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Sajjan K. Sanyasi Vs. Padmavathi Montessori School - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberR.F.A. No. 244 of 1983
Judge
Reported inILR1985KAR1354; 1984(2)KarLJ407
ActsKarnataka Societies Registration Act, 1960 - Sections 15
AppellantSajjan K. Sanyasi
RespondentPadmavathi Montessori School
Appellant AdvocateR. S. Chakrabhavi and ;C.V. Subba Rao, Advs.
Respondent AdvocateV.N. Satyanarayan, Adv. for R-1 to R-6
DispositionAppeal partly allowed
Excerpt:
(a) karnataka societies registration act, 1960 (karnataka act no. 17 of 1960) - co-opting member of managing com-mittee and appointment of honorary secretary cum- treasurer -- in the absence of any provision in the act or in the rules empowering managing committee, power vests only in general body.;(i) there is no provision either in the act or in the rules empowering the managing committee to take any person as a member of the managing committee. the power is given to the general body to elect a member to the managing committee at its annual general body meeting. thus induction of d-9 as a member to the managing committee was clearly beyond the power of the managing committee and as such d-9 could not act as a member of the managing committee.;(ii) evidently the governing council is a.....kudoor, j.1. this appeal is by defendants 1 to 9 directed against the decree dated 23-4-1983 passed by the iii additional city civil judge, bangalore city in o.s. no. 935/1981 decreeing the suit brought by the plaintiffs (respondents 1 to 6 in this appeal) and granting the relief of declaration that thecommittee alleged to have been constituted on 8-3-1984 by defendants 1 to 9 is illegal, unconstitutional and opposed to the rules and regulations governing the 1st plaintiff school and permanent injunction restraining defendants 1 to 9other agents from interfering in any manner in the management of the said school by the committee headed by the plaintiffs 2 and 3 as president and secretary respectively and a direction to the 10th defendant bank (7th respondent herein) to allow plaintiffs 2.....
Judgment:

Kudoor, J.

1. This appeal is by defendants 1 to 9 directed against the decree dated 23-4-1983 passed by the III Additional City Civil Judge, Bangalore City in O.S. No. 935/1981 decreeing the suit brought by the plaintiffs (respondents 1 to 6 in this appeal) and granting the relief of declaration that thecommittee alleged to have been constituted on 8-3-1984 by defendants 1 to 9 is illegal, unconstitutional and opposed to the rules and regulations governing the 1st plaintiff school and permanent injunction restraining defendants 1 to 9other agents from interfering in any manner in the management of the said school by the Committee headed by the plaintiffs 2 and 3 as President and Secretary respectively and a direction to the 10th defendant bank (7th Respondent herein) to allow plaintiffs 2 and 3 to operate the institution account bearing No. S.B. 1822.

2. The case of the plaintiffs as set out in the plaint is as follows :

The 1st plaintiff Padmavathi Montessori School was started about 18 years ago. It is an educational institution (for short the 'institution') registered under the Karnataka Societies Registration Act, 1960, The main object of the institution was to establish educational institutions in the State of Karnataka open to all communities to impart education and other connected purposes, The institution is governed by its own Memorandum of Association and Rules and Regulations. Under the rules and regulations, general body meeting of the institution shall be held once in a year. A general body meeting was held on 21-12-1980 at which the 2nd plaintiff was elected as the President, the 1st defendant as the Vice-President, the 3rd plaintiff as Secretary-cum-Treasurer and plaintiffs 4 and 5, defendants 3 and 4 and one Viswanath were elected as members of the Managing Committee. The Committee thus constituted took charge of the management of the institution and has been functioning smoothly since then. The fact of constituting the committee was intimated to the Assistant Educational Officer. After the Committee took over the affairs of the institution, the 2nd and 3rd plaintiffs have started operating the institution account with the 10th defendant. The staff member and other employees of the institution were paid their salaries etc. regularly. Examination for the students of the institution was being conducted regularly. When the institution was so functioning, defendants 1 to 9 with a view to take control of the management of the institution, intimated the 10th defendant not to allow plaintiffs-2 and 3 to operate the institution account, alleging that there weredisputes between the members of the institution. Some of the defendants appeared to have submitted a complaint to the Assistant Educational Officer, Southern Range, Bangalore. Acting upon such a complaint, the Assistant Educational Officer wrote a letter dated 28-2-1981 to the institution to set right certain alleged irregularities. Such of those alleged irregularities pointed out in the letter were complied with. While the management of the institution was thus being carried on, the 2nd and the 3rd plaintiffs received a letter dated 10-3-1981 from the 1st defendant stating that as per the direction of the Assistant Educational Officer, he convened an emergency general body meeting on 8-3-1981 at which a new Managing Committee was constituted with defendant-1 as President, defendant-2 as Vice-President, defendant-8 as Secretary, defendant-9 as Treasurer and defendants 3 to 7 as members of the Committee and further calling upon plaintiffs-2 and 3 to hand over all the documents of the institution. Some of the defendants who were members of the previous committee acted adverse to the interest of the institution by joining hands with other defendants in forming the latter committee. The action on the part of the defendants is high-handed and illegal. Emergency meeting of the general body could not be convened in the manner stated by the 1st defendant in his letter. The procedure adopted for convening such a meeting is unknown to law and the committee constituted at such a meeting has no existence in the eye of law. Under the rules and regulations, no person other than the Secretary could convenean emergency meeting for transacting any of the business of the institution. The President is the chief controlling authority of the institution and the Secretary is the Chief Executive Officer who alone are competent to convene any meeting of the general body. Any general body meeting not being so convened has no validity and the members of the committee alleged to have been elected such a meeting cannot in any manner represent the institution. No notice of the meeting had been served on the plaintiffs or other members of the institution as required under law. The required number of days' notice for convening the emergency general body meeting was also not given. The Assistant Educational Officer had not issued any direction to the 1st defendant to convene general body meeting nor has he got power to do so. Defendants-1 to 9 have conspired together with a view to prevent the smooth running of the management of the institution by the former committee, and areputting-forth all kinds of obstructions. On a complaint made by some of the defendants, the 10th defendant has also prevented the plaintiffs 2 and 3 from operating the institution's account. The salaries of the staff and other employees for the month of February 1981 was paid by the 2nd plaintiff from his pocket in order to avoid inconvenience to the staff members. The 10th defendant has no right to prevent plaintiffs-2 and 3 from operating the account on the complaint of unauthorised persons. On these grounds, the plaintiffs brought the suit for a declaration that constitution of the later committee is illegal,unconstitutional and for a permanent injunction restraining defendants 1 to 9 or their agents from interfering in any manner in the management of the institution by the earlier committee headed by plaintiffs-2 and 3 as President and Secretary respectively and for mandatory injunction or direction to the 10th defendant to allow plaintiffs 2 and 3 to operate the institution account opened with the 10th defendant and for such other incidental reliefs.

