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2010 DIGILAW 2045 (MAD)

S. Saravanamuthu v. V. Moorthy & Others

2010-04-30

P.R.SHIVAKUMAR

body2010
Judgment 1. The plaintiff in the original suit O.S.No.5851 of 2004 on the file of the learned XI Assitant Judge, City Civil Court, Chennai is the appellant in the second appeal. The suit was filed by the appellant herein/plaintiff against the respondents herein for a permanent injunction restraining them from interfering with the administration and management of the technical institution of the said Trust, namely Thirutani Arulmiku Murugen Educational Trust. Though the suit was filed against totally five persons, the suit, as against the fifth respondent (Kamalakar), had been dismissed for non-prosecution and the suit, as against the other respondents, namely respondents 1 to 4 alone was proceeded with. Out of the above said four persons, namely respondents 1 to 4, except the first respondent/first defendant, the other three respondents, did not contest the suit and remained ex-parte before the trial court. The first respondent/first defendant alone filed a written statement and contested the suit. The said suit was decreed as prayed for by the learned XI Assistant Judge, City Civil Court, Chennai by judgment and decree dated 12.01.2007, without cost. 2. As against the said judgment and decree of the trial court, the first respondent herein/first defendant preferred an appeal on the file of the lower appellate court, namely the court of the learned V Additional Judge, City Civil Court, Chennai in A.S.No.324/2007.In the said appeal, a petition under Order XLI Rule 27 of Civil Procedure Code was filed as C.M.P.No.199/2009 for reception of additional documentary evidence. The learned lower appellate judge allowed the said petition and marked the document produced by the first respondent herein/first defendant as Ex.B1 and disposed of the said petition. So far as the appeal is concerned, the learned lower appellate judge, on a re-appreciation of evidence, allowed the appeal by his judgment and decree dated 29.09.2009, reversed and set aside the decree passed by the trial court and dismissed the suit O.S.No.5851/2004 filed by the appellant herein/plaintiff, with a direction that the respective parties should bear their own cost. The said judgment and decree of the learned lower appellate judge dated 29.09.2009 is impugned in this second appeal. 3. After notice before admission to the respondents was ordered, the first respondent alone entered appearance through counsel. The said judgment and decree of the learned lower appellate judge dated 29.09.2009 is impugned in this second appeal. 3. After notice before admission to the respondents was ordered, the first respondent alone entered appearance through counsel. The submissions made by Mr.T.R.Rajagopalan, learned senior counsel, representing the counsel on record for the appellant and by Mr.M.S.Krishnan, learned Senior counsel, representing the counsel on record for the first respondent were heard. The judgments of the courts below and the decrees drawn there from and also the documents produced in the form of typed set were perused. 4. The plaintiff in O.S.No.5851/2004 on the file of the XI Assistant Judge, City Civil Court, Chennai, who proved to be successful before the trial court but unsuccessful before the lower appellate court in an appeal filed by the first respondent herein, has come forward with the present second appeal questioning the correctness of the judgment and decree of the lower appellate court. The suit was filed by the appellant for a bare injunction not to interfere with the administration and management of the technical institution of the suit trust, by name Thirutani Arulmiku Murugen Educational Trust. The said prayer was made based on the contention of the appellant herein/plaintiff that when the above said trust faced certain difficulties in running the trust institution, namely a polytechnic in the name of the trust, the Board of Trustees, by a resolution dated 210. 1999 entrusted the administration and management of the trust with the appellant/plaintiff; that the same was followed by a Memorandum of Understanding dated 210. 1999 entrusted the administration and management of the trust with the appellant/plaintiff; that the same was followed by a Memorandum of Understanding dated 210. 1999 to the effect that the object of the trust should be completed entirely by the plaintiff and the then existing trustees agreed to resign their trusteeship receiving certain amount as compensation; that the respondents 1 to 5 herein/defendants 1 to 5 expressed in categorical terms in the MOU that they were unable to continue as trustees and they would submit their resignation letters; that all the respondents received the compensation mentioned in the MOU and thereafter ceased to have anything to do with the management and administration of the technical institution; that the management and administration of the technical institution stands vested totally with the appellant/plaintiff and the appellant/plaintiff is the sole person in management and administration of the technical institution; that while so, the first defendant wanted the trust to be handed over to him by sending a legal notice through his advocate on 30.06.2004 which was suitably replied; that the respondents/defendants, who have relinquished their office of trustees, did have no right to interfere or meddle with the administration of the institution which stands vested with the plaintiff and that since the respondents/defendants tried to interfere with the administration of the technical institution, the appellant/plaintiff was constrained to file the suit for the above said relief. 