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2008 DIGILAW 328 (DEL)

DEEPAK MALHOTRA v. NATIONAL SPORTS CLUB OF INDIA

2008-03-24

S.RAVINDRA BHAT

body2008
JUDGMENT S. Ravindra Bhat, J. - The plaintiff seeks a decree of permanent injunction directing the defendant No.1 to convene a meeting of members of Central Council at Mumbai direct that elections for office bearers and Executive Committee Members by the Central Council should be held under supervision of observer/supervisor to be appointed by the Court. 2. The reliefs are set out in Para 25(c) and Para 25(d); they read as follows: "25( c) direct the defendant Club to have the election held by Secret Ballot/Electronic Voting Machine for fair and transparent elections: (d) direct the Executive Committee elected after the election of 2006-07 not to take any policy decision effecting the management and finances of the defendant Club till the election of the new Executive Committee to be elected by the duly constituted Central Council and its taking over the management of the Club and...." 3. According to the plaint averments the plaintiffs are members of the d first defendant, National Sports Club of India (hereafter referred to as "the Club"), which is a registered Society. The plaint adverts to formation of Society by some eminent people; its main objective being to provide means to improving physique of youth in India through sports and games of all kinds and to promote outdoor and indoor games in the country. The Memorandum of Association and Rules and Guidelines, were registered and framed on 26.8.1949. The plaintiffs also refers to eminent people- being patrons of the club. The Society was allotted land measuring 8.6 acres through a perpetual lease deed, dated 27.6.1956 by the Central Government. It also started a Club House in Mumbai, located in the prestigious area, Wodi. The total membership of the Club presently is in excess of 15,000. The members are enrolled both at Delhi and in Mumbai. 4. The plaintiffs further aver that another suit for declaration and injunction being CS (OS) No. 1243/06 had been filed against the Club and its then Central Council members. It is alleged that the suit had to be filed due to the Club being the private domain of some members in violation of all its rules and regulations governing the management; the Club was run as an autocracy rather than on democratic principles. It is claimed that in the process of primary purpose of formation of the Society had become non-existent. It is claimed that in the process of primary purpose of formation of the Society had become non-existent. The plaintiffs refer to an order made by this Court on 25.4.2007 regarding arrangement for holding the elections for 2007-08. In __ terms of the arrangement the elections due were to be held in August, 2007 and Justice (Retd.) S.K. Aggarwal was appointed to supervise the elections, to ensure its smooth conduct. The Club also agreed that a similar arrangement would be followed for the years 2008 to 2010. 5. According to the plaintiffs the observer appointed by the Court ensured that elections for the Central Council were held on 7.10.2007 at Delhi and 14.10.2007 at Mumbai. The elections were held for 14 posts; 7 each at Delhi and Mumbai regions to fill up vacancies of the retiring members of the Central Council. The total strength of the said Central Council in terms of the amended Rules and Regulations is 60; divided equally between the two regions. The plaintiffs aver that due to the efforts of the Observer there was a large turnout of members who cast their votes and that in the Annual General Meeting held in Mumbai the results for the 14 newly elected members and that the Central Council membership was formally announced. 6. It is claimed that various members approached the learned observer to hold the meeting of the Central Council, under his supervision and requested that the elections of the office bearers and members of the Executive Council should be held either by secret ballot by using electronic voting machines. The learned observer declined stating that the task was not within the purview of the powers granted by this Court. One of the plaintiffs in this case filed an application (IA No. 13433/07) in the previous suit i.e. CS(OS) No. 1243/06. The defendants rejected the proposal of the applicants regarding the election of office bearers and Executive Committee members by secret ballot. 7. It is alleged that the first plaintiff had sent a letter on 23.11.2007 to other members of the Central Council placing the proposal that elections to the post of office bearers, etc. be held through secret ballot or electronic machines, in view of the sentiments of the members and to ensure that elections for such posts were fair and transparent aimed at restoring confidence in the Management. be held through secret ballot or electronic machines, in view of the sentiments of the members and to ensure that elections for such posts were fair and transparent aimed at restoring confidence in the Management. It is alleged that the said plaintiff received a positive response from members of the Central Council, incumbent as well as newly elected members including office bearers of the previous Executive Committee. The plaintiff received a notice dated 18.11.2007 signed by the Secretary General of the erstwhile Committee - which is termed as illegality since no new Executive Committee had been constituted on 26.11.2007. It is alleged that similar notices were received by other members of the Central Council, proposing to hold a meeting of the Central Council in Delhi, which is not according to the practice followed by the Club in the past. 8. It is averred that the Central Council of the Club is now sought to - be controlled by some members of the Executive Committee whose term came to an end after the election and declaration of results. It is further averred that Sh. R.K. Mehra, Vice-President had been calling upon the Secretary General to convene the meeting of the Central Council at Mumbai in view of the demand of members to have elections of the office bearers held by secret ballot. It is claimed that the stand of the defendants to hold the meeting of the Central Council at Delhi for election of office bearers at the behest of members who