3. Defendants-2 to 9 have resisted the suit by filing a joint written statement. Defendant-1 adopted the written statement of defendants-2 to 9. In their statement, the defendants-1 to 9 contended that on the date of suit, plain-tiff 3 was not the Secretary of the institution and, therefore, not competent to represent the 'institution' in the suit, Similarly, plaintiff-2 was not the President of the institution and likewise plaintiff-4 to 6 were not the members of the Managing Committee. Thus, they contended that plaintiffs-2 to 6 have no locus standi to institute or conduct the suit or to question the validity of the constitution of the governing body at the general body meeting held on 8-3-1981. Defendants-1 to 9 constituted the lawful governing council and Managing Committee of the 1st plaintiff-institution and they are in lawful management. They further say that a general body meeting was held on 21-12-1980 for election of the office-bearers but no validly elected body of the office-bearers came into existence as the third plaintiff got him-self planted illegally as Secretary-cum-Treasurer of the institution at the alleged election held, which is contrary to the rules and regulations of the institution. The rules and regulations do not contemplate an elected Secretary but only an ex-officio Secretary to be co-opted to the governing council. Theexofficio Secretary has been invariably the Principal of the institution. The rules and regulations also do not contemplate election of the treasurer and the treasurer also all along has been a non-elected person. The alleged committee said to have come into existence on 21-12-1980 has no legal or lawful existence at all. Even if an election as alleged was held, a list of the members of the committee said to have been elected at the said meeting has not been filed with Registrar of Societies within 14 days from the date of the alleged election as required under Section 13 of the Karnataka Societies Registration Act, 1960 and no such list has been forwarded to the Assistant Educational Officer as required under the Grant-in-Aid Code. Plaintiffs-2 to 6 were defaulters in payment of the membership fee as on the date of the alleged election and as such they were disqualified to seek election to the governing body under the rules and regulations. Thus, the constitution of the ManagingCommittee on 2l-12-1980 was unlawful and bad in law. Defendant No. was appointed as the treasurer by the general body on 21-12-1980 and he was operating the institution account with defendant-10. Later, plaintiffs-2 and 3 in collusion with each other attempted tobypass defendant-9 and operate the account by themselves which was objected to by defendant-10. Then, plaintiff-3 produced a false document purported to have been signed by the members of the general body wherein many of the signature were forged. At this,defendant-10 suspected the bona fides of plaintiff-3 and did not accept the document. Thereafter, on the representation made by defendants-1, 8 and 9, the 10th defendant-Bank did not permit plaintiffs-2 and 3 to operate the bank account of the institution. In fact, defendants 1 and 9 are the lawfully elected members of the Managing Committee on 8-3-1981 with full knowledge of the plaintiffs and as such the plain-tiffs are not entitled for any relief. The Asst. Educational Officer did issue direction to defendant-1 to conduct the general body meeting and the direction issued by him was not invalid. They denied all other averments made in the plaint. Finally, they prayed for the dismissal of the suit.

4. Defendant-10 filed a separate written statement contending inter alia that the account in the name of theinstitution was opened on 10-1-1972 by one H. Mohammed Jaleeluddin and Smt. R. Indumathi representing themselves as the President and Secretary respectively of the institution. As and when changes took place in the management of the institution, once in 1971 and again in 1980, the account of the institution was directed to be operated by two more sets of people with whom the Bank had no trouble. With effect from 22-12-1980, defendant-10 was intimated that J. R. R. Naidu plaintiff-3 and one M. Appaswamy Rao would operate the account of the institution. Practically there was notrouble even then, Again with effect from 6-2-1981. Bank was intimated that plaintiffs 2 and 3 would operate the account.Defendant-10 in the first instance believed in the representation made by plaintiffs-2 and 3 but on 2-3-1981, defendant-8 who had first opened the account and in whom the Bank had reposed confidence for nearly 9 years, intimated not only orally but also in writing that the operation of the account of the institution by plaintiffs-2 and 3 was illegal etc. Thus, defendant-10 came to know that there was some trouble among the members who are conducting the affairs of the institution and as such requested both plaintiffs-2 and 3 as well as defendant-8 to obtain necessary orders from the Court to operate the account of the institution. Defendant-10 thus acted bona fide in not permitting plaintiffs 2 and 3 to operate the institution account with the Bank. There is no cause of action whatsoever against defendant-10. On these grounds, defendant-10 sought for the Dismissals of the suit withexemplary costs.

5. The plaintiffs and defendants-2 to 9 both sought to present a reply statement and a rejoinder to the replystatement respectively under Order VIII Rule 9 C.P.C. but failed to obtain the leave of the Court for presenting them. Although the plaintiffs had made an application under Order VIII Rule 9 C.P.C. there was no order passed by the Court below on the said application granting leave to file the reply statement. Similarly, the defendants also sought to produce the rejoinder under Order VIII Rule 9 C.P.C. but I find no order of the court granting leave to present it. The records would not show that the Trial Court had either permitted the parties to file the subsequent pleadings or they had been in fact received by the Trial Court as part of the pleadings. Hence I do not propose to traverse the averments made in the reply statement and the rejoinder.

6. On the pleadings of the parties, the Trial Court raised the following issues :

1. Whether the plaintiff establish that the Managing Committee elected on 21-12-1980 is lawfully constituted and as such is in lawful management of plaintiff-I Institution?

2. Whether the plaintiffs further establish that the Committee said to have been constituted by the defendants on 8-3-1981 is illegal and unconstitutional and opposed to the Rules of the Society ?

3. If so, whether they further establish the obstruction on the part of the defendants?

4. Whether the present suit in the present form is maintainable?

5. What order?

7. The Learned Trial Judge, on appreciating the evidence both oral and documentary produced by the parties, held that the Managing Committee constituted on 21-12-1980 (hereinafter called the 'Shivaswamy Committee') was lawful and as such it was in lawful management of the institution, that the alleged committee constituted by the defendants on 8-3-1981 (for short 'Sajjan Committee') was illegalunconstitutional and opposed to the rules and regulations of the society that the defendants caused obstruction to the members of the 'Shivaswamy Committee' in carrying on the affairs of the institution and that the suit brought by the plaintiffs was maintainable and decreed the suit as prayed for as per the judgment and decree dated 23-4-1983. Hence, this appeal by defendants-1 to 9.

8. Sri R. S. Chakrabhavi, the Learned Advocate appear ing for the defendants, formulates 3 points for consideration They were : (1) the finding of the Trial Court that the 'Shivaswamy Committee' constituted on 21-12-1980 was lawful and as such it was in lawful management of theinstitution is patently erroneous and opposed to the evidence on record ; (2) the suit was not properly instituted by theinstitution as required under Scction-15 of the Societies Registration Act, since the person in whose name the suit was filed was incompetent to represent the institution and (3) there was no illegal or unlawful interference by the defendants in the management of the institution.

9. Before adverting to the points for consideration, it will be useful to refer to the relevant provisions of the Karnataka Societies Registration Act, 1950 and the rules and regulations of the institution.