5. The contesting defendant, namely the first respondent herein/first defendant filed a written statement contending that, though such a Memorandum of Understanding dated 210. 1999 was signed by the parties as pleaded in the plaint, the same was not acted upon and the MOU did not come into force, as the conditions found in the same, were not complied with by the appellant/plaintiff. It was contended further therein that the first respondent/first defendant is the founder trustee of the trust even on the date of filing of the suit and that hence the suit for injunction against him was not maintainable. It was also submitted by the first respondent/first defendant that he had filed another suit in this regard as O.S.No.40/2005 on the file of the XVI Assistant Judge, City Civil Court, Chennai and that the plaintiff had got no right to carry on with the affairs of the trust, as he was removed form the trust by the other trustees. 6. 6. Based on the above said pleadings, the learned trial judge framed two issues, which are as follows:- 1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in the suit? 2. To what relief the plaintiff is entitled? In the trial, the appellant/plaintiff figured as the sole witness and deposed as P.W.1, besides marking Exs.A1 to A12 on his side. On the side of the respondents/defendants, the first respondent/first defendant figured as D.W.1, the sole witness and no document was marked before the trial court. 7. Thelearned trial judge, after considering the pleadings and evidence in the light of the arguments advanced on either side, decided the issue No.1 in favour of the appellant herein/plaintiff and held that the appellant/plaintiff was entitled to the relief of permanent injunction as prayed for. The same was based on the resolution of the suit trust dated 210. 1999 and the MOU dated 210. 1999, a copy of which is marked as Ex.A1 and MOU dated 210. 1999 marked as Ex.A2. However, the learned trial judge made an observation that the amount payable as per the MOU was not paid to the defendants in full and that the amount that still remains to be payable as on the date of the plaint could not be ascertained on the basis of the statement of accounts produced by the appellant/plaintiff as Ex.A8. However, relying on an arbitration clause, found in Ex.A2-MOU, which says, "in case there arises any dispute between the parties hereto in respect of the above MOU, the parties will be at liberty to refer such disputes for arbitration under the Arbitration and Conciliation Act, 1996" and held that since such a condition had been incorporated in the MOU, the respondents/defendants could not interfere with the management of the institution, without referring the matter under the provisions of the Arbitration and Conciliation Act, 1996 for arbitration. 8. It was also answered by the learned trial judge that the resolution dated 210. 8. It was also answered by the learned trial judge that the resolution dated 210. 1999 under which the management and administration of the institution run by the trust was entrusted to the appellant/plaintiff, was not subsequently cancelled; that the MOU marked as Ex.A2 was also not cancelled by referring the dispute to arbitration as per the arbitration clause on the ground that the entire amount agreed to be paid under the MOU was not paid and that hence the respondents/defendants were not entitled to interfere with the plaintiffs management and administration of the institution run by the trust. Regarding the second issue, the learned trial judge came to the conclusion that the appellant/plaintiff was not entitled to any other relief, other than the relief of permanent injunction. Accordingly, the learned trial judge decreed the suit as prayed for without cost by judgment and decree dated 12.01.2007. 9. As against the judgment and decree of the trial court, the first respondent herein/first defendant filed an appeal on the file of the lower appellate court in A.S.No.324/2007.In the said appeal, the first respondent herein/first defendant, who figured as the appellant before the lower appellate court filed C.M.P.No.199/2009 for reception of the certified copy of the Trust Deed as an additional piece of evidence. The said petition filed under Order LXI Rule 27 was not opposed and hence the said petition was allowed. The document sought to be produced as the additional evidence is nothing but a certified copy of the trust deed. The dispute is relating to the administration of the trust and the management of the technical institution run by the trust. Naturally speaking, the appellant/plaintiff should have filed the said document. However, the same was sought to be filed by the first respondent herein/defendant in the appeal filed before the lower appellate court and the petition for reception of additional evidence was also not opposed. The learned lower appellate judge also came to the conclusion that the entire case was based on the Trust Deed itself and that hence the production of the said Trust Deed was useful for deciding the case in an appropriate manner. The marking of the document was also not opposed and hence the same was marked as Ex.B1 and was considered along with the other evidence, both oral and documentary, adduced before the trial court. The marking of the document was also not opposed and hence the same was marked as Ex.B1 and was considered along with the other evidence, both oral and documentary, adduced before the trial court. Upon such a consideration, the learned lower appellate judge came to the conclusion that the trial court committed a grave error in decreeing the suit without properly considering the fact that the appellant herein/plaintiff who had come to the court with the suit for injunction, had not come with clean hands and that he had not fulfilled the obligations