lost the re-election to the Central Council, including the erstwhile President, is not in the interest of the club and is primarily an effort to negate the outcome of the elections. The plaintiffs aver that they are Central Council Members and that it would be in the interests of the Club and its members that elections for the office bearers and the Executive Committee are held by secret ballot as that would ensure a fair appointment to the satisfaction of all members of the Club. It is also claimed that the observer previously appointed i.e. Justice S.K. Aggarwal (Retd.) should be asked to further supervise the elections to the post of office bearers, etc. 9. It is also claimed that the observer previously appointed i.e. Justice S.K. Aggarwal (Retd.) should be asked to further supervise the elections to the post of office bearers, etc. 9. On the first date of the hearing of the suit the Court after issuing summons heard Counsel for defendants 33 and 36 as well as Counsel for defendant No.1 and made the following order: "7.12.2007 IA. No. 14118/07 (u/s 151 CPC) in CS (OS) No. 2368/2007 This is an application filed by the plaintiffs for appointment of an observer to give necessary directions with regard to the elections scheduled for 8.12.2007 to be conducted for election of Executive Committee of the Club by the members of the Central Council numbering 60. After certain deliberations it is agreed that an observer may be accordingly appointed. With the consent of the parties, I hereby appoint Justice S.K. Aggarwal (Retired) as the observer in this case who will observe the elections which are scheduled for 8.12.2007 at 4 p.m. in the club premises. His fees is fixed at Rs. 50,000/ - to be paid by the plaintiff. If the fees is not paid before the elections are commenced, application shall stand rejected. Application stands disposed of. Copy of the order be given dasti under the signature of the Court Master. List on the date already fixed i.e. 18th January, 2008. 9 December 07, 2007 Sd/(Aruna Suresh) Judge" 10. The defendant in its written statement says that the defendant No.1 is a Society governed by its Rules and Regulations, which are binding h upon it and on all its members including the plaintiffs. There is no obligation under the said Rules and Regulations towards the plaintiffs for taking decisions of the Central Council by secret ballot. It is alleged that there is also no obligation in law cast on the Central Council, to take its decisions through secret ballot. The plaintiffs have no rights under the rules and regulations of the Club to compel the Central Council through a mandatory order of this Court to take its decisions through secret ballot. In this regard, it is stated that Rule 47(b), which deals with elections to Central Council provides for voting by secret ballot. Rule 75 which deals with meetings of Executive Committee of the Club provides for decisions being taken by show of hands. In this regard, it is stated that Rule 47(b), which deals with elections to Central Council provides for voting by secret ballot. Rule 75 which deals with meetings of Executive Committee of the Club provides for decisions being taken by show of hands. However, Rule 68, which deals with the Central Council does not provide any specific method for taking decisions by the Central Council. Rule 68 leaves the matter to the discretion of the Central Council, which alone has to decide the manner in which it would exercise its powers and conduct its business. 11. It is further alleged by the defendant that there being no obligation, contractual or under the Rules and Regulations of the Club for taking decisions of the Central Council through secret ballot, there has been no breach of any obligation towards the plaintiffs of which the plaintiffs can compel performance. In the absence of a breach of obligation towards the plaintiff, no relief of mandatory injunction as prayed in the plaint can be granted in favour of the plaintiffs. 12. It is also alleged by the Club that as a matter of indoor management, each autonomous body like the Central Council has the right to decide upon the procedure and the manner for the conduct of its business. The Central Council is governed by the Rules and Regulations of the Club and is given absolute discretion for the conduct of its business. The Central Council has, as a matter of its indoor management, taken decisions only by show of hands and in doing so, has been guided by past practice and precedent. In following this past practice of taking decisions by show of hands, the Central Council has neither violated any rule or practice of taking decisions by show of hands, nor violated any Rule or Regulations of the Club nor breached any obligations towards the plaintiffs. 13. It is averred that the plaintiffs are not entitled to seek a mandatory injunction with regard to the internal functioning and management of an autonomous body like the Central Council without establishing a legally enforceable obligation of that autonomous body to the plaintiff and its breach. 14. Pursuant to the orders of the Court dated 7.12.2007, the observer conducted the proceeding where two questions were considered and a ruling given by him. These included the issue of secret ballot. 14. Pursuant to the orders of the Court dated 7.12.2007, the observer conducted the proceeding where two questions were considered and a ruling given by him. These included the issue of secret ballot. In the said ruling it was held by the observer as follows: "On the basis of the submissions made by the parties two issues need consideration and directions- (a) Whether any person who is not the elected member of the Central Council is entitled to participate or contest the election? (b) Whether the voting to the Executive Committee can be through secret ballot? I have considered the rival contentions. Rule 47 of the Rules and Regulations of the Club, inter alia, provides that the Central Council of the Club shall consist of 60 members, 30 members to be elected from each Region. Elections to the Central Council of the Club by the members is by secret ballot. Rule 49 provides that the first Central Council is to hold the office till expiration of five years from the date of Registration of the Club and thereafter till their