10. Section 5 of the Karnataka Societies Registration Act, 1960 (for short the 'Act') provides for the mode of forming Societies. Section 6 lays down the requirements with respect to Memorandum. Section 11 deals with general meeting. Sub-section (1) of Section 11 contemplates of holding a General meeting every year and lays down the normal business to be transacted at such general meeting. Sub-section (2) provides that the first annual general meeting of the society shall be held within 18 months of the registration of the society. It further provides for holding subsequent Annual General Meetings and the period within which such Annual General Meeting to be held. Sub-section (3) provides for convening a special general meeting on the requisition of the President or the Chairman if any, of the governing body or on the requisition of not less than one - third of the total number of members of the society entitled to vote, who shall state in writing the business for which they wish the meeting to be convened and the governing body shall within 10 days from the date of the receipt of the requisition proceed duly to call a meeting for the consideration of the business stated, on a day not later than 40 days from the date of the receipt of the requisition. Section 13 contemplates filing of the list of the names, addresses and occupations of the members of the governing body with the Registrar within 14 days succeeding the day on which the annual general meeting of the society is held. Section 15 provides for the mode of filing suits by and against the society. It lays down that every society registered under the Act may sue or be sued in the name of the President, Chairman or Member - Secretary or the Trustees as shall be determined by the Rules and Regulations of the society and in default of such determinations in the name of such person as shall be appointed by the governing body for the occasion. Section 25 provides for an enquiry by the Registrar into the constitution, working and financialcondition of a registered society under certain circumstances. Section 27A provides for appointment of an administrator by the State Government to manage the affairs of the society under the circumstances stipulated thereunder for a period not more than 4 years. Section 28 deals with offences and penalties under the Act. Governing body as defended under Section 2(a) means the governors, council, directors,committee, trustees or other body to whom by the rules and regulations of the society, the management of its affairs is entrusted. 'Member' as defined under sub-section (b) of Section 2 means a person who, having been admitted to membership of a society in accordance with the rules and regulations thereof, shall have paid his subscription and shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations but in allproceedings under the Act, no person shall be entitled to vote or to be counted as a member whose subscription at the time shall have been in arrear for a period exceeding three months.

11. Rule l of the Rules and Regulations of the Society (for short the 'Rules') provides for membership of the Association. It lays down that the students of the age of above 18 years of institution run by the Association, the members of the school staff, the parents of the students, past or present, and all those who are interested in theeducational activities are eligible to become members of the Association, on payingRs. 1/- only as admission fee and an annual fee of Rs.3/- payable at Re.0-25 per month or at the beginning of each financial year in advance. Rule 2 provides that the official year of the Association shall be from the 1st of January to 31st December of each year Rule 3(a) provides that a general body meeting of the Association shall be held once a year not later than the end of September of each year after the accounts of the Association for each official year have been closed and audited and passed by the Governing Council. Sub-rule (b) provides that at each general body meeting, the General body shall electPresident, Vice-President and 5 members of governing council, Sub-rule (c) stipulates that the Secretary of the school shall always be an Ex-officio member of the association and the treasurer. Sub-rule (a) of Rule 4 stipulates that the President shall be the chief controlling authority of the association and shall preside at all meetings including the general body meeting. Sub-rule (d) states that the Secretary shall be the chief Executive Officer of the Association and lays down the various functions of the Secretary. Rule 9 stipulates that a list of names, addresses and occupations of the members of the governing body entrusted with the management of the institution and a copy of the balance sheet of income and expenditure account, audited by the CharteredAccountant shall be filed with the Registrar on or before the 14th day succeeding the day on which the annual general body meeting is held. Bearing these provisions of the Act and the Rules in mind, let me now proceed to consider the points formulated by Sri Chakrabhavi, the Learned Advocate for the defendants (appellants) for consideration.

POINT No. 1 :

12. Sri Chakrabhavi elaborating the first point, argued that the meeting called on 21-12-1980 cannot be held to be the general body meeting of the association in the eye of law, that the plaintiffs who were said to have been elected as the office-bearers and members of the Managing Committee cannot derive any right or authority to manage the affairs of the institution by virtue of their alleged election to the governing council at the said meeting, that the general body meeting was not convened by a person authorised by the Act and the Rules and that all the persons participated in the alleged general body meeting were not the members of the association.

13. There was no dispute between the parties that a general body meeting was convened on 21-12-1980. The case of the plaintiffs is that the general body meeting convened on 21-12-1980 was as contemplated under the provisions of the Act and the Rules at which a governing council consisting of a President, a Vice-president, Secretary-cum-Treasurer and 5 members of the Managing Committee were elected for the year 980-81. This was the case pleaded by the plaintiffs in their plaint. The general body meeting was preceded by a notice Ex. P.2 dated 27-11-1980. That notice was issued by defendant-9 Dr. P. Appaswamy Rao in his capacity asSecretary of the then existing governing council. The notice Ex. P. 2 shows that it was a notice for convening theextraordinary general body meeting of the association to be held on 21-12-1980 at the school premises at 4 p.m. On the strength of the notice Ex. P.2, the general body meeting of theassociation was called on 21-12-1980 at which the committee headed by T.S. Shivaswamy, plaintiff-2 as President was constituted. Ex. P. 1 is the minutes book of the Association and Ex. P.l(a) is the proceedings of theextraordinary general body meeting held on 21-12-1980. The proceedings of themeeting Ex. P.l(a) would show that, that meeting was attended by 23 members. It further shows that in that meeting, Plaintiff-2 was elected as the President, defendant-1 as Vice-President, plaintiffs-4 and 5, defendants-3 and 4 and one Viswanath were elected as members of the Managing Committee and plaintiff-3 was appointed as the Secretary-cum-Treasurer by the general body. The validity and legality of theconstitution of 'Shivaswamy Committee' has been assailed by Sri Chakrabhavi on the ground that the extraordinary general meeting called in pursuance of the notice Ex. P.2 issued by defendant-9 in his alleged capacity as Secretary cannot be called lawful and legal as defendant-9's appointment as the Secretary of the Governing Council that was in existence prior to 21.12.80 was wholly illegal as he was said to have been appointed by the Governing Council then in existence and not by the general body. Defendant-9 was appointed as Hon. Secretary-cum-Treasurer by the ManagingCommittee and not by the general body, cannot be disputed. It is seen from the proceedings of the Managing Committee Meeting dated 20.10.1980 at item No. 11, defendant-9 was taken as a Member of the Managing Committee in place of Lakshminarayana Rao with immediate effect. Item No. 12 shows that defendant-9 was appointed as Hon. Secretary cum.Treasurer from 30-10-1980 on his being relieved of his duty as Financial Adviser and Administrator since that post was not approved by the Assistant Educational Officer as per his letter dated 24-9-1980. Thus, it is seen from the above evidence that defendant-9 was first inducted to the Managing Committee which was in existence prior to 21-12-1980 as a Member and then appointed as the Secretary-cum-Treasurer of the association on 29-10-1980. Defendant-9's induction as a member of the Managing Committee by the other members of the Managing Committee in their meeting held on 29-10-1980 could not be in accordance with the rules governing the Association, as it is clearly provided underClause(b) of rule that the president, Vice-President and 5 members of the Governing Council shall have to be elected at the annual general body meeting. 1 find no provision either in the Act or in the rules empowering the Managing Committee to take any person as a member of the ManagingCommittee. The power is given to the general body to elect a member to the Managing Committee at its annual general body meeting. Thus induction of defendant-9 as a member to the Managing Committee on 29-10-1980 was clearly beyond the power of the Managing Committee and as suchdefendant-9 could not act as a member of the Managing Committee.