imposed on him under the Memorandum of Understanding, which he relies on in support of his contention that he is entitled to the exclusive management and administration of the institution of the trust. The learned lower appellate judge has also come to the conclusion that the first respondent herein/first defendant had not resigned as trustee of the suit trust; that the appellant herein/plaintiff has not proved that all other trustees had resigned; that on the other hand Exs.A4 and A5 which relate to two of the trustees alone were produced and that the other two trustees are not proved to be either resigned or removed as trustees or relinquished their trusteeship. Even in respect of the alleged resignation by the 3rd and 4th respondents/3rd and 4th defendants, the learned lower appellate judge has found that there was no evidence to show that the said resignations were accepted or rejected by passing necessary resolution by the trust in the trust board meeting. 10. The learned lower appellate judge has also held that the receipt relied on by the appellant/plaintiff and marked as Ex.A2 evidences payment of Rs.3,45,000/- alone and that the payment of the entire amount stipulated in Ex.A2-MOU was not substantiated by the appellant/plaintiff. The learned lower appellate judge has also observed that the management and administration of the institution was entrusted to the appellant herein/plaintiff, as he was the then secretary of the trust, for the sole purpose of achieving the object of the trust and that as such the appellant herein/plaintiff could not run the institution entrusted to him according to his whims and fancies and for his personal benefit. 11. 11. Regarding the arbitration clause, the learned lower appellate judge has come to the conclusion that it was the plaintiff, who should have been found fault with for not relying on the arbitration clause and referring the matter to arbitration; that when the plaintiff chose to file the suit, there was no obligation on the part of the defendants to refer the dispute to arbitration and that hence the trial courts view that the defendants could not interfere with the administration and management of the educational institution run by the trust without referring the dispute to arbitration, was improper and unsustainable. The lower appellate court, being the final court of appeal on facts, on a thorough re-appreciation of evidence, came to the conclusion that the obligations imposed on the appellant herein/plaintiff under Ex.A2-MOU were not wholly fulfilled by him; that he had not come to the court with clean hands; that he could not appropriate and repropriate while relying on Ex.A2-MOU; that the first respondent herein/first defendant had not resigned as a trustee of the suit trust and that hence the relief of permanent injunction prayed for by the appellant herein/plaintiff could not be granted. Consequently, the learned lower appellate judge allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit without cost. Thus the appellant herein/plaintiff is before this court by filing the second appeal on various grounds set out in the memorandum of second appeal. 12. As against the decree passed by an appellate court, a further appeal, namely second appeal, shall lie to the High Court under Section 100 of CPC only on a substantial question of law. Unless a substantial question of law is proved to have arising for adjudication in the second appeal, no second appeal against the appellate court decree shall be entertained. In Section 100(3) & (4) of CPC it has been stated that an appeal under the section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and where the high court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. The following are stated to be substantial question of law involved in the second appeal as per the memorandum of appeal: 1. The following are stated to be substantial question of law involved in the second appeal as per the memorandum of appeal: 1. Whether the first appellate court is right in reversing the decree and judgment of the trial court? 2. Whether the first respondent is entitled to the relief as he is estopped under law after the resolution dated 210. 1999? 13. The above said second question incorporated in the memorandum of appeal does not convey a proper meaning, as it contains a mistake which has been highlighted by underlining the words wrongly used. As it was pointed out by the court that the substantial questions of law formulated by the appellant and incorporated in the memorandum of appeal were not proper and were not in fact substantial questions of law, the learned counsel for the appellant chose to produce a further memorandum containing five questions as substantial questions of law involved in the second appeal. They are as follows: (1) When under Ex.A1 Resolution passed by the Trust Board on 210. 1999, the exclusive right of management was entrusted to the plaintiff, is the lower appellate court right in rejecting the claim of the plaintiff? .(2) Is the lower appellate court right in rejecting the plaintiffs claim to be in management after holding that the MOU Ex.A2 acted upon by entrusting the management to the plaintiff and also by receiving part amount as per MOU under Ex.A3? .(3) Is the lower appellate court right in dismissing the suit inspite of the categorical admission of the 1st defendant in Ex.A6 notice that the plaintiff was entrusted to manage the affairs of the Trust? .(4) When the defendants had not moved an application under Sec.8 of the Arbitration and Conciliation Act, 1996, is the lower appellate court right in holding that the plaintiff ought to have approached the Arbitrator for the settlement of dispute regarding the interference of other Trustees in his administration? .