successors are appointed by the Club at the ensuing Ordinary General Meeting. The elections to the retiring members to the Central Council were held on 7th and 14th October, 2007 at Delhi and Mumbai. The AGM was held at Mumbai on 24.10.2007, where the result of the elections were formerly announced. Now, the stage has reached for the election of the Executive Committee by the Central Council under Rule 68. Rule 68 begins with the words, "The Central Council may exercise all or any of the following powers which are defined in Sub-sections (a) to (e). Rule 68(b) provides for election of the present, Vice-president, Secretary or Hony Secretary and a Treasurer, etc. Mere reading of the opening words of Rule 68 makes it clear that the elections to the office . bearers of the Central Council are to be held by the Central Council itself. The Central Council as defined in Rule 47 read with Rule 49, cited above, makes it clear that the office bearers can be elected only from amongst the elected members of the Central Council. The role of the outgoing or retiring members of the Central Council comes to an end moment the result is annolU1ced at the AGM which in this case was held on 24.10.2007. The role of the outgoing or retiring members of the Central Council comes to an end moment the result is annolU1ced at the AGM which in this case was held on 24.10.2007. In my view no outsider can be allowed to participate or contest the elections. The other issue is whether the elections should be held through secret ballot or by show of hands. The word election itself envisages voting. If substantial number of the members desire that the voting should be through secret ballot, I see no reason, not to allow the same. In order to ensure fair play and avoid any objection by any member at a later stage. The elections would be held as per the schedule already circulated through secret ballots. The Secretary General is directed to make necessary arrangements for conduct of elections through secret ballots immediately." 15. On 8.1.2008 an application being IA No. 453/2008 was filed seeking appropriate directions under Section 151, CPC. The applicants who are defendant No. 1 aver about the ruling, extracted above by the observer dated 8.12.2007 claiming to be aggrieved by it. It is also contended that on the same day i.e. 8.12.2007 a Meeting presided over by Sh. B.R. Handa elected to chair it, concluded without transacting any business since several- 31 to be precise - members of the Central Council wished for a clarification from this Court about the direction to elect office bearers of the Executive Committee, through secret ballot. This application seeks a direction that the Observers order is not binding and is inoperative. 16. Though some documents in the form of letters and previous reports of the Club were placed on record, during the course of hearing, parties confined their submissions for a proper interpretation of the Rules and Regulations of the National Sports Club of India. 17. It was contended on behalf of the plaintiff by Ms. Geeta Luthra that a substantial number of Central Council members who are arrayed as party defendants and are represented through Counsel, being defendants 7, 24, 26,30 to 33, 36, 38, 42, 45, 51 to 56 and 58 are of the opinion having regard to the previous circumstances concerning elections in the Club, its best interest would be sub-served if the Executive Committee members and office bearers are elected and chosen through secret ballot or by the use of electronic voting machines. This would restore the faith of the club members and also lend credibility to the internal democratic process. Learned Counsel relied upon Rules 47 and 68 to say that although specific reference of election through a secret ballot finds place in the election to the Central Council to the Club, in Rule 47(b), yet significantly, the Central Council is obliged under Rule 68(b)(c) to elect the President, Vice-President and other members to man various posts. Under Rule 70 it also has to appoint all members of the Executive Committee in equal proportion from each region and the appointments have to be made on recommendations of the members of the concerned region. 18. It was contended that even if a substantial number though not a majority of the elected members of the Central Council, feel that election to various posts and office bearers should be through secret ballot or by use of electronic voting machines, their wishes should be given effect to since it furthers the democratic functioning of the Club, and in the long run would assist in achieving its objectives. Learned Counsel submitted that the ruling of the observer is un-exceptional and perfectly in accordance with law. She relied upon the judgment of this Court reported as Sai Sewa Dal v. Union of India, 2007 98 DRJ 679 to say that the determination of the observer, was part of his mandate to ensure peaceful and fair elections in the Club. It was further submitted that the decision in that regard was neither unreasonable nor arbitrary and the Court should direct the Club to hold election in the posts and the Executive Committee through the mode of secret ballot. 19. Learned Counsel contended that even otherwise, regardless of the ruling of the observer, Courts have recognized that election by secret ballot is an integral part of fair elections; if the process does not include secret ballot, more often than not the elections would be unfair, resulting in undermining the institution for which such elections are held. She relied upon the decisions reported as State Bank of India Staff Association v. Monindra Bhattacharya, AIR 1991 Calcutta 378 and in S. Raghubir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Suppl (1) SC 53. She relied upon the decisions reported as State Bank of India Staff Association v. Monindra Bhattacharya, AIR 1991 Calcutta 378 and in S. Raghubir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Suppl (1) SC 53. It was held in that case that the privilege of voter to divulge or not to divulge, how he votes is an integral part of any election process and that any compulsion (as would inevitably happen if the condition for a secret ballot is not enforced), would conflict with the important principle of free and fair elections. It was submitted that this principle is embodied in public policy in Section 94 of the Representation of People Act, which prescribes that no person can be compelled to divulge whether and if so whom he voted. This guarantee, it was urged, is necessary to project the integrity and purity of a democratic d process. 