14. Now coming to his appointment as Hon. Secretary-cum-Treasurer, it is true that the rules of the association is silent as to the manner in which the Hon Secretary-cum- Treasurer shall be appointed. All that the rules provide is that the Secretary of the school shall always be an Ex-officio member of the association and the treasurer. It cannot be disputed' that the general body of the Association is the supreme body in the matter of conducting the affairs of the association. It is the general body that is invested with the power of electing the President, Vice-President and 5 members of the governing council. The administration of the Association is entrusted to the governing council so constituted. It is further provided in the rules that the Secretary shall be the Chief Executive Officer of theAssociation. Besides, he is invested with vast powers in the affairs of the Association such as calling for the meetings, both general body as well as the Committee meetings maintaining the minute book in which all proceedings of the meeting shall be recorded, corresponding on behalf of the association and to beincharge of the affairs of the association and all its records, maintaining of accounts of the association, making disbursement, receiving of money on behalf of the association and he will have the general power of supervision over the institution run by the association. He shall arrange for the proper custody of all the articles and things belonging to the association both moveable and immoveable and he shall be the custodian of all the funds and investments of the Association and operate on the current account of theAssociation. Thus, it is seen that the Secretary-cum-Treasurer is a very important post of the Association. The field ofselecting a person to be the Secretary-cum-Treasurer of the Association is not limited either among the members of thegoverning council or that of the general body. The field is still larger and a person who is not a member of the governing council or that of a general body could be appointed as the Honorary Secretary-cum-Treasurer and the moment he is so appointed he would be an Ex-officio member of theAssociation by virtue of his position as Honorary Secretary and he would automatically become the Treasurer. Evidently the governing council is a creature of the general body and the governing council is invested with certain duties and powers in the affairs of the Association. Since the power ofappointing Honorary Secretary-cum-Treasurer is not given to the governing council under the rules, it is difficult to postulate that the governing council would have the power to appoint Honorary Secretary-cum-Treasurer in the absence of any specific provision in the Rules or under the Act. In the absence of any specific provision respecting the appointment of the Honorary Secretary-cum-Treasurer, either in the rules or under the Act, it seems to me, that power would only vest in the general body which is the supreme body inconducting the affairs of the Association. The view I take on this aspect gains support from the conduct of the Business of theAssociation itself) as not only at the general body meeting held on 21-12-1980 but even on previous occasions theappointment of the Honorary Secretary-cum-Treasurer was made by the general body and not by the governing council. The proceedings of the extraordinary general body meeting Ex-PI (a) shows that plaintiff-3 was appointed an HonorarySecretary-cum-Treasurer of the Association by the general body and not by the Managing Committee. Although the brief report of the progress of the institution submitted bydefendant-9 to the general body meeting held on 21-12-80 indicates that apart from the one general body meeting held on 17-5-1965, on other general body meeting was held till 21-12-80, the minutes book Ex. PI shows that two other general body meetings were held, one on 31-3-70(proceedings vide pages 31 to 35) and another on 30-5-71 (proceedings vide pages 46 to 50) wherein office-bearers including the Secretary and the Treasurer were elected by the general body, although there is no provision under the Rules to-elect the Secretary and Treasurer. However, the fact remains that the authority to elect or appoint a Secretary andTreasurer or Secretary-cum - Treasurer could be traced only in the general body and not in the Managing Committee. Even PW-1 in his evidence has stated that one Mr. Ethish was the Secretary during January 1980 and till he handed over charge to defendant-9 Secretary would be appointed by the general body. All these material would clearly go to show that the appointment of the Secretary-cum-Treasurer could only be by the general body and not by the Managing Committee, That being the position, 1 am inclined to hold that the appointment of defendant-9 as Honorary Secretary cum-Treasurer by the Managing Committee was wholly illegal, and defendant-9 could not have acted as such in relation to the Association.

15. It is true that the rules of the association empower the Secretary to call for general body meeting and other committee meetings as and when deemed necessary ; but the rules do not provide for the mode of calling special orextraordinary general body meeting of the Association. However, sub-section (3) of Section 11 of the Act provides for the mode of calling a special general meeting. It lays down that a special general meeting may be convened at any time on the requisition of the President or the Chairman if any of the Governing Body or on the requisition of not less than l/3rd of the total number of members of the society entitled to vote who shall, on a written requisition state the business for which they wish the meeting to be convened and there upon the governing body shall within the stipulated time mentioned in sub-section (3) should call for a special general meeting. In the instant case, since defendant-9 could notfunction as the Hon. Secretary-cum-treasurer of the Association, he was incompetent to call either the general body meeting or the other committee meetings as stipulated under therules. Even otherwise, assuming but not granting, that defendant-9 was the Hon. Secretary-cum treasurer of the Association, still he could not have convened a meeting in pursuance of the notice Ex. P- 2, as the notice Ex. P 2 he issued was for the extraordinary general body meeting of the Association and not the annual general body meeting. This is clear not only from the notice Ex. P2 but also from the proceedings of the general body meeting Ex. P. l(a) convened on 21-12-1980 that it was anextraordinary general body meeting of the association although one of the subjects on the agenda was to elect theoffice-bearers. The notice Ex. P.2 further shows that defendant-9 took steps to convene the extraordinary general body meeting as per the request of the members of the general body. This would further indicate that the general body meeting held on 21-12-1980 was not the annual general body meeting to be called in the normal course. Once it is shown that the general body meeting called on 21-12-1980 was an extraordinary or a special general body meeting, then sub-section (3) of Section 11 of the Act would apply for the mode of convening the said meeting. Although the notice Ex. P. 2 shows that defendant-9 took steps to call for the meeting as per the request of the members of the general body,no material has been placed to show that atleast l/3rd of the members of the society entitled to vote gave a written as requisition as required under sub-section (3) to call for the special general meeting nor it is shown that that meeting was called on the request of the President of the Governing Body. Such being the case, it is difficult to hold that the extraordinary general body meeting of the association held on 21-12-980 was legal and lawful.