(5) Is not the 1st defendant estopped from interfering with the plaintiffs management of the suit trust after having received the amount as per MOU under Ex.A3? 14. But upon hearing the arguments advanced on the side of the appellant herein/plaintiff and on behalf of the first respondent herein/first defendant, this court is of the view that the appellant herein/plaintiff has not proved the involvement of any substantial question of law in this case. 14. But upon hearing the arguments advanced on the side of the appellant herein/plaintiff and on behalf of the first respondent herein/first defendant, this court is of the view that the appellant herein/plaintiff has not proved the involvement of any substantial question of law in this case. Admittedly, Thirutani Arulmiku Murugen Educational Trust was founded on the 15th day of September 1997 by the first respondent herein/first defendant under the registered Trust Deed dated 15.09.1997.A certified copy of the same has been produced by the first respondent herein and marked as Ex.B1.All the parties to the suit rely on Ex.B1. Under Ex.B1, the appellant/plaintiff, the respondents 1 to 5/defendants 1 to 5 and one Srinivasan constituted the Board of Trustees and formed the above said trust for public charitable purpose.The first respondent/first defendant is described to be the founder of the trust. What happened to Srinivasan who figured as the sixth trustee as per the trust deed, has not been adverted to by either of the parties. However, since it is inferred, from the conduct of the parties and the manner in which they put forward their pleading in the evidence, that the said Srinivasan subsequently ceased to be a trustee when a resolution dated 210. 1999 marked as Ex.A1 was passed.The said Srinivasan was shown to be a ex-trustee in the said resolution. The MOU marked as Ex.A2 was entered into between the defendants 1 to 5, as parties of the first part and the appellant/plaintiff, as party of the second part. In the said MOU, Srinivasan was not shown to be a person continuing as a trustee on the date of Ex.A2.Ex.A2 contains a recital to the effect that Srinivasan was relieved from the activities of the trust as per the minutes of meeting held on 210. 1999. Therefore, becomes the admitted case of both the parties that the appellant herein/plaintiff and the respondents 1 to 5 herein/defendants 1 to 5 were the trustees of the suit trust, namely Thiruthani Arulmiku Murugen Educational Trust, as on the date of Ex.A2. .15. As per the resolution No.2 dated 210. 1999, which was marked as Ex.A1, it was resolved to appoint the appellant herein/plaintiff as the permanent chairman of the trust board and the Secretary of the educational institution to manage the institution. .15. As per the resolution No.2 dated 210. 1999, which was marked as Ex.A1, it was resolved to appoint the appellant herein/plaintiff as the permanent chairman of the trust board and the Secretary of the educational institution to manage the institution. As per resolution No.3, certain powers were .conferred upon and certain obligations were imposed on the appellant herein/plaintiff for the better management and administration of the educational institution run by the trust. Following the said resolution, a memorandum of understanding was entered into between the respondents 1 to 5 herein / defendants 1 to 5 as parties of the first part and the appellant herein/plaintiff as party of the second part to the said MOU dated 210. 1999. The same has been marked as Ex.A2.In the MOU it was agreed between the appellant herein/plaintiff and the respondents 1 to 5 herein/defendants 1 to 5 that defendants 1 to 5 would relinquish all their rights and interests over the affairs of the trust in favour of the appellant/plaintiff on payment of a sum of Rs.75,00,000/-in three installments of Rs.25,00,000/- each. Relying on the above said resolution marked as Ex.A1 and the MOU marked as Ex.A2, the appellant herein/plaintiff has contended that the amount agreed to be paid under the MOU was paid to all the respondents herein/defendants 1 to 5; that hence, thereafter the respondents/defendants ceased to have any right to interfere with the affairs of the trust and management of the institution run by the trust and that hence they should be injuncted by way of a permanent injunction from interfering with the appellants/plaintiffs management and administration of the educational institution run by the suit trust. 16. Of course, it is true that the respondents 2 to 5/defendants 2 to 5 have not chosen to contest the suit. But the first respondent herein/first defendant still continues to be a trustee of Thiruthani Arulmiku Murugen Educational Trust and that hence the suit against the trustee of the institution, who incidentally happened to be the founder trustee, for an injunction not to interfere with the affairs of the trust and management of the education institution run by the trust, is not maintainable and the same deserves dismissal. It is the further contention of the first respondent/first defendant that the appellant herein/plaintiff having not fulfilled the obligations under Ex.A2-MOU and having chosen to use the trust funds for his personal benefit, has chosen to come forward with the suit for injunction pursuant to a notice issued by the first respondent herein/first defendant. Alleging that the appellant herein/defendant, without the knowledge of the other trustees, had started to act on his own against the purpose of the trust and calling upon him to hand over the trust and informing that in case of failure he would be forced to take action against the appellant herein/plaintiff in civil and criminal courts, the first respondent/first defendant has issued a legal notice. The said notice has been marked as Ex.A6. A reply was sent to the said notice and a copy of the reply notice dated 14.07.2004 has been marked as Ex.A7. Referring to the MOU dated 210. 