20. Mr. V.P. Singh, learned Senior Counsel for the defendants submitted that in the absence of a rule which can be construed as a binding condition obliging the Club or any law in that regard, the Court cannot issue an injunction to the Central Council of the Club, to elect its office bearers and other persons to various posts, through secret ballot. Learned Counsel submitted that the wording of Rule 47(b) and a conscious exclusion of a similar mandate in Rule 68, ruled out any intention on the part of the founders of the Club or the rule makers who amended it, from time-to-time, to bring in the concept of elections by a secret ballot for appointments to such posts. Learned Counsel relied upon Rule 75 to say that the mode indicated for appointment on such posts on the contrary is different and if the Court were to construe such a condition as meaning by secret ballot, it would be counter to well settled principles of interpretation. 21. Learned Counsel contended that the mode of appointment or election to various posts and all office bearers to the Club should be left to the Central Council. It cannot be directed to choose one particular mode, such as secret ballot. Counsel relied upon the principles of indoor management and submitted that the method of conducting its affairs is exclusively within the domain of the club and elected body i.e. the Central Council. It cannot be directed to choose one particular mode, such as secret ballot. Counsel relied upon the principles of indoor management and submitted that the method of conducting its affairs is exclusively within the domain of the club and elected body i.e. the Central Council. He relied upon the judgment reported as V.P. Singh v. Chairman Metropolitan Council of Delhi, AIR 1969 Del 295 for the submission that even where Courts possess jurisdiction, it should be exercised so as not to interfere with deliberations regarding indoor management of bodies like clubs, etc. The Courts must leave such bodies to manage their affairs. However, this would not apply if there is express provision of any law or the rules governing the club, enjoining it to use a particular mode for election to those posts or of the office bearers. 22. Learned Counsel relied upon Section 59 of the Representation of People Act, 1951 as well as Articles 55(3) and 66(3) of the Constitution to say that whereas the former mandated secret ballot, the latter to provisions did not enjoin secret ballot. He also relied upon the decision of the Supreme Court in Kuldeep Nayar v. Union of India, 2006 (7) SCC 1 and submitted that the Court overruled the contention that elections through open ballot would not be free and fair or that would defeat principles of democracy. 23. On 26.2.2008, with consent of parties, the following issues were framed on the basis of pleadings and the materials: Issues: 1. Whether the plaintiff proves that secret ballot is the mandated mode for elections to the Executive Committee of the first defendant, according to the Rules and By-laws governing it? 2. Whether the plaintiff is entitled to a decree of mandatory injunction, as claimed? 3. Whether the report submitted by the observer appointed by the Court is correct and justified in law and in the facts of the case, 4. Relief. The parties agreed that the suit could be heard on the basis of the existing record, as it involved interpretation of Rules and Regulations of the Club and the Report of the Observer appointed by Court. They were accordingly heard; the judgment was thereafter, reserved by Court. Findings Issue No.1: 24. For a proper analysis of this issue it would be necessary to extract the relevant provisions of the Club Rules and Regulations relied upon by the parties. 25. They were accordingly heard; the judgment was thereafter, reserved by Court. Findings Issue No.1: 24. For a proper analysis of this issue it would be necessary to extract the relevant provisions of the Club Rules and Regulations relied upon by the parties. 25. Rule l(d) defines the Central Council; l(e) defines the Executive Committee as meaning the office bearers of Club constituting the members for the time being and from time-to-time of the Executive Committee. Regional Committee means the Committee constituted by the Executive Committee to look after the affairs of the region. Clause (g) defines members to be those in accordance with rules and the patron-in-chief, patron, life member, Corporation member, original member and other classes of members; (h) defines President and Vice-President in relation to the Central Council and the Executive Committee. 26. Rule 3 sets out the different classes of members. Rules 11 to 20 provide for membership of a Club. Rule 33 provides that a General meeting of the Club should be held at least once in every year and that 15 months should not elapse after holding of the last preceding General Meeting at a place to be determined by the Executive Committee. Rule 39 states that an Annual Generat Meeting of the members may be held at the registered office of the Club at Delhi and at Mumbai, alternatively. Rule 41 provides that 50 members are entitled to vote and to be personally present and shall form a quorum for a general meeting without which no business can be carried out. 27. Rule 43, material to certain extent for the present purposes reads as follows: "The President of the Central Council and in his absence the Vice President shall be enetitled to take the chair ate every General Meeting. If there be no President or if at any meeting the president is not present within 15 minutes after the time appointed for holding of such meeting or is unwilling to act, the Vice-President or if at any meeting the Vice-President is not present within fifteen minutes after the time for holding of such meeting or is unwilling to act, the members present shall choose someone of their number to be the Chairman of that meeting." 