16. Let me now consider as to what had transpired at the meeting held on 21-12-1980.

There is serious dispute between the parties whether all the members associated and participated at the meeting held on 21-12-1980 were the members of the association andentitled to vote and whether the business transacted including the election of the office bearers and the members of the managing committee and the appointment of the Hon. Secretary-cum-treasurer was legal. Rule 1 of the Rules provides for the mode of becoming a member of the association. Sub-section (b) of Section 2 stipulates that a member who is entitled to vote or to be counted as a member must have been admitted to membership of the society in accordance with the rules and regulations thereof and who has paid his subscription and has signed the roll or list of members thereof and had not resigned his membership in accordance with such rules and regulations and who has not been in arrears of subscription for a period exceeding 3 months. Admittedly no roll or list of members whose membership were valid under theprovisions of the Act and the Rules as on the date 21-1-1980 has been produced in the case. The plaintiffs relied upon the number of signatures to the proceedings of the meeting held on 21-12-1980 as evidenced by Ex.P.l (a) and also upon a receipt book Ex. P. 21 for having received the subscription fee from the members for the year 1980 to show the valid membership of the association as on 21-12-1980. On the other hand, the defendants have produced Ex.D. 3 said to contain the names of the valid members of the association as on 21-12-1980. It is seen from Ex. P. 21 that it contains receipt Nos. 1 and 25 for having received a sum of Rs.3/- each by way of renewal of membership of the association for the year 1980. All these 25 receipts bear the date 19-1-1980. It is also revealed from Ex. P. 1 (a) that 23 members had attended the meeting dated 21-12-1980 and they had put their signatures for the proceedings of the meeting. It is found that out of 25 persons said to have paid the renewal of membership fees as shown at Ex.P. 21, 21 persons have attended the meeting on 21-12-1980 and signed the proceedings Ex.P.l(a) and persons did not attend. on 21-12-1980 were the members of the association andentitled to vote and whether the business transacted including the election of the office bearers and the members of the managing committee and the appointment of the Hon. Secretary-cum-treasurer was legal. Rule 1 of the Rules provides for the mode of becoming a member of the association. Sub-section (b) of Section 2 stipulates that a member who is entitled to vote or to be counted as a member must have been admitted to membership of the society in accordance with the rules and regulations thereof and who has paid his subscription and has signed the roll or list of members thereof and had not resigned his membership in accordance with such rules and regulations and who has not been in arrears of subscription for a period exceeding 3 months. Admittedly no roll or list of members whose membership were valid under theprovisions of the Act and the Rules as on the date 21-1-1980 has been produced in the case. The plaintiffs relied upon the number of signatures to the proceedings of the meeting held on 21-12-1980 as evidenced by Ex.P.l (a) and also upon a receipt book Ex. P. 21 for having received the subscription fee from the members for the year 1980 to show the valid membership of the association as on 21-12-1980. On the other hand, the defendants have produced Ex.D. 3 said to contain the names of the valid members of the association as on 21-12-1980. It is seen from Ex. P. 21 that it contains receipt Nos. 1 and 25 for having received a sum of Rs.3/- each by way of renewal of membership of the association for the year 1980. All these 25 receipts bear the date 19-1-1980. It is also revealed from Ex. P. 1 (a) that 23 members had attended the meeting dated 21-12-1980 and they had put their signatures for the proceedings of the meeting. It is found that out of 25 persons said to have paid the renewal of membership fees as shown at Ex.P. 21, 21 persons have attended the meeting on 21-12-1980 and signed the proceedings Ex.P.l(a) and persons did not attend. Apart from these documents, the plaintiffs have notproduced any supporting piece of material to show that the persons mentioned in Ex. P. 21 as well as those signed the proceedings Ex. P. l(a) were the valid members of theAssociation entitled to vote as on 21-12-1980. Similarly much value cannot be attached to Ex. D. 3 the document produced by the defendants. Even they have also not produced any supporting material to show that the persons mentioned in Ex. D. 3 were the valid members of the Association entitled to vote as on 21-12-1980 and among them only a few who had gone to the meeting had signed Ex. D. 3. Thus, it is fairly clear from the available material that each party is attempting to place before the Court, lists of names ofcertain persons said to be the members of the Association without proof of their valid membership of the Association. In this view of the matter, there is no escape from reaching the conclusion that the meeting held on 21-12-1980 cannot be said to be the legally constituted general body meeting and the 'Shivaswamy Committee' constituted at that meeting also not legal and lawful entitled to represent the institution.

19. Sri Satyanarayana, Learned Advocate appearing for the plaintiffs however contended that since the rules are silent as to the mode of appointment of the Secretary and Rule 3(c) provides that the Secretary shall always be an ex-officio member of the Association and the treasurer, there is nothing illegal in appointing the Hon. Secretary-cum-treasurer by the Managing Committee which is vested with the management of the institution and in that view, it must be hold that the Managing Committee and not the general body that could appoint the Hon. Secretary-cum-treasurer, as Secretary is to be appointed and not elected and the area of selection is not confined to the members of the Association only but it is wide open. Even otherwise, it was his submission that theappointment of defendant-9 as Hon. Secretary-cum-Treasurer by the Managing Committee was presumed to have been ratified by the general body at its meeting held on 21-12-1980 as none had questioned the legitimacy of the general body meeting called by him.

20. I do not find much force in these contentions. Even at the meeting held on 21-12-1980, in which 'Shivaswamy Committee' was constituted, it is said that the 3rd plaintiff was appointed as Secretary-cum-treasurer, by the general body. Besides, there were earlier instances where the general body took action to appoint the Hon. Secretary-cum-treasurer. Merely because the Managing Committee is vested with the powers to carry on the management of the institution, that by itself would not empower the Managing Committee in the absence of any specific provision in the rules to appoint the Hon. Secretary-cum-treasurer, animportant executive post of the institution. If really it was intended that such a power should be given to the Managing Committee, there would have been ho difficulty for making a provision in that regard, especially when the duties and the powers of the President, Vice-President and the Secretary have been elaborately enumerated in the rules.

21.Similarly I do not find much force in the submission that the general body deemed to have ratified the action of the Managing Committee at its meeting held on 21-12-1980 as no one had raised any objection. If ratification of the general body is necessary to validate the action of the Managing Committee, it would go to show that the Managing Committee, has no exclusive authority to appoint the Hon. Secretary-cum-treasurer and it is the general body alone that could appoint him.

22.Sri Satyanarayana next contended that the general body meeting called by defendant-9 was in conformity with sub-section (3) of Section 11 as the notice Ex. P. 2 shows that the general body meeting was called as per the request of the members of the general body. I have already dealt with this aspect in the earlier portion of this judgment and I do not want to repeat the discussion as there is no material produced in the case to show that not less than 1/3rd of the total number of members of the Association entitled to vote had given a written requisition as required under Section 11(3) of the Act to Call for the meeting. From the very fact that no written requisition was produced in the case, it has to be held that the meeting convened on 21-12-1980 was not convened on the requisition of the required number of members of the Association as stipulated under sub-section (3) of Section 11.

23. Lastly Sri Satyanarayana contended that thedefendants are estopped from questioning the validity of the general body meeting held on 21-12-1980 and also theconstitution of the Managing Committee headed by Shivaswamy since defendants 1, 3 and 4 not only look part in thedeliberations of the general body at which the Managing Committee was constituted, but also participated in the subsequent committee meetings without questioning the legality of the general body meeting and also the legitimacy of the Managing Committee. In support of this contention he placed reliance on a ruling of the Madras High Court in S. Krishna Swamy v. S.I. Film Chamber, : AIR1969Mad42 .