1999, it was stated therein that the first respondent herein/first defendant was estopped from questioning the functioning of the trust, the administration of which had vested exclusively with the appellant herein/plaintiff. It was also stated therein that as per the MOU, entire amount payable to the first respondent was paid to him. .17. The suit was filed on 110. 2004 i.e. subsequent to the exchange of the above said notices under Exs.A6 and A7. Therefore, it is quite clear that the immediate provocation for the appellant herein/plaintiff to file the suit was the issuance of Ex.A6-notice and the purpose of filing the suit was to pre-empt the first respondent herein/first defendant from approaching the court for any relief touching the functioning of the trust or administration and management of the educational institution run by the trust.In fact, subsequently, the first defendant herein has also filed a suit in this regard, going into the details of which is unnecessary for the disposal of this second appeal. The principal contention of the appellant herein/plaintiff for seeking injunction against the respondents herein/defendants, in particular against the first respondent herein/first defendant, is two folds. Firstly, it is the contention of the appellant that the respondents/defendants, especially the first respondent/first defendant, having received the amount in terms of Ex.A2-MOU, are estopped from interfering with the functioning of the trust and management of the educational institution run by the trust, which was solely entrusted to the appellant herein/plaintiff. Firstly, it is the contention of the appellant that the respondents/defendants, especially the first respondent/first defendant, having received the amount in terms of Ex.A2-MOU, are estopped from interfering with the functioning of the trust and management of the educational institution run by the trust, which was solely entrusted to the appellant herein/plaintiff. Secondly, since the management and administration of the educational institution was entrusted to the appellant herein/plaintiff by the resolution of the board dated 210. 1999 marked as Ex.A1, no individual trustee, in particular when they have agreed to resign from trusteeship, can interfere with the plaintiffs management of the educational institution. 18. The answer given by the contesting respondent, namely the first respondent/first defendant to the above said contention of the appellant/plaintiff is that the MOU has not been given effect to because of the failure on the part of the appellant/plaintiff to make payment in accordance with the terms found in Ex.A2-MOU; that when the trust having entrusted the management of the institution to one of the trustees who was also acting as the secretary of the institution, it cannot be said that the trust board or trustees have lost their control of the management altogether and that the power given to the appellant/plaintiff by Ex.A1 resolution could be revoked by a subsequent resolution. It is also the contention of the contesting respondent, namely the first respondent/first defendant, that when the funds of the trust is not utilised for the objects of the trust, any of the trustees shall have the power to question it and institute proper proceedings for ensuring proper administration of the trust funds. On a consideration of the evidence adduced on both sides in this regard, the lower appellate court has arrived at a right conclusion that the appellant herein/plaintiff was not able to prove that his obligations under the MOU towards the first respondent/first defendant was fulfilled. .19. According to the terms of Ex.A2-MOU, a total sum of Rs.75,00,000/-was to be paid in three installments before the end of December 2000 to the respondents/defendants 1 to 5. Thus each one of the respondents 1 to 5/defendants 1 to 5 would be entitled to get a sum of Rs.15,00,000/-from the appellant herein/plaintiff in terms of Ex.A 2-MOU. .19. According to the terms of Ex.A2-MOU, a total sum of Rs.75,00,000/-was to be paid in three installments before the end of December 2000 to the respondents/defendants 1 to 5. Thus each one of the respondents 1 to 5/defendants 1 to 5 would be entitled to get a sum of Rs.15,00,000/-from the appellant herein/plaintiff in terms of Ex.A 2-MOU. According to the appellant/plaintiff, in terms of the MOU, respondents 3 and 4 chose to resign their trusteeship and the same would prove that the amount agreed to be paid by the appellant herein/plaintiff was paid to them. Exs.A 4 and A5 are the letters of resignation given by the respondents 3 and 4 respectively. Ex.A 4 is dated 02.04.2002 i.e. subsequent to Ex.A 2-MOU, whereas Ex.A5 is dated 210. 1999 i.e. anterior to Ex.A 2-MOU. Ex.A 1-Resolution was dated 210. 1999.Ex.A5 bears the same date.Ex.A 2-MOU came into existence two days later.Therefore, Ex.A5 cannot be a document in support of the case of the appellant herein/plaintiff that the amount payable to R4 under the MOU was paid to him. The MOU itself contains a clause to the effect that the first installment was to be paid by the end of December 1999 and Ex.A5 is anterior to the same. Therefore, Ex.A 5 cannot be the document by which the payment of the amount stipulated in the MOU can be proved. As Ex.A 4 which is posterior to the last date fixed for payment of the third and last installment under the MOU coupled with the fact that the third respondent has not chosen to contest the suit, may give an inference that, either the amount payable to him under the MOU was paid to him or that he was not interested. Though the resignation letters obtained from the third and fourth