have entered appearance through their counsels and counter affidavit have been filed along with many documents. In Misc. Appeal Nos. 89/96 and 90/96, a petition has been filed on behalf of the contesting-respondents for admitting certain documents and additional evidence. An application has been filed on behalf of the appellant to call for the bank accounts of plaintiff No. 10 and the contesting defendants from the various banks. Orders had been passed directing the Bank to produce the accounts in respect of plaintiff No. 10 and defendant No. 18. However, the other accounts have not been called for. The main thrust of the plaintiffs in the Misc. Orders had been passed directing the Bank to produce the accounts in respect of plaintiff No. 10 and defendant No. 18. However, the other accounts have not been called for. The main thrust of the plaintiffs in the Misc. Cases for injunction was relating to operation of accounts in various banks. It had been alleged that the funds of plaintiff No. 10 had been illegally and surreptitiously diverted even during the life time of Prasanta Kumar Mohanty and many accounts had been created in his name as well as the names of his relations. It was also alleged that huge amounts had been diverted from the account of plaintiff No. 10 to the account of defendant No. 18, which was being controlled by Prasanta Kumar Mohanty and his close relations, such as his wife, son and brother-in-law. The trial Court rejected all the applications for injunction on the ground that the plaintiffs had failed to produce prima facie materials in support of their allegations relating to the alleged diversion of funds. It was further found that since the contesting defendants, particularly , defendant No. 1 were in charge of plaintiff No. 10 and were operating the different accounts, the balance of convenience was in their favour and no irreparable loss would be caused to the plaintiffs. After filing of the appeals, ex parte order of injunction has been passed in the three appeals on 5-2-1996 restraining the contesting defendants from operating the bank accounts in question. Those orders are still operative. However, on the basis of application filed by respondent No. 1 she was permitted to withdraw a sum of Rs. 50,000/- on furnishing property security, by order dated 16-6-1997 in Misc. Appeal No. 91/96. ( 5 ) THE learned counsel for the appellant has submitted that the contesting defendants were not members of the Governing Body and their claim that they were elected as members of the Governing Body on 22-12-1993 cannot be accepted. It has been contended that defendant No. 1 was continuing in service at the time of death of her husband and she could not have been elected as President. It has been submitted that the various documents filed by the defendants and the new documents filed in this Court are not genuine documents. It has been contended that defendant No. 1 was continuing in service at the time of death of her husband and she could not have been elected as President. It has been submitted that the various documents filed by the defendants and the new documents filed in this Court are not genuine documents. It has been submitted that the plaintiffs have been able to establish a prima facie case and since the question of diversion of funds of a Trust is in issue, irreparable loss would be caused to the plaintiffs in case the defendants are allowed to operate the accounts on the basis of manipulated documents. It is further submitted that if the accounts are operated and the amounts are permitted to be withdrawn by the defendants, the entire funds of plaintiff No. 10 would be dissipated and misappropriated and as such, the balance of convenience is in favour of the plaintiffs. The learned counsels appearing for the contesting respondents have countered such submission on behalf of the appellant. It has been submitted that the documents prima facie indicate that defendant No. 1 and other contesting defendants are in charge of plaintiff No. 10 and the materials on record do not indicate, prima facie, diversion or misappropriation of any funds. Many documents have been produced in this Court and it has been prayed that such documents may be considered under Order 41, Rule 27, C. P. C. ( 6 ) LAW is well settled that before granting injunction, the Court must be satisfied that there is a prima facie case in favour of the person seeking injunction and such person would suffer irreparable loss in case injunction is refused and the balance of convenience is in favour of such person. For establishing a prima facie case, it is not necessary for the party to prove his case to the hilt and if a fair question is raised for determination, it should be taken that a prima facie case is established. Counsels for both the parties have advanced lengthy and learned arguments in support of their respective contentions, particularly with reference to the various documents which were filed before the trial Court and the new documents which have been filed on behalf of the respondents in this Court. Counsels for both the parties have advanced lengthy and learned arguments in support of their respective contentions, particularly with reference to the various documents which were filed before the trial