24. It is not in dispute that among the defendants, defendants 1, 3 and were shown to be the members of the 'Shivaswamy Committee' constituted at the general body meeting held on 21-12-1980. Among them, the 1st defendant was shown to have been elected as the Vice-President and defendants 3 and 4 as members of the Managing Committee. It is the case of the plaintiffs that those members who had attended the general body meeting on 21-12-1980 had signed the proceedings Ex. P.l(a). Admittedly the defendants l.3 and 4 did not sign the proceedings nor there is any indication to show that they had attended the general body meetingand refused to sign the proceedings. They were elected to the Governing Council in their absence. In fact, the 3rdplaintiff had raised objections for electing plaintiffs 4 and 5 and defendants 3 and 4 and another Viswanatha Rao as members of the Managing Committee in their absence on the ground that they were absent and without their consent andmembership they could not be elected as members of the Managing Committee. However, the President over-ruled hisobjections and thus they were elected as members of the Managing Committee in their absence. Thus it is seen from Ex. P.1(a) that defendants 1, 3 and 4 had not taken part in the deliberations of the general body meeting in which'Shivaswamy Committee' was constituted.

25. However, Sri Satyanarayana pressed into service the evidence of defendant-1 to show that he had participated in the general body meeting held on 21-12-1980. The 1st defendant has stated in his evidence as D.W.1 that as on 21-12-1980, the members of the society were as per the list Ex. D. 16. There were according to him in all 29 members then. He has further stated that the notice issued by the 9th defendant calling for the extra-ordinary general body meeting was without jurisdiction and so void and notbinding upon the defendants and the institution, that Ex. D.4 is the acknowledgment containing the signatures of some of the members for having received the notice of themeeting, that Ex. D.4(a) is the signature of P.W.1 and Ex.D.4(b) is his signature, that after the receipt of the said notice he and some members went to the school on 21-12-1980, that the members went to attend the meeting, signed the attendance roll as per Ex.D. 3, that Ex.D.3(a) is his signature, thatnumber of non-members brought by P.W.1 were found present in the meeting hall that there was exchange of words between him and some members of the Association on the one hand and the supporters of P.W.1 on the other and thereafter P.W.1 went away along with his supporters including the non-members whom he had brought and then he and other members also went away.

26. On the basis of this evidence of defendant-1, it is difficult to hold that defendants 1, 3 and 4 took part in the deliberations of the general body meeting held on 21-12-1980. On the other hand, his evidence strongly suggests that on 21-12-1980,two warring parties appeared to have decided to show their strength at the meeting called on 21-12-1980 and in view of the disturbed situation, both parties must have left the meeting venue and thereupon P.W. I and hissupporters might have held a meeting and constituted theShivaswamy Committee' in which the names of defendants 1, 3 and 4 were also included in their absence.

26A. Now turning to the Committee meetings held on 6-2-1981 and 28-2-1981, defendant No. 1 (D.W. 1) denied having attended the meetings and further stated that theproceedings book of the alleged committee meetings Ex.P. 7 was a bogus and got up one although the 3rd plaintiff (P.W. I) spoke about the meetings and the entries in the proceedings book Ex. P.7. However, it is seen from Ex.P. 7 itself that the very second meeting of the Managing Committee was adjourned sine die on account of the indecent behaviour of defendants 4 and 9 at the meeting. Thus 1 find noconvincing and satisfactory evidence to show that defendants 1, 3 and 4 had participated in the proceedings of the Committee meetings.

26B. The next question arises for consideration is whether on these materials, could it be said that either defendants 1, 3 and 4 or defendants 1 to 9 all put together are estopped from contending that the general body meeting called on 21-12-1980 and the 'Shivaswamy Committee' constituted at thatmeeting are not legal and valid.

27. The rule of estoppel as laid down under Section 115 of the evidence Act reads;

'When one person has, by his declaration, act or omission,intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing '

The suit was brought by the plaintiffs on the ground that they are the legally elected members of the governing council of the institution along with defendants 1, 3 and 4 and the relief they sought in the suit is based upon their position as such on behalf of the institution. It is clear from the material produced in the case that defendants 1, 3 and 4 did not take part in the proceedings of the general body meeting held on 21-12-1980 and they were elected as the members of the governing body in their absence. The stand taken by the defendants 1 to 9 in the suit is that the general body meeting held on 21-12-1980 as well as the Shivaswamy Committee constituted are not valid and legal and as such the said committee, of which defendants 1, 3 and 4 were also members cannot represent the institution. If the members of the Shivaswamy Committee made any declaration orrepresentation and thereby caused or permitted any other person to believe and act upon it, the conduct of defendants 1, 3 and 4, in that respect would not attract the plea of estoppel in a litigationinters between the members of Shivaswamy Committee. As regards defendants 2 and 5 to 9, it cannot be said that they took part either in the general bodymeeting held on 1-12-1980 or in the Committee meeting held subsequently. That being so, equally the plea of estoppel cannot be extended against them also. Thus, 1 find on the basis of the material produced in the case, the plaintiffs cannot successfully urge the plea of estoppel againstdefendants 1 to 9.

28. The same conclusion could be reached from another route. The contention raised by defendants 1 to 9 in the suit is that the alleged general body meeting held on 21-12-1980 cannot be said to be the general body meeting of theinstitution in the eye of law as it was held in contravention of the provisions of the Act and the Rules. It is their further case that the same thing could be said in respect of Shivaswamy Committee also. Assuming that defendants l, 3 and 4 had taken part in the deliberations of the meeting held on 21-12-1980 and they were elected as members of thegoverning council with their consent, still the question arises for consideration will be whether they could be prevented by the plea of estoppel to contend in the suit brought by theplaintiffs that the governing council of which they were the members and the general body meeting at which the said governing council was elected are not in accordance with law and thus will not have any legal sanctity. It is necessary to notice that defendants 1,3 and 4 themselves did not bring a suit questioning the validity of the election of the plaintiffs nor it is a suit brought by them claiming any relief against the plaintiffs on the basis of the invalidity either of the general body meeting held on 21-12-1980 or the election of Shivaswamy Committee at that meeting. On the other hand, they are resisting a suit brought by the plaintiffs on the strength of the validity of the constitution of Shivaswamy Committee at the general body meeting held on 21-12-1980. When it is contended by the defendants that the general body meeting as well as the constitution of ShivaswamyCommittee both were in contravention of the provisions of the Act and the Rules, could it be said that they are estopped from disputing the validity of the meeting held and theconstitution of Shivaswamy Committee on the ground that they have either acquiesced to the procedure adopted or took part in the deliberations when the challenge is based upon the contravention of the provisions of the Act and the Rules. In Krishnaswami Reddiar v. Nedukalayan, 75 Law Weekly, 409 a similar question came up for consideration before a Bench of the Madras High Court. That case arose out of an election of the President of Muthiyampalayam Panchayat Board in Thiruclirapalli District. There were 15 members of Panchayat. Four of them competed for the office. The number of votes secured by them were respectively 4, 3, 3 and 1. The Returning Officer declared one Nedukalayan. who had secured the largest number of votes duly elected. The election and the declaration that followed was however, in complete disregard of Rule 5 of the Rules relating to the Conduct of Election of President and Vice-president of Panchayats which provided a particular procedure for the election. After the declaration of the result, the appellant Krishnaswami Reddiar who was one of the candidates for the Presidentship and got defeated at the election, filed a Petition to set aside the election of Nedukalayan before the Election Commissioner. TheElection Commissioner dismissed the Petition holding that although there had been a non-compliance with the rules, the appellant had not proved that the result of the election had been materially affected. This view was accepted by the Learned Single Judge of the Madras High Court in a Writ Petition filed by the appellant under Article 226 of theConstitution to quash the order of the Election Commissioner. Thus the appellant carried the matter in appeal before the Division Bench. In the course of the arguments, acontention was raised by the advocate appearing for Respondent-1 that as the appellant had acquiesced in the procedure adopted by the Returning Officer, it would not be open to him to challenge the election. Rejecting the contention, His Lordship Chief Justice Ramachandra Iyer who spoke for the Bench observed :

'Ws fail to see how the mere acquiescence of a candidate, assuming that there was such acquiescence can make the purported election held on 12th September 1958 other than what it was, namely, no election in the eye of the law. An election will be valid only if it conforms to the rules. There can be no estoppel if a contravention thereof takes place with the assent of the candidate, for there can be no estoppel against a statute or statutory rule. Nor can the candidates by their consent invent a new procedure for ascertaining the will of the majority.'