respondents have been marked as Exs. A4 and A5, the .learned lower appellate judge has rightly observed that there is nothing on record to show that the resignation letters were placed before the Trust Board meeting and that there is no record to show whether their resignations were accepted or rejected. We need not harp on the question, as they have not chosen to contest the suit. We need not harp on the question, as they have not chosen to contest the suit. On the other hand, the first respondent herein/first defendant has contested the suit tooth and nail contending that the obligation of the appellant herein/plaintiff towards him is not fulfilled and he continues to be the founder trustee of Thiruthani Arulmiku Murugen Educational Trust. Admittedly, the first respondent/first defendant has not given any resignation letter resigning from the trusteeship of the above said trust. Therefore, as rightly pointed out on behalf of the first respondent, no injunction can be sought for against the first respondent on the premise that he ceased to be a trustee of the suit trust. .20. On the other hand, the contention of the appellant herein/plaintiff seems to be that the first respondent having agreed to resign his trusteeship and having received the amount payable to him under Ex.A2-MOU, is estopped from contending that he would continue to act as the trustee of the suit trust. Though the MOU is admitted, the payment of the amount stipulated therein is stoutly denied. In order to prove his contention that the entire amount payable under the MOU was paid to the first respondent/first defendant, the appellant herein/plaintiff relies on the receipt issued by the first respondent/first defendant, which has been marked as Ex.A3 on the side of the plaintiff. It must be noticed that Ex.A3 has been prepared in a 10/- rupees non-judicial stamp paper. Though part of the contents was typed before signing the said document, the first respondent/first defendant has added rider to the effect "the amount due to the individual member to be discussed and to be settled according to trust members decisions for which I sign this cash receipt for Rs. Three lalkhs forty five thousand only. "A reading of Ex.A3 would show that a sum of Rs.3,45,000/- alone was received on 19.07.2001 from the Chairman of Thirutani Arulmiku Murugen Educational Trust as per MOU dated 210. 1999. The said payment was designated to be "towards the clearance of my (first respondents/first defendants) outstanding liability". The said recital is sought to be projected by the appellant herein/plaintiff as a receipt in full settlement of the amount payable under the MOU, which is stoutly disputed by the first respondent/first defendant. 1999. The said payment was designated to be "towards the clearance of my (first respondents/first defendants) outstanding liability". The said recital is sought to be projected by the appellant herein/plaintiff as a receipt in full settlement of the amount payable under the MOU, which is stoutly disputed by the first respondent/first defendant. It should be noticed that the amount was said to be received by the first respondent/first defendant towards the clearance of his outstanding liability. It means the liabilities incurred by him for the objects of the trust and not the liability of the appellant herein/plaintiff. Except the said document and Ex. A8-statement of accounts, no other document has been produced by the appellant herein/plaintiff to show that the amount payable to the first respondent/first defendant under the MOU was paid in full. The trial court which chose to decree the suit on other grounds, has also arrived at a factual finding that the amount payable under Ex.A 2-MOU was not proved to be fully paid. The learned lower appellate judge has also arrived at a concurrent finding regarding the same. Ex.A8-statement of accounts was held to be unreliable by both the courts below. The above said concurrent finding of fact that the plaintiff had not proved the fulfillment of his obligation under Ex.A 2-MOU, namely payment of a sum of Rs.75,00,000/-out of which the first respondent/first defendant was entitled to Rs.15,00,000/-cannot be said to be either infirm or defective, much less perverse. There cannot be any interference in the second appeal unless the said finding turns out to be a perverse one, in which case alone the question relating the same will get elevated as a substantial question of law.The above said concurrent findings of the courts below, cannot be termed perverse and hence no interference can be made by this court in the second appeal. The said finding deserves confirmation. 21. It is the further contention raised on behalf of the appellant herein/plaintiff that since the management of the educational institution was fully entrusted to the appellant/plaintiff as per Ex.A1-resolution and the appellant/plaintiff has improved the institution by putting his own efforts and money, the other members of the trust cannot interfere with the plaintiffs administration and management of the educational institution run by the trust. The appellant herein/plaintiff claims to have derived the power of administration and management of the educational institution run by the trust by virtue of a resolution passed by the trust board marked as Ex.A1.When such is the case, he cannot be allowed to contend that the very same trust board cannot pass a further resolution revoking such a power given to the appellant/plaintiff. He also cannot contend that the other trustees should not be allowed to move for any such resolution. In this regard, a meek attempt was made on behalf of the appellant that the trust board was reconstituted and all the respondents, namely defendants 1 to 4 ceased to be the trustees of the trust. But