28. Rules 47,50,55,68,70 and 75 also material for deciding the present dispute; they read as follows: "47(a) The Central Council of the Club shall consist of 60 members. Rules 47,50,55,68,70 and 75 also material for deciding the present dispute; they read as follows: "47(a) The Central Council of the Club shall consist of 60 members. Thirty members to be elected from each Region from all members of the Club so as always to have equal parity between the Bombay members and the Delhi members in the Central Council. (b) Election to Central Council of the Club shall be by members present and voting by Secret Ballot." Note: (Rule Nos. 47 and 47(b) were further amended at the Extraordinary General Meeting held on 30.4.1983 to read as above.] [Note: Rule No.48 was deleted at the meeting held on 17.9.1956] "50. The Members to retire from the Central Council shall in every year be those who have been longest in office since their last election but as between persons who become members on the same day those to retire shall (unless they otherwise agree amongst themselves) be determined by lot. A retiring members shall retain office until the dissolution of meeting at which reelection is decided or his successor is elected at the meeting or an adjourned meeting. A retiring member shall be eligible for reelection.’ “55.(a) At least six weeks before an Annual Meeting is due to meet the Executive Committee shall cause a notice of the date of such meeting and the number of vacancies to be filled to be put up on the Club Notice Board at each Club house or Stadium and inserted in two leading newspapers in each Region. Such Notice shall invite Members desirous of standing for election, other than the retiring members (who if they have signified their willingness to stand for election within the prescribed period shall be deemed to have been duly proposed and seconded.” “68. The Central Council may exercise all or any of the following powers: (a) Suggest ways and means for carrying out the objects of the Club. (b) Elect President, Vice-President, Secretary or Honorary Secretary and a Treasurer or Honorary Treasurer of the Club in such manner as to assure as far as possible that the posts of President, Vice-President shall be shared between the Regions. The posts of Honorary Secretary, Honorary Treasurer shall be shared between the Regions alternately every two years unless otherwise mutually agreed to. The posts of Honorary Secretary, Honorary Treasurer shall be shared between the Regions alternately every two years unless otherwise mutually agreed to. (c) Appoint and remove members of the Executive Committee so as always to maintain equal parity between members from Delhi and members from Bombay and regulate its proceedings. (d) Elect patrons-in-chief, patrons and vice-patrons of the Club. (e) Exercise all such powers as are not by these Rules or by any resolution of the Club delegated or entrusted to the Executive Committee./1 “70. The Central Council shall appoint all the members of the Executive Committee in equal proportion from each Region and these appointments shall be made on the recommendation of the members of the respective Region. Similarly the vacancy or vacancies shall be filed in the same manner.” “75. Questions arising at any meeting of the Executive Committee shall be decided by a show of hands and in case of equality of votes the Chairman of the meeting shall have a second or casting vote.” 29. Although a faint plea regarding past practice concerning election of office bearers and for the posts of President, Vice-President, etc. through secret ballot was made in the pleadings, no contention in that regard or any material substantiating it was pressed. The plaintiffs assertions were premised on their interpretation of the rules and the law. 30. As noticed earlier, the plaintiffs principal contention is that secret balloting is an integral and inseparable component of fair elections without which the entire process would be undermined and rendered without credibility. The defendants contention is to the contrary; it is asserted by them that the Rules governing the Club do not mandate such elections and that the existence of Rule 47 specifically excludes the interpretation suggested by the plaintiffs. 31. Now there can be no doubt that elections to the Central Council are to be conducted through secret ballot; Rule 47(a) says as much in clear terms. This is further supported by Rule 55 which prescribe, rather elaborately, the method for ensuring secrecy of the ballot for the election to the Central Council. This is, on the other hand, contrasted with the lack of specific provision for secret ballot in regard to elections concerning the Executive Committee. This is further supported by Rule 55 which prescribe, rather elaborately, the method for ensuring secrecy of the ballot for the election to the Central Council. This is, on the other hand, contrasted with the lack of specific provision for secret ballot in regard to elections concerning the Executive Committee. The plaintiffs place heavy reliance on these express provisions and further submit that these principles are salutary and sound and would further the interests of the Club in all its other elective processes. 32. The plaintiffs rely on the judgment of the Supreme Court in Raghubir Singh Gills case. In that case the central issue which arose was whether four ballot papers were unauthorizedly tampered with after the voters had cast their first preference votes in the election to the Council of States (Rajya Sabha) by the Punjab Legislative Assembly. During the stage of recording of evidence a witness was examined on behalf of the election petitioner; the question directed to him was the number of preferences, cast by him, on the ballot paper. This was objected to on the ground that it violated the secrecy of the ballot, mandated by Section 94 of the Representation of People Act. In this context the Court made some observations about the public policy consideration underlying Section 94 of the Representation of People Act which provides that no witness or other person shall be required to state for whom he has voted an election. In that case the Court held that the Courts should apply the doctrine of waiver and if the privilege is granted for the benefit of an individual, even if conferred in public interest, nonetheless if the beneficiary wants