Similar view was taken by the Supreme Court in S.B. Noronah v. Prem Kumari, : [1980]1SCR281 wherein it was held that the doctrine of estoppel cannot be invoked to render valid a proceeding which the legislature has, on grounds of public policy,subjected to mandatory conditions which are shown to be absent.

29. The decision in Krishnaswamy's case relied on by Sri Satyanarayana, in my opinion could not apply to the facts of the case. The facts of that case were these :

South Indian Film Chamber of Commerce was a registered society under the Societies Registration Act. TheChamber was governed by its Memorandum of Association and Rules with regard to all its activities including the election or nomination of its office-bearers. The principal office-bearersof the society were the President, two Vice-Presidents, two Hon. Secretaries, one Treasurer and 22 committeemembers. These office bearers were elected every year at a general body meeting convened for that purpose. A general body meeting was convened on the 11th June 1967 in the premises of the Chamber at which 676 members out of the totalnumber of 1600 members attended and participated at the meeting. The office-bearers and the Committee members as stipulated under the Memorandum of Association and the Rules were all elected. The plaintiff not only participated and contested the election but also acted as a Teller.Immediately after the election of the office-bearers, on the same day, Nagireddy, the president, announced the results. All the office-bearers elected were inducted in their respective offices. There was no action of protest or objection at the time of announcement of the results. The newly elected office-bearers were functioning as such from 11-6-1967. However, the plaintiff who contested for the Secretary's posiand lost, brought the suit for a declaration that the election of defendants 4 to 12 for the year 1967-68 to the office of the Secretary and the members of the Committee was illegal and ultra vires and also for a perpetual injunction restraining all the office-holders of the Chamber, defendants 2 to 21 from holding any office in the Ist defendant-chamber pursuant to the election held on 11-6-1967. He also filed two applications, one for interim injunction restraining Respondents 1, 4 and 5 from holding a meeting on 21-6-1967 for co-opting aPresident, a Vice President and five other members of the Committee pending disposal of the suit and the other was for an interim injunction restraining the 1st defendant-society from allowing the office-bearers elected at the general body meeting on 11-6-1967 from holding their office. In both theapplications, the order of interim injunction was passed. The Respondents after entering appearance filed applications for vacating the interim orders. An argument was advanced by the Learned Advocate appearing for Respondents resisting the prayer sought by the plaintiffs for interim orders ofinjunction on these lines .

'Even assuming (without conceding so in any manner whatsoever) that there had been any violation, infringement or non-compliance of any of the provisions of the Rules, this practice has been in vogue for several years and the office bearers who were elected in accordance with suchuniform practice, have been functioning all these years, without any challenge or question, that this practice in the course of these long years is itself an indication that the rules which are after-all framed for the internalmanagement and for safeguarding and protecting the interest of the members have been understood in that sense, that is, whether obligatory,mandatory or directory that the plaintiff who has been in the Executive Committee on prior occasions had full knowledge and was fully alive to thesealleged violations and infringements of the rules, that above all, with full knowledge of these alleged violations and infringements of the rules, he participated in the elections, contested for a seat, took a chance of his being elected on the basis of the votes of these alleged disqualified voters, that he never raised anyobjection satany stage with respect to any of the matters now complained by him and that under these circumstances, the plaintiff should not be entitled to ask for the discretionary relief of a declaration about the validity of the election, much less would he be entitled to the discretionary relief of an interim injunction pending disposal of the suit.'

The learned Judge having considered the principles which govern the grant or refusal of an interim injunction in aid of the plaintiffs right in para 13 of the judgment, ultimately observed in para 25 as follows :

'It is established law that if in such a situation when a party who has acquiesced in the election to which he objects or he is raising an objection which might have been put forward against himself of aprevious election or in the same election, he participated n the election,contested for a seat in the election, the court in the exercise of its discretion refuse to award him any relief.... '

30. A careful reading of the whole of the discussion with particular reference to the pointed observation of the learned Judge against thebackdrop of the principles governing the grant or refusal of an interim injunction which is adiscretionary relief sought by a party is a suit challenging the validity of an election on the ground that the election was held contrary to the rules and the procedure governing the election and in which he participated with the full knowledge of the contravention of the rules andadoption of the irregular procedure should not be allowed to turn round and say that the election was not validly held and seek the discretionary relief at the hands of the Court. Granting or refusal of declaratory relief and injunction which are in the discretion of the Court depend upon variety of circumstances including the particular conduct of the party seeking for such a relief. The same principle in my opinion will not apply in the case of a party who is defending an action brought against him by a party representing theinstitution claiming authority arising out of an election held contrary to the rules governing theinstitution even though he had participated in the proceedings of the election. However, the ratio of the decision in Krishnaswamy's case in my opinion, does not apply to the facts and circumstances of the case.

31. On a careful consideration of the entire material produced in the case, I am inclined to agree with thecontention urged by Sri Chakrabhavi and hold that the Shivaswamy Committee constituted at the general body meeting held on 21-12-1980 was not the one, lawfully constituted and as such it could not be lawful management of the institution. The Learned Trial Judge in holding otherwise had notconsidered all the relevant materials and as such the view taken by him on issue No. 1 is erroneous.

POINT. NO. 2

32. This takes me to the next point urged by Sri Chakrabhavi that the suit was not properly instituted as the Secretary by himself could not bring the suit on behalf of the society without a proper resolution of the Managing Committee as provided under Section 15 of the Act. On this basis, he argued that the suit brought by the plaintiffs is not maintainable. In support of this contention reliance was placed on a ruling of the Punjab and Haryana High Court in P.A. Club v. Labour Court, Ludhiana, .