in support of such a contention, the plaintiff has not chosen to produce any document showing dissolution of the earlier trust board or resignation of all the trustees except the appellant/plaintiff and induction of new trustees. Moreover, as per clause 19 of the Trust Deed marked as Ex.B1, the contents of the Trust may be varied or amended either by way of addition or deletion or substitution or otherwise by majority of Trustees through a resolution to that effect in their meeting provided such variation or amendment shall not take effect unless it is approved by the Commissioner of Income Tax, Madras. Clause 19 is extracted here under:- " 19. Amendment Any of the presents of these Trust may be varied or amended either by way of addition or deletion or substitution or otherwise by majority of Trustees through a resolution to the effect in their meeting provided that such variation, amendment shall not take effect unless it is approved by the Commissioner of Income Tax, Madras." 22. It is not proved by the appellant herein/plaintiff that the Trust Deed was amended through a resolution in a meeting of the trustees and such amendment was approved by the Commissioner of the Income Tax. Above all, though the defendants 1 to 5 (Trustees) had agreed to resign their Trusteeship on receipt of the amounts stipulated in the MOU, except respondents 3 and 4, the other respondents are not proved to have resigned their Trusteeship. If at all, the plaintiff wanted to enforce the agreement contained in the MOU, he should have approached the court for specific performance and not for injunction. If at all, the plaintiff wanted to enforce the agreement contained in the MOU, he should have approached the court for specific performance and not for injunction. As three out of the five respondents have not proved to have resigned their Trusteeship, there could not have been any induction of a new Trustee in their place without their consent and without there being a resolution passed by the Trustees in their meeting. Similarly, the Trust Deed could not have been amended without a meeting of the trustees having been convened. No document has been produced by the appellant herein/plaintiff to show such an amendment or variation of the Trust Deed removing the defendants, especially defendants 1, 2 and 5 and inducting new Trustees. Moreover, there is no iota of proof that the contesting respondent, namely the first respondent/first defendant ceased to be a Trustee. Therefore, the suit filed by the appellant herein/plaintiff cannot be construed to be a suit against persons unconnected with the affairs of the Trust. 23. As pointed out supra, the provocation for the appellant/plaintiff to file the suit was the issuance of Ex.A6-Notice by the first respondent herein/first defendant in his capacity as a Trustee of the suit Trust. The suit has also been filed by the appellant/plaintiff on the false allegations regarding payment of the amount agreed to be paid under the MOU, marked as Ex.A2.A person claiming benefit under a document, cannot disown the liability imposed on him by the very same document. Having not fulfilled the obligation imposed on him under Ex.A2-MOU, the appellant/plaintiff cannot succeed in getting the relief of injunction against the defendants, especially the first respondent/first defendant, as the appellant/plaintiff has not come to the court with clean hands. 24. Of course, it is true that Ex.A2-MOU contains a recital that in case of any dispute between the parties to the MOU in respect of the same, the parties will be at liberty to refer such disputes to arbitration under the provisions of the Arbitration and Conciliation Act, 1996. Clause 11 of the MOU reads as follows:- " 11. 24. Of course, it is true that Ex.A2-MOU contains a recital that in case of any dispute between the parties to the MOU in respect of the same, the parties will be at liberty to refer such disputes to arbitration under the provisions of the Arbitration and Conciliation Act, 1996. Clause 11 of the MOU reads as follows:- " 11. In case there arises any dispute between the Parties hereto in respect of the above Memorandum of Understanding, the Parties will be at liberty to refer such disputes to Arbitration under the Arbitration and Conciliation Act, 1996." A reading of the said clause will show that there is no absolute bar for approaching the civil court and on the other hand, parties were said to be at liberty to refer such disputes to arbitration. The said clause could be construed only optional and not mandatory. When one of the parties to an agreement containing such an arbitration clause approaches the civil court by way of a civil suit, the other party before entering upon defence on merit, can submit an application under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter to arbitration. As the appellant herein/plaintiff has chosen to file the suit, the option was available to the respondents/defendants to file such an application for referring the dispute for arbitration and to stay the suit till then. 25. As pointed out supra, it is only an option available to the respondents/defendants in the suit and the respondents/defendants, on the grounds that there is an arbitration clause in the MOU, could not be prevented from putting forward their defence in the suit filed by the appellant/plaintiff. The arbitration clause could have been validly relied on by the defendants against the plaintiff and not by plaintiff against the defendants. The learned trial judge, without considering the scope of the same had arrived at an erroneous conclusion that the defendants were bound by the arbitration clause and that hence the plaintiff was entitled to the relief of injunction against them. This aspect was considered by the lower appellate court in proper perspective and the lower appellate court has arrived at a correct conclusion that the respondents herein/defendants could not have been found fault with for not opting to refer the matter for arbitration. 