to risk disclosure, that would not ipso facto violate any other principle because the prohibition against disclosure is aimed that helping the voter to freely vote without inhibition or fear of being subjected to calamity. Therefore, the Court held that though Section 94, is founded on public policy it is a qualified privilege, to the voter not to be compelled to be disclosed, for whom he has voted and nonetheless if he chooses to volunteer the information, Section 94 is not violated. Therefore, the Court held that though Section 94, is founded on public policy it is a qualified privilege, to the voter not to be compelled to be disclosed, for whom he has voted and nonetheless if he chooses to volunteer the information, Section 94 is not violated. The interesting sequel to this decision is that Act 40 of 2003 inserted the following proviso to Section 94: "Provided that this section shall not apply to such witness or other person where he has voted by open ballot." 33. The plaintiffs have relied upon the ruling in Sai Sewa Dal v. Union of India (supra) and State Bank of India Staff Association v. Monindra Bhattacharya, AIR 1991 Calcutta 378. However, the former was in the context of the role of the observer in respect of holding elections and the latter, about the necessity to ensure fair elections through secret ballot. Yet both these decisions did not require interpretation of conditions in a Society or juristic Body, like in the present case. 34. A Club or other unregistered association, in common law, was treated as creature of contract. The Rules which govern such institutions, put in place by its founders are therefore existing conditions for which the new members agree to subscribe and be bound by. Traditionally Courts in common law, did not make any distinction between such contracts and other contracts entered into between willing parties. The emergence of different forms of juristic personalities, designed to meet societies changes and reflective of varying needs, such as trade unions, companies, cooperative societies, trusts, endowments and societies, however, led to legislation regulating their conduct. A registered society - as the first defendant is in this case - has an existence independent of its members. The first defendant Club and its defendants are governed by the charter, i.e. its Constitution and its Rules. These Rules are binding upon those who subscribe to it as in the case of a Memorandum of Association and Articles of Association of a Company. 35. The Rules extracted above show that for the Central Council, secret balloting is mandated; it is indeed a fundamental principle underlying such elections. Obviously this was the only practicable method since the membership of the first defendant Club is wide - there appears to be thousands of such members. 35. The Rules extracted above show that for the Central Council, secret balloting is mandated; it is indeed a fundamental principle underlying such elections. Obviously this was the only practicable method since the membership of the first defendant Club is wide - there appears to be thousands of such members. Rule 55 fortifies this fundamental premise as it outlines - quite elaborately - the manner in which the secret ballot papers are to be kept, dealt with and counted and so on. Yet when it comes to the Executive Committee and other office bearers, the same set of Rules speaks differently; Rule 68(d) uses the expression "elect" in respect of the posts of President, Vice-President, Secretary, Honorary Secretary and Treasurer. It also states that such election can be held in such manner as to assure that the posts shall be shared between the regions. Rule 68(c), on the other hand, does not talk of election. It empowers the Central Council to "appoint and remove" members of the Executive Committee provided equal parity between members from Delhi and members from Bombay is maintained. This intention - of appointment is also reiterated in Rule 70, which provides that the Central Council shall appoint all members of the Executive Committee in equal proportion from each region. 36. Rule 75 deals with the conduct of meetings in an Executive Committee; here the mode for deciding is show of hands - in case of equality of votes, the Chairman of a meeting would have a second or casting vote. 37. A close reading of Rules 47, 50, 55, 68, 70 and 75 would show the b following: 1. Central Council members have to be elected through secret ballot [Rules 47 and 45] 2. The election to the post of President, Vice-President, Honorary Secretary, Treasurer, etc. are to be by the Central Committee. These posts have to be shared between the two regions alternatively every two years unless otherwise mutually agreed to [Rule 68(b)]; 3. The Central Council can appoint and remove members of the Executive Committee provided that equal parity between members, there region and members from Bombay is maintained. Such recommendations have to be made and vacancies in the Executive Committee filled, proportionately on the basis of members of the respective regions [Rule 68(c) and Rule 70]. 4. The Central Council can appoint and remove members of the Executive Committee provided that equal parity between members, there region and members from Bombay is maintained. Such recommendations have to be made and vacancies in the Executive Committee filled, proportionately on the basis of members of the respective regions [Rule 68(c) and Rule 70]. 4. The reference to elections would mean, in the case of the named posts, under Rule 68(b), election from amongst those elected to the Central Council. Otherwise, the Rules would have provided for direct election to these posts. This interpretation appears to be borne out by the distinction between "election" of the named office bearers by the Central Council, as opposed to "appointment", the expression used for Executive Committee members, under Rule 68(c) read with Rule 70. However, the same may not apply for office bearers. under Rules 68(c) and 70. . 