33. Section 15 provides that every society registered under the Act may sue or be sued in the name of the President, Chairman or Principal Secretary or the Trustees as shall be determined by the rules and regulations of the society and in default of such determination in the name of such person as shall be appointed by the governing body for the occasion. Admittedly there is no provision made in the rules of the institution in whose name the institution may sue or be sued. In the absence of any such provision in the rules, the latter partof Section 15 would come into operation i.e., the institution may sue or be sued in the name of such person asshall be appointed by the governing body for the occasion. Admittedly the plaintiffs have not produced any material to show that the Secretary was appointed by the Governing Body to bring the present suit against the defendants in the name of the institution. Thus it is clear that the Secretary was incompetent to bring the suit on behalf of the institution in his name and such being the position, the suit brought by him must be held not maintainable. This view taken by me gains support from the ruling of the Punjab and Haryana High Court in P.A. Club's Case. That was a case relating to an appeal brought by a Manager of a society registered under Section 6 of the Societies Registration Act, 1860(Central Act 21/1860). The ratio of the said decision has been succinctly summarised under the Head Note reads :

''Section 6 empowers a registered society to sue or be sued in the name of its President, Chairman or Principal Secretary etc. as shall be determined by its rules and regulations. Where there is no suchprovision in the rules and regulations, a resolution empowering or authorising some one in this regard will have to be passed by the governing body of the society.

In the absence of any rules and regulations or a resolution of its governing body authorising the manager to file the appeal, the appeal filed by the Manager is incompetent'.

The language and content of Section 6 of the Societies Registration Act, 1860 are identical with the language and content of Section 15 of the Act. Thus the view taken by the Punjab and Haryana High Court in P.A. Club's case fully supports the view, I take in this case.

34. However, Sri Satyanarayana, Learned Counsel appearing for the plaintiffs contended that the provisions of Section 15 of the Act does not apply to the present case as the present suit is not one brought by the institution as such but in substance it is a suit between two groups of persons who are concerned with the affairs of the institution. Alternatively he argued that since majority of the members of theGoverning Council have filed the suit, it must be deemed that there was an implied consent by the governing body to bring the suit on behalf of the institution in the name of the Secretary. I am constrained to observe that I am not very much impressed with this submission.

35. Firstly it cannot be said that the suit is not one brought on behalf of the institution. The 1st plaintiff in the suit is the institution represented by its Secretary. The other plaintiffs are some of the members of the governing body including the President and the Secretary. The relief claimed in the suit is for a declaration that the 'Sajjan Committee' consisting of defendants 1 to 9 constituted at the meeting held on 8-3-1981 is illegal, unconstitutional and opposed to the rules of the institution and for a permanent injunction restraining them from interfering with the management of the institution by the 'Shivaswamy Committee'. The further relief of mandatory injunction or direction sought against the 10th defendant is to allow plaintiffs 2 and 3 to operate the account of the institution opened with the 10thdefendant, obviously in their capacity as President and Secretary of the institution. The plaintiffs 2 to 6 could not seek these reliefs either collectively or in their individual capacity. The relief sought in the suit is essentially a relief sought on behalf of the institution against defendants 1 to 9 whothemselves claim to be the members of the governing body of the institution. Total being the position, it cannot be said that the suit is one between two groups of persons concerned in the affairs of the institution and not one brought on behalf of the institution. Equally, it cannot be said that since the suit was brought by majority of the members of theShivaswamy Committee'. there was an implied consent or authority given by the Governing Council to the Secretary to bring the suit on behalf of the institution in his name so as to sustain the argument that Section. 5 had been complied with. Thus I hold under this point that the suit brought by the institution in the name of the Secretary is whollyincompetent and unsustainable.

POINT NO. 3 :

36. The last point urged by Sri Chakrabhavi was that there was no illegal or unlawful interference by defendants 1 to 9 in the management of the institution. This argument appears to me on the face of it is unsustainable.

37. The Trial Court under issue No. 2 has reached the conclusion that 'Sajjan Committee' constituted bydefendants 1 to 9 on 8-3-1981 was illegal, unconstitutional and opposed to the rules of the institution. This finding has not been challenged before me in this appeal. Similarly, it was not contended that the defendants have not interfered with the affairs of the institution in their capacity as members of the Sajjan Committee. There is enough material to hold that one or the other defendants 1 to 9 has or have interfered in the affairs of the institution, in particular regarding the operation of the account of the in stitution with the 10th defendant by plaintiffs 2 and 3. Once it is held that the 'Sajjan Committee'' has no legal status to function as the governing body of the institution, any act on the part of any of the members of the Sajjan Committee must be held illegal or unlawful interference in the affairs of theinstitution. In the light of the stand taken by the Learned Counsel appearing for defendants 1 to 9 with reference to thefindings of the Trial Court on issue No. 2, it should be held that there was illegal and unlawful interference by the members of the Sajjan Committee as contended by the plaintiffs.

38. The Act contemplates and lays down a detailed procedure as to the manner in which the management of a society registered under the Act should be conducted year after year. Authorities have been named in the Act to keep vigilance regarding the constitution, working and financial condition of the registered society. If the governing body of the society which is vested with the powers ofmanagement fails to carry out the duties and responsibilities entrusted to it as per the provisions of the Act, provisions have been made in the Act empowering the Registrar and the Stale Government to step in and put the matters of the society straight and see that the management of the society is carried on effectively and in accordance with law. Various offences under the Act are specified and the penalties prescribed therefor. With all these checks and balances provided under the Act, I am constrained to say that a very sad picture has been placed before the Court about the conduct of the affairs of the institution right from its inception. Records placed before the Court would show that in all these long 19 years, apart from the controversial general body meeting held on21-12-1980, hardly two other general body meetings appeared to have been held, although it was said that one of them was the 7th General Body Meeting. I need not repeat as to what has been going on since 21-12-1980 regarding the conduct of the affairs of the institution. Whoever was at the helm of affairs of the institution during these long 19 years, it appears to me, none among them had acted in accordance with the provisions of the Act and the Rules of the institution in conducting its affairs. Even the officers concerned have not taken any step to put the affairs of the institution straight. Had the officers who have control over the institution been a little diligent, the matter would not have gone on in the manner it had taken place. The Managing Committee said to have been constituted have outlived their terms. General Body Meetings have not been convened for years together. Mandatory provisions like Sections 11 to 13 of the Act appeared to have been followed more in breach than in obedience and there by the interest of the institution was totally disregarded. But still no proper step was taken to reconstitute the Managing Committee in accordance with the provisions of the Act and the Rules and put the affairs of the institution straight.

38. Keeping these factors in view and also on the basis of the conclusion I reached in the course of this judgment, I proceed to make the following order :

(i) The findings of the Trial Court on issue Nos. 1 and 4 are reversed and hereby set aside.

(ii) The findings of the Trial Court on issue No. 2 and on issue No. 3 to the extent that the interference by defendants 1 to 9 in the affairs of the society is lawful are confirmed

(iii) The Registrar of Societies under the Act is hereby directed to take immediate steps under Section 25 of the Act and to take all actions to place the affairs of the institution straight in accordance with law.

(iv) In the meanwhile, the Committee of the institution functioning prior to 21-12-1980 is directed to manage the affairs of the institution in accordance with the provisions of the Act and the Rules of the institution.

(v) The 8th defendant who is said to be incharge of the affairs of the institution by virtue of the interim order of the Trial Court as well as of this Court is directed to render an account of her management to the Registrar.

39. The appeal is partly allowed and the suit is dismissed subject to the above findings.


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