26. This aspect was considered by the lower appellate court in proper perspective and the lower appellate court has arrived at a correct conclusion that the respondents herein/defendants could not have been found fault with for not opting to refer the matter for arbitration. 26. For all the reasons stated above, this court comes to the conclusion that there is no defect or infirmity in the judgment and decree passed by the learned lower appellate judge; that there is no scope for interference with the same by this court in exercise of its appellate power in the second appeal and that the second appeal does not even merit admission and on the other hand deserves to be dismissed. 27. Before parting with the case, this court wants to place on record one more ground for the dismissal of this second appeal filed by the appellant/plaintiff. Admittedly, the suit Trust, namely Thiruthani Arulmiku Murugen Educational Trust is a public charitable trust. The MOU marked as Ex.A2 does not indicate that the amount of Rs.75,00,000/-agreed to be paid to the defendants for distancing themselves from the administration of the Trust was for the amount which the trust owe to them. It is also not the clear case of the appellant/plaintiff that the amount was sought to be paid not from out the Trust funds but from out of the personal funds of the appellant or the personal funds of the persons proposed to be inducted as new Trustees without casting the burden on the trust of repaying such amount to the plaintiff or the persons who may contribute for making payment to the defendants. On the other hand, it is crystal clear from the recitals found in Ex.A2 that the amount was proposed to be taken out of the funds of the Trust and paid to the defendants. The plaintiff as well as the defendants seem to have made a device by entering into the MOU to share the funds of the Trust, which is against the purpose and object of the Trust.In fact clause 12 of the Trust deed marked as Ex.B1 bars the Trustees and their relatives from being benefited by the Trust fund. It reads as follows:- " 12. It reads as follows:- " 12. Trustees and their relatives not to be benefitted i) No part of the Income of the Trust shall enure directly or indirectly for the benefit of the founder/settlor, Trustees or any of their relatives or any person who makes a substantial contribution or to any concern in which any of these persons has substantial interest. For this purpose relative in relation to Founder/Settlor, Trustees, the person who makes substantial contribution to the Trust shall mean his or her spouse, brother or sister of the person or of his or her spouse or any lineal ascendant or descendant of the person or of his or her spouse or any lineal ascendant or descendant of the person or of his or her spouse. The meaning of the term substantial contribution or substantial interest in a concern shall be as per the Income Tax Act 1961 as it stands or amended from time to time. ii) The Trustees shall not be entitled to receive any remuneration from the Trust, however, they shall be entitled to any remuneration, allowance, perquisite, fee for the services rendered in any capacity other than trustees, and the Trustees may reimburse themselves or pay out of the Trust funds all expenses incurred by them in or about the execution of Trust and powers of these presents including reimbursement of conveyance expenses for attending the Trust meeting, sitting fee and alike." 28. The appellant herein/plaintiff has not proved that either the amount paid under Ex.A3 or any other amount allegedly paid to the defendants was out of his own personal funds and not from out of the Trust fund. As such it amounts to a fraud played on the Trust. The court should protect the interest of the Trust. It should not allow the spending of the Trust fund for any purpose other than the purpose for which the Trust was created. As such it amounts to a fraud played on the Trust. The court should protect the interest of the Trust. It should not allow the spending of the Trust fund for any purpose other than the purpose for which the Trust was created. In case of public charities, either the Advocate General or two or more persons having an interest in the Trust and having obtained the leave of the court, may institute a suit for the removal of any Trustee for appointing a new Trustee, vesting any property in a Trustee, directing a Trustee who has been removed or a person who has ceased to be a Trustee to deliver possession of any trust property in his possession to the person entitled to the possession of such property, directing accounts and enquiries, allocation of portions of the Trust property for particular objects, authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged, settling a scheme or granting such further or other relief as the nature of the case may require as per Section 92 of the Civil Procedure Code. The notice issued by the first respondent through his advocate marked as Ex.A6 is aimed at invoking the said powers of the court. Under such circumstances alone, the appellant/plaintiff has come forward with the present suit with the sole aim of making personal profit for himself out of the Trust property, Trust funds and income of the Trust derived there from. This court cannot allow such a thing to happen. For the said reason also the appellant/plaintiff is to be non-suited for the relief sought for by him in the suit. 29. For all the reasons stated above, the appeal deserves to be dismissed. Accordingly, the second appeal is dismissed. No cost.