38. One of the cardinal principles of interpretation of documents is that where parties entered into written engagements, containing express stipulations, it is not desirable to extend them through implication. The general presumption in such cases is that having expressed some terms explicitly, the parties have expressed all conditions by which they intend to be bound under the instrument [Aspdin v. Austin, 1944 (5)QB671]. It was held in Luxor (Eastbourne) Ltd. v. Cooper, 1941 AC 108 that there is a presumption against adding to terms in a contract or other instruments expressly drawn up containing several subject matters. It was held- "the general presumption is that the parties have expressed every material term which they intended should govern the agreement, whether oral or in writing." 39. Another rule enunciated by English Courts while interpreting documents is that a term should not be implied if it is inconsistent with express terms of the instruments or its general tenor. This rule is because the implication of a term rests upon the presumed intention of the parties and that it is unlikely that they would have intended to incorporate, by implication a term which was inconsistent with one they have incorporated expressly. This rule is because the implication of a term rests upon the presumed intention of the parties and that it is unlikely that they would have intended to incorporate, by implication a term which was inconsistent with one they have incorporated expressly. It was thus held in Lynch v. Thorne, 1956(1) WLR that: "...a term prima facie to be implied must, according to well settled principles, always yield to the express letter of the bargain." Similarly, in relation to functioning of companies in India, it has been held that where a particular activity has not been provided for in the Memorandum of Association, the directors cannot seek recourse to the Articles of Association to imply that such business falls within its objects [Ref. A. Lakshmanaswami Mudaliar v. LIC of India, AIR 1963 SC 1185 ]. 40. What can be gleaned from the above is that if parties have, in relation to a subject matter partially dealt with it by providing expressly with one portion and not dealing with the other portion at all, the presumed intention is that they did not intend the portion provided for to be applied to that what is not so provided. 41. So far as the contention that secret balloting is an essential public policy principle applicable to all elective processes is concerned, the Court is unable to accept such a broad proposition. Indeed the decision in S. Raghubir Singh Gill, relied upon by the plaintiff itself provides an answer, where express statutory conditions such as Section 94, conceived in public interest, assuring secrecy of ballot are provided, it is open to the voter to disclose the pattern of voting without violating public policy or falling foul of any provision of law. In fact the proviso to Section 94 (inserted by the amending Act 40 of 2003 and upheld by Constitution Bench in Kuldeep Nayar) in so many words states that the secrecy mentioned in the main part of the provision would not apply to open balloting; the Constitution Bench in tact upheld the provision and further held that deleting the requirement, or not providing for secret balloting cannot be termed illegal or reprehensible. 42. 42. In the light of the above discussion, it is held that unless there is an express provision mandating secret balloting in an elective processes, it cannot be held that such secret ballot or mode is the only permissible mode - it is open for the body or institution concerned to evolve the necessary method whether it is by voice vote, consensus or any other acceptable mode. For these reasons this Court answers the first issue against the plaintiff; secret ballot is not the prescribed mode under the rules governing the defendant club, for election to the office bearers of the club and a members of its Executive Committee. Issue No.2 43. Injunctions in India as a class of relief are embedded in provisions of the Specific Relief Act. They are in two forms: perpetual. (Section 38) and mandatory (Section 39). They read as follows: "38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. 39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts." 44. Section 38, which regulates perpetual injunctions, is, "subject to" other provisions of the Act. It also enables the Court to grant injunctions to prevent the breach of an obligation existing in the plaintiffs favour, whether expressly or by implication. Section 38, which regulates perpetual injunctions, is, "subject to" other provisions of the Act. It also enables the Court to grant injunctions to prevent the breach of an obligation existing in the plaintiffs favour, whether expressly or by implication. However, this reference to obligation through implication is lacking, in relation to the conditions for grant of mandatory injunction. That relief can be granted to prevent breach of an obligation and the necessity to compel the performance of certain acts which the Court is capable of enforcing. "Obligation" under Section 2(a) includes every duty enforceable by law. 45. Apart from the significant differences in the phraseology used by "._ Parliament in relation to the form of the two injunctions, what is apparent is the restricted nature of relief available in the form of mandatory injunction. It leaves no room for injunctive relief to enforce implied obligations. 46. A rule of statutory interpretation is that where the Legislature has enacted something expressly and not provided for it in another part, the omission is to be given effect to on a plain grammatical interpretation [Ref. D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors., II (2003) SLT 602= (2003) 5 SCC 622 . Similarly, in Magor and St. Mellons Rural District Council v. Newport Corporation, (1952) A.C. 189, it was held that where the statutes meaning is clear and explicit, words cannot be interpolated. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute [Ref. Narayanaswamy v. G. Panneerselvan, (1972) 3 SCC 717 ]. The Court therefore, cannot put into the Act words which are not expressed, and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the province of the Court [Kamalaranjan v. Secretary of State, AIR 1938 P.C, 281 at283 and O.S. Singh v. Union of India, (1996) 7 SCC37]. 47. In relation to Issue No.1, this Court found against the plaintiff and held that the Rules of the Club cannot be read so as to imply an obligation or duty to hold elections through secret ballot, for the Executive Committee and other office bearers. 