Court and the new documents which have been filed on behalf of the respondents in this Court. The learned counsel for the appellant has vehemently contended that the trial Court has committed illegality in not calling for the documents from the Banks which would have prima facie indicated that funds of the plaintiff No. 10 had been diverted. An in depth analysis of the documents filed by the parties and various materials on record is likely to prejudice the parties. Keeping in view the circumstances required to be considered for establishing a prima facie case, it need only be observed at this stage that it cannot be said that no prima facie case has been established by the plaintiffs. The main thrust of the plaintiffs relates to the question of operating the accounts. It is submitted by the counsel for the respondents that even if the accounts are operated, the amount involved can be known and in the strict sense, it cannot be said that any irreparable loss would be caused as the plaintiffs can recover the amount if ultimately it is found that the defendants are not entitled to operate the accounts. Theoretically, such contention is without any blemish. However, in the present case, the question of diversion of funds from a charitable organisation is an issue. Even though theoretically, it is possible to say that the amount, if any, has been withdrawn by the defendants can be realised, in reality it would be difficult for the plaintiffs to realise such amount in the event of their success. Prima facie, therefore, it cannot be said that no irreparable loss would be caused to the plaintiffs, nor it can be said that the balance of convenience is not in their favour. On the other hand, it has to be seen that, in fact, defendant No. 1 and other contesting defendants have remained in charge since last few years and the charitable work undertaken for plaintiff No. 10 may come to a stand still if the defendants are restrained from continuing in management and from operating the accounts. Defendant No. 18 itself appears to be another independent organisation. Defendant No. 18 itself appears to be another independent organisation. Since many documents have been filed in this Court and there is some justification in the criticism of the counsel for the appellant that all the bank accounts should have been called for by the trial Court, the question of directing the trial Court to have a fresh look in the matter looms large. ( 7 ) AS already indicated, interim order of injunction is operating since 1994 and after the order of injunction was vacated by dismissal of all the Misc. Cases, within a few days thereafter, order of injunction has been passed by the High Court. The interest of all the parties is required to be protected. Remanding the matter to the trial Court for fresh consideration may ultimately result in further delay of the trial and instead of devoting time for disposing of such miscellaneous matters, the trial Court can better utilise the same time for deciding the suit itself. Detailed analysis of the materials by this Court is likely to prejudice the parties. Having regard to all these aspects. I think interest of justice would be served by disposing of the appeals with the following directions :- (I) The suit itself should be disposed of expeditiously, preferably before the commencement of Summer Vacation in May, 1999; (II) The fixed deposit of Rs. 25,00,000/- in the name of defendant No. 18 should not be withdrawn and if the term of the fixed deposit has expired, the same shall be renewed by the Bank till the end of June, 1999, and the question of withdrawal of money shall be considered thereafter depending upon the result of the suit; (III) Out of the fixed deposit of Rupees 2,38,250/- in the name of late Prasana Kumar Mohanty, a sum of Rs. 50,000/- has already been directed to be withdrawn by furnishing property security. The balance amount lying in deposit in the said account can only be withdrawn on furnishing further property security after obtaining necessary permission from the trial Court as and when required. The property security shall be furnished in the manner envisaged by order of this Court dated 26-6-1997 passed in M. A. No. 91/96. (IV) The defendants would be free to deal with other amounts received or to be received by them from various sources after filing of the suit. The property security shall be furnished in the manner envisaged by order of this Court dated 26-6-1997 passed in M. A. No. 91/96. (IV) The defendants would be free to deal with other amounts received or to be received by them from various sources after filing of the suit. However, proper accounts are to be maintained and furnished before the trial Court by 10th of each succeeding month, and (V) The land in the name of defendant No. 1 and the house standing thereon where the office of plaintiff No. 10 was allegedly established shall not be alienated by any party during the pendency of the suit. It is made clear that any observations made in the impugned order or in this judgment are only prima facie observations and the trial Court should dispose of the suit on the basis of evidence on record without being prejudiced by such observations in any manner. There will be no order as to costs. Appeal allowed. .