47. In relation to Issue No.1, this Court found against the plaintiff and held that the Rules of the Club cannot be read so as to imply an obligation or duty to hold elections through secret ballot, for the Executive Committee and other office bearers. In the context of this context, it would also be useful to refer to the argument of the defendants about applicability of the rule of indoor management. This rule was evolved in relation to companies, for the first time, in Royal British Bankv. Turguand, (1856) 6 E & B 327 (Exch., Ch.). Shortly put, it means autonomy of the juristic entity or enterprise from scrutiny about its decisions which otherwise fall within the sphere of its decision making. So long as the body acts within the mandate of the charter establishing it, or granting it powers, the doctrine insulates its decisions from probe and outside interference. Thus, the question whether secret ballot or electronic voting, or voting through some other form should be resorted to not being expressly subject to any Rule - the Rules on the contrary maintaining a silence, as opposed to secret ballot for election to Central Council- the argument in support of the applicability of the doctrine of indoor management is well founded. If the Court were to direct the holding of election through secret ballot, through mandatory injunction, it would be in the absence of any obligation; it would also impinge on the autonomy of the Central Council. This issue is accordingly answered against the plaintiff. Issue No.3 48. The provisions of Order 26, Code of Civil Procedure enable the Court to appoint a commissioner to investigate or inquiry into a matter, and report to the Court, in the proceeding. The provision is in aid of the a Courts effort to gather the true state of affairs about any question or issue, involved in the suit. The commissioner therefore is primarily required to act as the eyes and ears of the Court. 49. The provisions under Order 26 are to facilitate the Courts appreciation of matters, which are local in character. Thus, commissioners are b appointed to ascertain market value of a property, to report as to accounts, state of the property and such like matters. However, the essential functions of the Court, which require adjudication cannot be gone into by the commissioner. The provisions under Order 26 are to facilitate the Courts appreciation of matters, which are local in character. Thus, commissioners are b appointed to ascertain market value of a property, to report as to accounts, state of the property and such like matters. However, the essential functions of the Court, which require adjudication cannot be gone into by the commissioner. Thus, in Ram Krishna v. Rattan Chand, AIR 1931 PC 136 it was held that the law does not authorize the Court to delegate to a commissioner a trial of any material issue which the Court itself has to try. C Recently, in Jute Corporation of India Ltd. v. Sudera Enterprises Pvt. Ltd., AIR 2000 Cal. 152 , it was held that the fixation of quantum of rent, which is a judicial function cannot be delegated to a Commissioner, even if he is technically qualified as a valuer. Another feature which has to be kept in mind is that a Court has to instruct the necessary instructions, upon which d the commission is to be executed, under Order 26 Rule 12. 50. In this case, the Court had, on 8.12.2007, appointed the learned observer to act "as the observer in this case who will observe the elections which are scheduled for 8.12.2007 at 4 p.m. in the club premises." Thus, no specific instructions on hearing parties about the mode of elections, or those eligible to contest, were given. In these circumstances, the defendants arguments cannot be ruled out as ill-founded. The question about whether parties should hold secret ballot is in fact connected to one of the main reliefs sought in this case; it has also been put in issue. As regards the question about who should contest elections, tha t is not in issue raised in these proceedings. 51. In the light of the above discussion, it is held that the Commissioners order, though well intentioned and aimed at ending all controversies, amounted to judging the issues in the suit. Issue No.4 52. In the light of the above discussion, Issue Nos 1 to 3 are held against the plaintiff. Since this Court had appointed Shri Justice S.K. Agarwal, on 7th December, 2007, there is no reason to recall that order, although during the hearing the defendant had expressed that some other Observer should be appointed by the Court, in view of the opinion expressed by him. Since this Court had appointed Shri Justice S.K. Agarwal, on 7th December, 2007, there is no reason to recall that order, although during the hearing the defendant had expressed that some other Observer should be appointed by the Court, in view of the opinion expressed by him. However, the mere fact that he expressed an opinion cannot be the basis for concluding that he should not be requested to perform the task of an Observer. 53. The above discussion would show that there has been some controversy as to the manner in which the meeting and election to the posts as well as Executive Committee is to be held, for the club. However, in the previous suits, the parties had agreed that the Observer should continue to be present during elections for the current year as well as in 2009. In the circumstances, the order of 7th December, 2007 is hereby confirmed; the learned Observer shall oversee the elections and make a report of the proceedings in the meeting of the Central Council of the Club. The said meeting shall be held within 8 weeks from today; at least 3 weeks advance notice of the meeting, subject to the rules, shall be issued to all members of the Central Council, indicating the time, venue and date of the meeting, as well as the agenda, including the election to the posts and the Executive Committee. The members present and voting shall first ensure that a Chairman of the meeting is elected, before taking up the agenda items. The Observer shall make a report of the proceedings. The parties shall bear the fee of the observer, which is Rs. 50,000/-. 54. The suit is decreed in the above terms. No costs. Result: Suit decreed.